The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1867-01-04

CHARLESTON,
Such doctrine leads directly to anarchy or des. q
potisn but tho theory Of necessity on which u ie
based is false for the Government within the Con-
stitution, has all the powers granted to it, which
necessary IT. preserve it's existence as mas oeen
happily proved by the result OF the great effort TO
throw off its just authority.
A guarantee of freedom was broken when Mul!l-
gan was denied O trial by jury. Tho great minus
of the country have differed on the correct nter-
probation to be given to various provisions OF the
Federal Constitution; and Judicial decision has
been often invoked to settle their true meaning
but until recently no one ever doubted that the
right of trial by Jury was fortified in the organic
law against the power of attack. 1t is now as
sailed; but il ideas can be expressed IN words,
and LANGUAGE has any meaning, this r1ght-one
OF the most valuable in tree eountry-ls pre-.
served to every one accused Of crime who ls not
attached to the army or navy or militia IN actual
service.
1t is claimed that martial law covers with its
broad mantle the proceeding of this military COM
mission. The proposition is this: That in q time
Of war the commander of an armed force if in his
opinion the exigencics of the country demand it,
and OF which he is to judge,) has the power, With.
in The lines of his military district to suspend an
civil rights and their remedies, and subject cltl,
IONS as well as solicrs to the rule Of his lcN and
in tho cserciso OF his lawful authority cannot be
restra:nli except by his superior officer or the
Presi lent Of the United States. this position is
serd to the extent claimed, then when war exists,
foreign or domestic and the country is subdvided
into military departments for mere convenience,
the commander Of one Of them can, ii he chooses,
within his limits, on the plea of necessity, with
tho approval of the Executive, substitute military
force for and to the exclusion Of the laws, and
pun. h all persons as he thinks right and proper
witho t tixel or certain rules.
The statement of this proposition shows it's I'M
portance; for if true, republican government Is
failrre and there is end of liberty regulated by
law. Martial law, established on such a basis,
DESTROYS every guarantee Of the Constitution, and
ofIcctually renders the military Independent
of and superior to the civil power"-tbe at :empt
to do which by the King Of Great Britain was
deemed by our fathers Of such an offence that
they assigned it to the world as ono Of the causes
which impellcd them to declare their Independence
Civil liberty and this kind Of martial law cannot
endure together; the nntagonism ls lrreconcllabie
and in the conflict, ono or the other must perish.
1t is lificult to see how the safety Of the coun-
try required martial law in Indiana: Ii any OF
her citizens were plotting treason. the power Of
arrest could secure them until the GoYcrnmont
was prepared for their trial, when the courts were
tect witnesses before civil as military t17bunal
and as there could be no wish to convict except on
sufficient legal evidence, surely an ordained and
established court was better able to judge OF this
than military tribunal composed OF gentlemen
not trained TO the profession OF tho law.
Chief Justice Chase, in delivering the dissent
ing opinion, says that tho third question, namely:
stHad the military commission in Indiana, under
the facts stated, Jurisdiction to try and sentence
MulliSan" must be answered negatively, Is an IN
nvoidable inference from affirmative answers to
the other two. The military commission could
not have jurisdiction to try and sentence Mulligan
If he could not be detained in prison under his
original arrest sentence, after the close - scs
sion Of the grand iury', Wi without lndlctnens OF
He also says cn,phatically: 'sWe think that Con-
gress had power, though not exercised, to eu,
thorze the military commission which was held
in Indiana, but we do not put our opinion, that
Congress might authorize such military com
provide for the government OF the national
forcos We by no means assert that Congress can
establish and apply the laws of war where no war
has been declared or exists.
Where peace exists, tho laws of Eedco must pre-
vail. What we do maintain is, that when the
nation is involved in war; and some portions OF the
country are invaded, and al are exposed to nga-
sion it is within the power OF Congress TO deter,
mine in what States or districts such gIeat anu I
imminent public danger exists as justites the
authorization of military tribunals for the trial OF
crimes and offences against tho discipline or Sc
curity of the army or against the public safety
In Indiana for example, Mt the time OF the arrest
Of Mulligan and his co-consprators 1t II estao,
lishcd by tho papers in the record that the state
was military district; was tho thoatre OF military
operations; had been actually invaded. and was
constantly threatened with invasion. 1t appears,
also, that powerful secret association, composed
Of citizens and others, existed within the State,
under military organization, conspiring against
the draft, and plotting insurrection the Liberation
OF the prisoners of war at various cepots, the Sell
z,re of the State and national arsonals atmod CO.
operation with the enony, and war against the ma
tional government. -.
We cannot doubt that, in such time Of public
danger, Congress had power, under tho Constitu-
ton, to provide for the orga izaton OF military
commission, and for trial BY that commission OF
persons engaged in this conspiracy. The TACT that
the Federal Courts wcro open was regarded by
Congress as a sufficient reason for not exercising
the power; but that fact could not deprive Con-
gress of the right to exercise It,. Those courts
might be open and undisturbed in tho execution OF
avert threatened danger, or to punish, with ade-
quate promptitude and certainty, the guilty con-
spirators.
In Indiana the judges and officers of the courts
were loyal to tho Government. But 1t might have
been otherwise. In times Of rebellion and civil
war it may often happen, indeed, that judges and
marshals will be in active sympathy. with the
rebels, and courts their most efficient allies.
We have confined ourselves TO tho question Of
power 1t was for Congress to determine the
question Of eypcdiency. And Congress did de-
termine il. That body did not SEE fit to author
ize trials by military commission in Indiana, but
by the strongest implication prohibited them:
With that prohibition we are satisfied, and should
have remained silent il the answers TO tho quea-
tons certified hal been put on that ground, with
out denial of the existence OF 6 power which we
believe to he constitutional and important to the
public safety-a denial which, as We have already
suggested, seems to draw in question the power OF
Congress to protect from prosecution the members
OF military commissions who acted in obedience to
their superior officers, and whose action, whether
warranted by law or not, was approved by that up
right and patriotic President under whose adnln-
istration the republic was recued from threatened
destruction.
We think that the power Of Congress-, in such
times and in such localities to authorize trials Tor
crimes against the security and safety OF the ma
tional forces may be derived from its constitu-
tional authority to raiso and support armies and
to declare war; il not from its constitutional au-
thorty 10 provide for governing the national
forces.
We have no apprehension that this power, under
our American system OF government, in which oil
official authority is derived from tho people, and
exercised under direct responsibility to the people,
is more likely to be abused than the power to re-
g,,lato commerce or the power to borrow money.
to expressions Of opinions which seem to us cal
culnted, though not intended. to cripple the con-
stitutional powers of the government, and to aus
mcnt the public dangers in times of invasion and
rebellion.
Mr. Justice Wayne, Mr.. Justice Swayne, and Mr..
Justice Miller concur with mo in these views.
TIE RonAN QUEsr1oN-ADDREss OF THE Pope TO
THE FRENCH TRoops.-rhe Eazaone of Florence,
of December 10, publishes tho following full re-
port of the speech. addressed by The Pope to The
a,G,ore ,,p +l,o Eio,,tv fffb roon,onk of Erencb