New-York tribune., 1867-01-01

offenses either Of soldiers civilians unless in OF
Cling necessity which juses what 10 compels, or
Mt least nsures acts Of indemnity from the justice OF the
Legislature. We by means assert that Congress can
establish and apply the laws OF war where no war mas been
declared exists Where peace exists the laws OF peace
prevail What do maintain is that when the nation
is involved in aud some portions Of the country are
invaded, and all exposed TO INVASION IT - Wlthln
the power of Congress 10 determine in what States
districts such great and public danger exists as ses
the authorization Of military tribunals for the tal3 OF
crimes and Oenses against the discipline security ofthe
army or against the public safety In Indiana Tor exam
pie at the time Of the arrest Of Milgan and his cocOh
spatOrs, is established by the papers In the record ta
the state was military district was the the"ter OF mill
tary operations, had been actually invaded and was con
santly threatened with invasion II appears, Also at
powerful secret assOcation composed of citizens and 9th
conspiring against the draft and plotting inslrrec;on
the liberation of the prisoners OF war at various dcpots
the seizure OF the State and national arsenas armed co
operation with the enelny, anu war against te N0hal
Government. We cannot doubt that IN such time ~
public danger Congress had power under the Cousu-
tiou 10 provide for the organization OF Military Commits
si0n and for trial by that Commission or persons en-
Courts were open was regarded by Congress as suf
ficent reason for not exercising the power, but hat
TO exercise 1t. Those Courts might be open aud
undsurbed In the execution Of their functions ana ye
punish with adequate prOmptitnde ana certainty the
guilty cOnspraOre In Indiana the Judges ana oito9
of the Courts were Oyal.tO the Government. But ~
might have been otherwise In times OF Ie2sIlon @ aI
civil II may often happen, indeed mat Judges ag
Courts their most efficient allies. we nave coz
fined ourselves to the question OF power 49,, ~
was for Congress 10 detern,,nnss 3no I',""fi' -
That body did not see fit to authorize trials Ny
Military Commissions in Indiana, bnt Dy the stro5g
est implication prohibited them. Win tnat prom, ~,
bitOn satisfied and should have renamed SIG u
the answers to the questions certified had Peen PuI u on
that ground without the demal OF Ile eAstcUv W.
power which We believe TO DC cohsIltu1Ioi 1ii
and rortant to the public saetfy5 Seems Gs 10
draw in question the power Of Congress 70 proaect
from prosecuting the msmDsFs 20 OF tbSr g peSr oper
whose action, whether warranted by law or not Was 9I
proved by that upright and patriotic President, under
whose administration the country Wds I%c9JIJu % tLOH
threatened destruction. We have thus far sald te OF
martial law, nor do we propose to say much. Wnat we
have already said suihclently lhdtalcs our oplnloh
that there is law for the Government
for The citizen the armies or tne Nay % Iot rHf
United states witfn American jurisdiction NhH ~ hpt
contained In or derived from the Constitution ana WIth
ever our Army or Navy go beyond our territorial hHls
neither can ~ beyond the authority OF us ItSSS' VI
the legislation Of Congress There ere, under he CoHf'
tuition three kinds Of military jursdcton one to be ex
erciscd both Ia peace and war; another 20 ne eIe ~
time Of foreign without the boundaries OF the nh
states In time Of Rebellion and cyil war Nit"in
states or districts occupied ny htDels ueaMl,u ~
and third 10 be exercised IN tne 81
invasion or insurrection within the limits OF me Oeu
adhesion 10 the National Government when the pubic
danger requires its exercise The hfst OF these may De
called jurisdiction under military law ana is Iou III 'S
Of Congress prescribing rules and articles 81 war OF ohe
wise providing for the government OF the natlOhai
forces The second may be distinguished as
military government superseding as far as
may be deemed expedent, the local Law ara
executed by the military commander unaer Ine uree.p
the President. with the expressed or implied sanction
Of Congress while the third may be denoninated martial
proper and is called into action by Congress or tom
poUrIly when the action Of Congress cannot De lFIr3
and IN the n ustfying eXcus!ng IN ume OF pel
by the President IN times Of insurrectOn or INVASION CT
civil foreign war; within districts or localities where
ordinary law lOhgeT adequately secures pubic |
safety and private rights. We think that tHe |
power Of Congress IN such times and IN fnch |
localities 20 authorize trials for crimes against |
the security and safety Of the national forces may be /
derived from its constitutional authority to raise ana sup
port and declare war, not from It's constitutional
authority 10 provide for governing the national forces
We have apprehension that this power, under our
American system Of government IN which all official |
authority Is derived rom the people exercised under
iircct responsibility 10 the people IS more likely 70 ne
abused than the power 10 regulate commerce or the power
O borrow money We are unwilling 10 give or % assent
silence expressions of opinion which seem 10 ne cal
-uatcd though intended to cripple the constitutional
powers of the Government and 10 augment the public
dangers In times OF terrorism and rebellion
Mr. Justice Wayne, Mr. Justice SwaynC and Mr.. Justice
Miller concur with mc in these views.