The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1867-01-01

l.1AftAitf 81 tAtA
i ( n y IS|I ) \ III LII i x s6sS1.d a.
I'D Duniknc1s ~ military eonnaslop IN States where
s ss: ss I. sssS'sS
Pen. tesscA - s.sso.c:d: = ssshosias ne military
gTsan6 & osr sosclusiena We Win brisny indicate
some q them Ths constitution itsef provides for nil
We 10 MOI unlslsaa1 Il 10 b. claimsd thststha esi
safeguards Of the constitution have application IN cases
within the proper sphere Of the former What then
support armies to provide and maintain navy 70 make
rules for the government end regulation Of this .nd and
Of of' ,bs militia :. nav be- i" .Ss ssrvies cf ths
United States Il Is denied that the power " make
rules for the government Of the army and nsyyis
courts without jury It has been 20 Understood aud
exercised from the adoption OF tbs constitution 70 TIE
.b nGd ~ sha arising Il hs
land and naval forces In the militia in actual ssrv.cs
in time Of war or public DANGER arc expressly ex-
copied from the ffth amendment, "thAt no person
shall be held 10 answer for = capital or other
wise Infamous crime unleae on presentmens or
indictment Of Grand Sory ana ! : admitted s !. .nss ,s
nth. Now, understand this exception 70 have the
Same import and effect as the powers u Congress In
relation the government Of the army and navy and
the militia had been recited in the amendment and
within those powers and had been expressly excepted
from It's operation staes most Jealous q enrroscn
proposing &C sddisioaal safeguards IL the form Of
amendments, excluded speciaoaily from their
land and naval forces mus PROPOSED
that mo person shall be tried FOR any crime BY which he
would incur an infamous punishment or loss or ne un
he be first indicted by Grand jury except In such cases
as may arise In the government ana regulation OF the
land forces. The exception IN similar amendments,
In The same or equivalent terma Tho amendments
proposed by the States were considered by the first
Congress, and such as were approved IN substance
M In fnrtsx md ppou ned ~
States Among those thus proposed and subsequently
ratified was that which now stands the nth amend
amendment intended TO have the same force and
effect az the amendment proposed BY the States We
cannot agree 70 construction which will impose on tho
exception In the fifth amendment otherthan that
obviously indicated by the action OF the State Conven
tions We think therefore, that the power Of Congress
In the government OF the land and naval forccs
and OF the militia Il mot at all affected by the fth Of
any other amendment II Is not necessary 10 attempt
any precise definition Of the boundaries Of this power
But may u not be said that government include
protection and defence as well as the regulation OF nte
nal administration and Is il impossible 70 imagine cas
ton or great injury Of the national forces may SUBJ
jected by Congress TO military trial and punishmcnt y
the just exercise Of this undoubted constitutional powf
Congress but the agent OF the naion and e
security Of individuals against the abuse Of this - o.
every other power depend the intelligence and vir
tue OF the people, their zeal for public and private
liberty upon onical responsibility secured by law ana
upon the frequency OF elections rather than upon doubt
fui constructions Of legislative power I'VE. -
Sfses~sS s~S ~~ssoA
thorize such military commission ~ was held IN In
diana upon the power 70 provide for the government Of
the national Congress has the power not only TO
raise and support and govern armies but 70 declare
has therefore the power to provide BY law for carry
ing on war; This power necessarily extends 70 M legs
ation essential to the prosecution Of war with
ergy success except such inteeres with the COM
and OF the and the conduct Of campaigns That
power and duty belong TO the President - Commander
the constitution but neither ID defined by that instru-
men Their extent must % determined ny Their nature
tuons The power TO make the necessary laws s In Com
gress; the power to execute in the President Both
powers imply many subordinate and auxiliary p0wera
Each includes all authorities essential 70 W. due exercise
But neither can the President than in peay
srsss upon the proper authority Of the rrssden Both
in The Fundamental law. Congress cannot direct the
oonducs Of campaign, nor the President or any 0
mander under him, without the sanction o. C0ngre y
institute tribunals for the trial and punishment o.
III which, u,ss
it compels or, at least, insures scts Of hdemnity
from the Justice Of the Legislature by no means
Of war whore no war has becn declared or exists.
Where peace exists the laws OF peace must prevail
What We do maintain Is, that when the nation y n
volved In war and portions Of the country
invaded and all exposed 70 invasion, 10 within tho
power Of Congress determine in Whist States dis
trcs such great and public danger exists g ustes The
authorization OF military tribunals for the trial OF
and offences against the discipline security Of the
ns me sa %
1t Is established BY the papers IN the record that the State
military district was the theatre Of military ope
rations had been actually invaded and constantly
threatened with INVASION appears also. that pow
cru association composed OF citizens and oherA
existed within the State, under military orsan1ation
the liberation Of the prisoners Of at various depot
the seizure Of the State and national arsenas armed
cooperation with the enemy and war sgainst the
national government. We cannot doubt that In such
time oil publ danger Congress had power Under the
constitution 70 provide for tie organization OF military
octnp uA FIR ny of
sons engaged in the conspiracy The fact that the
federal courts we're open was regarded BY Congress -
q sufficient for not exercising the power, but
that fact could not deprive Congress Of che right
exercise n. Those courts might Be- open ana
undsurbed in the execution Of their functions and yea
Wholly incompetent 10 threatened danger ~ 70
punish with adequate promrtudc and certainty tho
guilty conspIrators In Indiana the judges and orosrs
OF thu courts loyal 20 the government But might
have been otherwise In fmes OF rebellion and civil
u may often happen indeed that judges and marehals
win be IN sc;lve sympathy with me reces sno courts
the question OF power. was for Congress 70 determine
The Of expcdency, and Congress did dctermns
IT, That body did not 1t 70 authorize trials by
military commissions In Indiana, but by the strongest
inpl alton prohibited them. With thai prohibition
are satisfied aud should have remained silent toe an
swers 10 the Questions certified bad been put thas
ground, the denial OF the existence Of power.
which we believe TO be constitutional and important TO
have S 'I already suggested, seems 20 draw in
question tho power Of Congress 70 proecs
from prosecution the members o. the military commits
whose action, whether warranted by law or not APP
proved by that upright and patriotic President under
whose administration the country Was rescued from
threatened destruction. We have thus far said ltto u
martial law. do propose 70 say much. VIVA We
already said sufficiently indicated an opinion that
there Is no law FOR the government FOR the
citizens, the armies, the nary Of the
United States within American jurisdiction, which IA not
con tanned In derived frum the constitution, and when
over or army navy 90 bepond territorial Limits
neither 60 beyond the authority OF the President or
the legislation Of Congress- There under the con-
sttuon three kinds Of military jurisdiction One 10 Dc
exercised both In peace and another 70 be exercised
IA Of foreign war without the boundaries OF the
United States in time Of rebellion and civil war
within states, districts upied by rebels treated a.
begerents, and . third 10 ne exercised IN TINE OF
invasion ipsuFrecton within tho Unite Of the United
states or during rebellion within the limits MAINTAINING
adhesion 10 the national government whom tho pnplc
danger requires its exercise The first Of these DO
called jurisdiction under military law and Ia found N
acts Of Congress prescribing rules and articles OF war; or
otherwise providing for the government Of the national
forces Tue second may be distinguished ~ military
government, superscding, as far may be deemed
pedent the local law, and executed BY the military
commander under the direction Of the President. with
the expressed or implied sanction Of Congress- while
the third may be deuominated marital Law proper,