Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1867-01-04

Understood and exercised from fheadeiifi-a p.
the constitution to the present Time
Nor, in our Judgment dos tEe GgN .-.
other amendment abridso that power. ~. ~.
arising IN the land and naval forces. or In M.
militia m actual service IN time Of war or pI1fIi
danger are expressly Excepted from ~ Nh
! amendment, mat no person shall be hcII d.
answer for n capital or otherwise iu famous GRIM
unless on prcsentment or Indictment of s-r41,.,
jury" and IL Il admitted that the eveanfi.,7, n
plies 20 other ameEdm enis rs well ls t0 the fHt
NON. we undnTstan1 this exception o. hq,.
Z the same import and effect as e tLc ra.s.-. rf
/ Congress IN relation % the government Jl tls
: army and navy and the militia had been rccita.i
In the amendment, and eases within those pow
ers had been expressly excepted from its Opera
ti0u. The States. most Jealous Of cucr0ac.tmel's
upon the liberties Of the citizen. when prop1sire
| additional safeguards IN the form 0t amend
| mcnts. excluded specially from their elect case.
| arising m the land end naval iorces. Thus 1las.
| sachusetts proposed that mo person shall ha
| tried for any crime BY which he would incur Hu
/ infamous punishment OF loss Of he until be nr
/ hrst Indicted BY grand iury, excerpt in such
/ eases as may arise IN the government and -cgu
/ lation of the land forces" The exception i0
| similar amendments proposed BY New York
/ Maryland, and virginia was IN thc same rr
/ equivalent terms. The amendments prOVosrj
/ by the States we're considered By tho first Con
/ grcsS, and such as were approved iu suhsi mcs
I were put in form and proposed by that baiy t1
| the States. Among those proposed AMI sGb-c-
quently ratified. was that which now stands 20.
the fifth amendment Of the constitution. We
cannot doubt that this amendment was intended
10 have the same force and eject AS the amcnl-
ment proposed BY the States. We cannot a.-rar
20 a construction which will impose on the cX-
ccption in the bith amendment n sense other
than that obviously Indicated BY action Of the
State conventions.
We think. therefore, that the power of Con
gross, in the government Of the land and naval
fsrces, and Of the militia is not az an affected bv
the fifth or any other amendment. To IS nos uc--
eSs2Ty To attempt any precise definition ot che
boundaries OF this power. But may it not be-
said that government includes protection and
defense as we'll as the regulation Of Internal adj
ministratiOn2 Aud IS Il impossible to imagine
eases in which citizens c0nspiriaN or uttemptinE
the destruction or great injury Of the national
forces may be subjected by Congress 20 military
trial and punishment in the Just exercise Of this
undOubted unconstitutional powerf Congress g.
but the agent Of the nation, and does not the Sc
curity of individuals against the abuse oi this
as Of every other power depend on the iutelb-
genCe and virtue Of the people. on their zeal for
public and private liberty, upon cli rial rcspou-
sibility secured by law. and upon the frequency
of elections. rather than upon doubtful coustrug.
lions Of legislative powers
Bat we do not put our opinion. that Congress
might authorize such a military commission S.
was held in Indiana, upon the poger % provide
for the government Of the national forces.
Congress has the power. not only % raise and
support and govern armies. but CD declare war.
Il has, therefore the power 20 provide by law
for carrying on war. Tbs power necessarily sN-
tends to all legislation essential 90 the ErOsecu-
ton of war with ygOr and success. except such
as interteres with tho command % the forces and
the conduct Of campaigns. That power and duty
belong to Che President "a COmmaude--in-C hist
Both these powers are derived from the consti-
tutou. but neither Is defined By that instrument.
Their extent must be determined by tHyig ma
ture. by the laws Of nations, aud by the priuci-
pies Cf our Institutions.
Tho power to make the neccss9ro laws IS IN
Congress; the power % execute IN the President.
Both powers imply many subordinate and aux
Hilary powers. Each includes all authorities es-
ssntal 90 its due exercise, But neither can the
President, IN war more than in peace. intrudo
upon she proper authority Of Congress. nor Com.
grezs upon the proper authority o. the presi
dent. Both are servants Of the people. whose
will is expressed in the fundamental law. Con
gress cannot direct the conduct Of campaign
nor can the President. or any commander under
him. without the sanction Of Congress. institute
tribunals for the trial AMI punishment of Of
fenses either Of soldiers OF civilians. unless iu
cases Of controlling necessity. which iustlhei
what IL compels, OF nc least ensures acts ot in
damnity from the justice OF the legislature.
We By no means assert that Congress can esta5-
Ish and apply the laws Of war where no war
has been declared or exists.
Where peace exists the laws Of peace must
prevail. What we do maintain Is. that when the
nation is involved in war. and some portions of
the country are invaded. and ali sre exposed o.
invasion, il is within the power Of Congress 90
determine in what States or districts such great
and imminent public danger exists as iuEtihes
the authorization Of military tribunals for the
trial of crimes and ofensss against the discipline
or security Of the army or against the public
In Indiana. for example. at the tiBis Of the
arrest Of Miiigan and his cOuspirat0rs, it IS es-
tablished by the papers in the record; That the
state vas military district, was the theatre OF
military operations. had been actually invaded.
and was constantly threatened with invasion
Ithppears, also, that powerful secret associl-
ton composed Of citizens and others, existed
within the State. under military organization,
conspiring against the draft, and plotting Iu5ur-
rection. the liberation Of the prisoners Of war ai
various depots. the seizure Of the state and M
tiOnal arsenals. armed corporation with the
enemy. and war against the hal'ohal govern
We cannot doubt that. IN such time Of public
danger Congress had power, under the eoustitu-
ton, to provide Tor the organization Of a mils
| tary commission and for trial By that commits
1 sioa Of persons engaged In this conspiracy. The
/ fact that the Federal courts were oPen was 70
garled by Congress as a sufficient reason for not
exercising the power; but that hct ceuld not
/ deprive Congress Of the right to exercise %.
! Those courts might be open and undisturbed lu
/ the execution Of then functions, and yet wholly
/ incompetent to avert threatened danger or OBJ
] punish. with adequate pr0mptitude and cor
| taiuty. the guilty cOnspiratOrs.
| In Indiana the Judges ard officers Of the
| courts we're loyal TO the government. But 90
| might have been otherwise. In times OF Feha
| lion aud civil war Il may 0iten happen, indeed,
| that Judges and Marshals will Be In active sym
/ pathy with the rebels, and courts their u'fi
We have con6ned ourselves 70 the question %,
| power. II was for Congress 20 determine tua
| question of eNpedteucy. And Congress did de-
termine Il. That body did not sca az g. authorize
| trials by military commission IN Indiana but by
/ the strongest implication prpalDited them. Win
that prohibition we are satisfied. and should
( have remained silent II the angWer5 % the CUES.
! tons certified had been put on that ground
| without denial Of tho existence Of power which
| we believe to be constitutional 2nd important 90
| the public safety-a denial which. as we have
already suggested. seems to draw in question The
power of Congress 70 protest rom prosecution
| the members Of military commissions who acted
IN obedience 10 their superior officers, AMI whose
action. whether warranted BY law or NOT was
| approved by that upright and patriotic President
| under whose administration the public was
| rescued from threatened destruction
| We have thus far said litile Of martial law, nor
| do we propose 10 say much. What we have
already said sufficiently indicates our opinion
that there is no law for the gDFernneni OF INC
| citsLens the armies, or the navy Of the lnited
states, within American jurisdiction, whicl is
| not contained In or derived from the cOnsttu-
| ton. And wherever our army or navy may 60,
beyond our territorial limits, neither can 90 Do.
/ yond the authority OF the fresldsnt OF me lesls-
lati0n Of Congress.
There are under the constitution three kinds
Of military Embellishments 70 DO exercised hoth
IN peace and war; another 90 DO exercised i1
time OF foreign war without the boundaries Of
the United States, or in time Of rebelhln ami
civil war within States or districts occupied ~
Rebels treated ~ belligeUents; and thiil 20 no
| exercised in time Of invasion or insurfce ton
within the limits Of the United states Or DURING
rebellion within the limits Of States mnintaiuiag
I | adhesion 10 the national government Whei, me
| pubIic danger requires his exercise lhe INST oi
these may Be called jurisdiction under hiLffAa z
law, and IL found in acu OF sCorgrefs pros,rto-
inp rules and articles Of war or otherwlse PRO
ching for the government Ct the national icicei
. | me second may DO distinguished a. NiiirAEX
2 I covpeN,pNr supervising as hr a. may bl
z deemed expedient. the local lag. and exercised
Q bv The military commander under the direclt09
$ | III the President with the express or implied
saortion of Congress- while the third may be qe
: | nonineted MARTIAL Law PROPER. ana D. ciiie
z INTO action by Congress OF Temporarily, when ~
action 81 Congress csnnOt be invited, and ~ tn.
ease az iustfyng or excusing peril, BY the 'resi
| 1ent ia times Of insurrectiOu or INVASION, o. o
Il civii or foreign war within districts or localities
where ordinary law no longer adequately secure
9 public sagety and private rights. IA
Z We think that the power Of Congress. m tucl
iimss and in such localities, 20 AUTHORIZE tfl9l
for crimes against the security and saie.y 81 tn
= / national forces. may be derived run rs s'hsi
tutional authority 10 provide Tor governing 'n
= | national forces. ..,.-.- ..,
d We have no apprehension that thf poW''i' w.
| der our American system Of goferni1 ehl,
which an official authority y derived ttoin IN
Y pe1ple and exercised under direct respoqs oilt
lathe peopIe lie more likely 20 bo.abusod tehn th
n | newer 10 regulate commerce or power 70 D1tip'
u ioonev And We are unwilling y give cur llseii
e nv silsnee 10 sx preston OF opinion Whita suaih
II ~ c,IsuIatsd though not intended, % cuppl
/ he UNCONVENTIONAL powers q tho government
e and 10 augment the public dangers ~ um'f
o. invasion and rebcihont g. -
p Mr. Justice Wayne Mr. Justice 7Hayns. ~
a Mr. Justice Miller concur with me 90 Tue.
y | views.
: YELLOW PINE FLOORING