The south-western. [volume] (Shreveport, La.) 1852-1870, 1867-07-03

modify control snpercede tie same, Tbps ~
provisions of the act of Congress we'll read VIE he
not inconsistent with the Constitution and la,
United States, or the proclamations of the the
with such regulations as or may be nrasa.
in the orders OF the commanding General arc ~ ipee
declared to be in force, and in conformity bts
civil officers are hereby authorized to continue III
else Of their proper functions and will be rasnes.E
and obeyed by the inhabitants" This fstrrn.s
his powers under the act Of Congress places ho III, q
tary commander on the footing as the Cona ,
of the United States 1t assumes that the parsa aess
authority Of the United States at any time f.
modify control or supersede, is vested in him as s
as it is reserved to Congress. He deems himsis Ivy
representative of that paramount authority a.
himself upon an equality With the law making pa pS
OF the pnion the only paramount authority in @
government, so far, OF least the enactment Of @
is concerned He places himself on higher aa aWs
than the President, who is simply executive os5a
He assumes, directly or indirectly, all the authorize
the State, Legislative, executive and judicial and
effect declares 81 the State" regret that Al
it necessary to speak plainly Of this assumption os
authority. repeat what have heretofore said H..
do not doubt that all these orders have been iss
under honest belief that they necessary a.
pedient and fully warranted by the act of Congress
There may be evils and mischief in the laws yh;or
these people have made for themselves through tbs
legislative bodies, which require change bnt NOM
of these be ntolerabe the evils and nisch;s
which must issue from the sort of remedy annlad
One can plainly see whet Will be the inevitable rons
sion and disorder which such disturbances Of H.
whole civil policy Of the State must produce if b
military edicts are allowed to remain even during the
brief time in which this Provisional Military GnSar
ment may be in power. The seeds will be sowu f.
such future harvest of litigation hasneyer been x
hicted upon any other people There is, in my opinion
executive duty tie be performed here which cannn
safely be avoided or delayed for notwithstanding INV
paramount authority assumed by these Commando
they are not as to their proper executive duties
i clothed with paramount authority. The9 srn ~
best, subordinate executive officers They are resno
sbe to the President for the proper execution of fb
duties, and upon him rests the final responsibilv
They his selected agents. His duty is not ali ns
formed by selecting such agents as he deems conne
tent, but the duty remains with him to see to il tP
they execute their duties faithfully and ACCORDING a.
/ law.
OBLIGATIONS AND RESPONSIBILITIES.
It is true that this act of Congress only refer "a Ia
President in the matter of selecting and appeatia1
these commanders, and in thOmatter of thel p0seTs
and duties under the law the act speaks in iefras
rectly to thems but this does not relieve them fF
their responsibility to the President nor does raf
him from the constitutional obligation imposef Bn4r
him to see that the laws be faithfully executed Hsh
scarceysbe necessary to cite authority for s. Vim
proposition this, nevertheless az we have rassf
decision completely in point, may as well refer A NE
/ Upon the motion made by the State of MississaBils
fore the Supreme Court of the United States ID lila tFs
term, for leave to file bill against the PRESIDE At &
United States to enjoin him against executing 6
acts OF Congress now under consideration, Ill 5spi
OF the court upon dlsmissing that motto sad Il
seems to have been unanimous, was deliver a, M
/ Chief Justice. made the following quotation EitS
the opinion ''Very difficult is the duty of sls PfgS
dent in the exercise Of the power to tina te ls
are faithfully executed and among those Law tba aa
named in the bill By the first Of these aets AZ IL ~
quested to assign Generals to command in the seye
military districts and to detail sufficient military force
to enable such officers to discharge their duties under
the law. By the supplementary act other duties are
imposed on the several commanding Generals and
their duties must necessarily be performed under tile
supervision of the President as Commander Chief
The duty thus imposed on the President is in no lust
sense ministerial It is purely executive and POLITICAL
certain questions have been propounded from If
these military districts touching the construction Of
the power of the military commander to constitute mill
tary tribunals for the trial of offenders which will
next consider. Whilst the act does not in terms dis
place the regular criminal courts of the States it does
give the power to the military commander when in hs
judgment necessity arises to take the administration
OF the criminal law into his hands, and to try and
punish offenders by means of military commissions
In giving construction to this power must not for.
get the recent and authoritative exposition given III
the United States as to the power of Congress to pro-
vide for military tribunals for the trial of citizens in he
time OF peace and to the emphatic declaration, as to
which there was no dissent difference of opinion
among the Judges that such power is not warranted
by the Constitution single extract from the opinion
of the minority delivered by the Chief Justice will
suiRcei 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 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 all exposed to
vasion it IS within the power of Congress to determine
in what States districts such great and imminent
public danger exists ustfes the authorization Of
military tribunals for the trials of crimes and offences
against the discipline security Of the army or against
| the public safety.
NO COLOR OF AUTHORITY.
! Limiting myself here simply to the construction Of
this act of Congress, and to the question in what way
it should be executed have no hesitation in saying
that nothing short of absolute controlling
sty would give any color of authority for arraignine
a citizen before military commission person
charged with crime IN any Of these military usfcs
has rights to be proteeted rights the moss sacred and
lnvlodnle ana among s ths right Of fa . y Jury
arraigned before military commission on criminal
charge, he is longer under the protection Of laws
surrounded with those safeguards which are pro-
vided in the constitution. This act, passed in time
of peace when all the courts, State and Federal arem
the undsturbed exercise of their jurisdiction, author
ises at the discretion of military officer the seizure
trial and condemnation OF the citizen. The accused
may be sentenced to DEATH and the sentence may DC
executed, without any indictment, without counsel,
without jury and without judge sentence which
fortets all the property of the accused requires nDdp
prevail IF it affects the liberty of the accused, it re-
qures the approval of the commanding general, aud,
if affects his fe it requires the approval OF the com,
handing general and of the President. Military and
executive authority rule throughout in the trial. the
sentence and the execution. No habeas corpus from
any State court can be revoked for this law declares
that all interference under color Of State authority ua
der this act, shall be null and void.
repeat it, that nothing short of an absolute neces,
sity can give any color Of authority to military o
commander to call into exercise such power II sa
po"ei tLe eAeIeise Vi Which may iu'ohNe
every concerned, in the gravest responsibility
The occasion fer its exercise should be reported
once to the Executive for such instructions as may
deemed necessary and proper.
ACT NOT POST FACTo.
Questions have arisen whether under this power
these nj tarI commissioners take cognsanee o.
offences Committed before the passage of the act ana
whether they can try and punish for acts not maze
crimes offences by Federal State law am clear
I y of opinion that they have no jurisdiction Us %
either. They can take cognisances of no offence ha
has not happened after the law took effect.
1nasmuch as the tribunal to punish, and the measure
degree of punishment, established BY ms ac
we must consrue it to be prospective and not relfoa
tive. Otherwise it would take the characterot ~ u
post facto law. Therefore, in the absence OF any M
guage which gives the act "a retrospect, do MOI h
tate to say, it cannot apply to past offences Ihee
Legislative power given under this military bill 70 "a
tablish criminal CODE The authority given slo
try and punish criminals and Offenders, and this pu
ceeds upon the idea that crimes and offences have Gte
committed; but no person can be called criminal o.
an offender, for doing act which, when done, was
not prohibited by law.
But as to the measure of punishment regret 10 u
obliged to say that it is left altogether to the mlt
authorities, with only this mitation-hat the phhsa
ment which is to be inflicted shall not be of crae
unusual character The military commission may ~
the accused fix the measure of punishment even M
the penalty of death and direct the execution Of
sentence. 1t is only when the sentence affects the i
or liberty of the person that it need be appr0seu3
the commanding general, and only in cases Wneie
affects the life of the accused that it needs also e
provai of the President. As to crimes or onensu
against the laws of the United States the military v
thory take eognisance of them nor IN any NV