Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1867-03-09

: commissions OF tribunals, but this powel
is not commanded. To do 1t is merely
permissive, and is to be used only wheI
in his Judgment it may be necessary fol
: the trial OF offenders. Even If the sen
tence Of a commission were made pre-
requisite to the punishment OF party
y it would be scarcely the slightest re-
s strRint upon the officer who has author
Q ity to organize it as he pleases, preseriot
> its mode of proceedings, appoint ~
members from his own suborolnates, anu
q revise all its decisions. Instead OF nltl'
3 eating the harshness Of his single rule
. such a tribunal would be used much
= more probably to divide the responsiSil-
ity of making it more cruel or unjust;
5 Several provisions dictated by the nu,
manity of congress have been inserted
in the bill apparently to restrain the
power of the commanding otfleer. but
it seems to me that they are or no avali
for that purpose. The fourth section
! provides, LIST. That trials shall not
be unnecessarily delayed. But think L
have shown that the power is given 70
punish without trial, and If so, this pro
vision is practically imperative. "a
Cruel or unusual punishments are not 10
be inflicted, bus who is to decide Wnat Is
cruel and unusual? The words have ae.
quired legal meaning by long use ~
the courts. Can it be expected that mil
itary officers will understand 1t and Ioi-
low a rule in language so purely technl-
cal and not pertaining in the least degree
10 their profession? If not, then such
officer NAV define cruelty according 10
bis own temper, and il not usual, he VIII
make it usual. Corporal punishment,
the gag, the chain and ball, ana
other almost insupportable forms OF tor
ture invented for military punishment
will be within the range OF eholce.
I 3. The sentence of q commission Is net
/ to be executed without approval by the
commander, if it affects life or liberty,
and q sentence of death must be ap-
proved by the president. This applles 10
! cases in which there has been trial ana
| sentence. l take it to be clear, under
4 the bill, that the military commander
NAV condemn to death without even the
4 form of trial by a military commission
Z so that the life Of the condemned may
depend on the will of two men instead OF
one. It is plain that the authority here
given to the military officer amounts 70
! absolute despOtism. But to make 1t stlll
more uncomfortable the bill provides that
/ If NAV be delegated to as many subordl-
mates as he chooses TO appoint, for 1t de-
clares "he shall punish or cause to be
puuishedn Such q power has not been
( welded by any monarch in England for
more than rive hundred years. In
all that time no people wko speak
I the English language have borne
such servitude. 1t reduces the whole
4 population of the ten states, all persons
I of every color, sex and condition. ano
every stranger within their limits to the
most abject and degrading slavery. No
l,.1 rnN un q
Z over his slave as this bill gives to mill
| tary officers over both white and cOlored
persons. 1t may be answered to this
Z that officers of the army are too magnanl-
nous, Just and humane, TO oppress and
trample upon a subjugated people. DO
not doubt that army officers are as well
entitled to this confidence as any other
class of men. But the history Of the
world has been written in vain, II
if does not teach us that unre-
strained authority can never be safely
trusted in hdman hands. 1t has always
been more or less abused, under any cir
cuustances, and it has always resulted
in gross tyranny where rulers who are
strangers to their subjects, come among
them as the representative of 3 distant
power, and more especially when the
mower that sends them is unfriendly.
here proposed have been fully tried in
Hungary and Poland, and the suffering
endured by those people reused the SYM
Dathies of the entire world. It was tried
in Ireland, and though at first tempered
by the principles Of English law, 1t gave
birth to cruelties so atrOciOus that they
are never recounted without just indigna-
tiou, The French convention armed its
deputies with this power and sent them
To the southern departments Of the re-
DubIic, The massacres, murders and
other atrocities which they committed
show what the passions Of the ablest
men in the most civilized society VIII
attempt TO do when wholly unrestrained
hv law. The men of our race, in every
age, have struggled TO tie up the hands
of the governments and Keep them
within the law, because the experience
of all mankind taught them that rulers
could not be relied on to cOncede those
rights which they were not legally
hound TO respect. The head of great
empire has sometimes governed with
mild sway and kindness but an irrespOn-
sible subordinate never yields what the
law does not extort. Between such a
minister and the people subjugated to his
domination, there can be nothing but
enmitv. He Furnishes them If they resist
his authority, and if they submit to it he
hates them for their servility.
I come now to a question which, if
possible, is far more important. Have
we the power to establish and carry into
execution measure like this answer,
certainly not. If We derive our authority
from the constitution, and If we are
bound by the limitations which it pro-
poses, this proposition is perfectly clear,
that no branch of the federal government,
executive, legislativeor Judicial, can have
any lust powers except those which II
derives through and exercises under the
organic law of the Union. Outside of
the constitution we have no legal author
ftv more than private citizens, and within
il we have only so much as that instru-
meut gives US. Hhis broad principle
limits all our functions and applies to all
subjects. 1t protects not only the citi-
zeus Of the United States who are within
the union, but shields every human be-
ing who comes or is brought under our
Jurisdiction. We have no right to do in
one place more than in another that
which the constitution says we shall not
do at all.
If. therefore, the southern states were
in truth out of the union, we could not
treat their people in q manner which the
fundamental law forbids. Some peOBie
assume that the success of our arms, IN
crushing the opposition which was made
in some states to the execution of federal
laws, reduced those states and all their
people, the innocent as well as the guilty,
1 TO the condition of vassalage and gave
/ us a power over them which the con-
stitution does not bestow, or define,
or limit. No fallacy can be more
] fliG (Arr victories GT1h-
/ iected the insurgents to legal obedience,
not to the yoke of an arbitrary despo-
tism. When an absolute sovereign re-
duces his rebellious subjects he may deal
with them according to his pleasure, be
/ cause he had that power before. But
/ where a limited monarch puts down
rebellion, he must govern according to
law. If any insurreetiou should take
plare in one of our states against the
authority of the state government, and
End in the overthrow of those who
MANNED it, would that take away the
rights of all the people of the counties
/ where it was covered by part or ma
iority of the population? Could they
for such reason be wholly outlawed
and deprived Of their representation
in the legislature? l have always
cnnteuded that the government of
. The lulItu ECAhNbc " a. eON NCA . u
its constitutional sphere, that it executed
its laws like the states themgelves, by
employing its coercive powers directly to
individuals, and that it could put down
iusurrection with the same effect as
state, and no other. The opposite doc
trine is the worst heresy of those who
advocate secession, and cannot be agreed
to without admitting that heresy to be
right Invasion, insurreotion, rebellion
and domestic violence, were anticipated
when the government was framed, and
the means of repelling and suppressing
them were wisely provided for in the con-
stitution. But it was not thought neces-
sgTy TO declare that the states in which
they might occur should be expelled from
the union. Rebellions which were inva-
. riably suppressed occurred prior TO that
, one out Of which these questions grow.
, But the states continued to exist and the
! union remained unbroken. In Massa-
, chusetts, in Pennsylvania, in Rhode Is
! land, and in New York, at ditfereut pc
! riods in our history, violent and armed
! 'opposition to the United States was car
, ried on. But the relations Of those states
! with the federal government were moi
, supposed to be interrupted or changed
! after the rebellious portions OF their pop
= ulation were defeated and put down. II
Is true that in these earlier cases there
wss no formal expression Of n determin'
.