Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1867-06-23

modify, control or superSede," Is vested
ia him as fully as it is reserve d in con-
gress. He deems himself a representa-
tive Of that paramount authority in our
government, so far, at least. as the enact
ment of laws Is concerned. He places
himself on higher ground than the
president, who is simply an executive
officer. He assumes, directly or indi-
reetly, all the authority Of the state,
| legislative, executive, aud judicial, and
| in effect declares " am the state.p
THE CRAVE Evils THAT WILL RESULT FROM
THEIR UsURPATIONs.
/ i regret that | find it necessary to
speak so plainly of this assumption of
authority. / repeat THAT I have here
| tofOre said, that i do not doubt that all
these orders have been issued under an
honest belief that they were necessary
or expedient and fully warranted by the
act Of congress. There may be evils and
mischiefs IN the laws which these people
| have made for themselves through their
own legislative bodies, which require
change, but none Of these can be so in
toIerable as the evils and misehiefs
which must ensue from the sort Of rem
edy applied. One can plainly see what
will be the Inevitable confusion and dis
order which such disturbances of the
/
duee. If these military edicts are
| allowed to remain even during the brief
| time in which this provisional military
government may be in power, the seeds
will be sown for such future harvest Of
litigation as has never been inflicted
upon. any other people.
THE PRESIDENT has A DUTY TO PERFoRM N
| THE PREaIsEs.
There is, in nay opinion, an executive
duty to be performed here, which can
! BOT safely be avoided or delayed. For
Notwithstanding the paramount author
| ity assumed by these commanders, they
are not, even as to their proper execu-
/ tive duties, in any sense, clothed wikfR
paramount authority. They are, at last,
I subordinate executive officers. They are
responsible to the president for the
proper execution Of their duties, and
upon him rests the final responsibility.
| They are his selected agents. His duty
is not all performed by selecting such.
| agents as he deems competent; but the
duty remains with him to see TO it that
they execute their duties faithfully and
fRccOrding to law.
/ 1t is true that this act Of congress only
refers to the president in the matter Of
| selecting and appointing these COM
mandeTs, and in the matter Of their
| powers and duties under the law, the act
! speaks in terms directly to them; bat
! this does net relieve them from their re-
| sponsibility to the president, nor does it
/ relieve him from the constitutional obli-
| CATION imposed upon him to see that all
q the laws be faithfully executed"
| It can scarcely be necessary to cite au-
| thOrity for so plain proposition as this.
| NeYertheless, as we have a recent decis-
ion completely in point, l may as well
refer to 1t
| CHIEF JUsTICE CHAsEs OPINION ABOUT IT.
Upon the motion made by the state Of
| Mississippi Before the supreme court Of
| the United States at its late term, for
/ leave to file bill against the president
/ of the United States, to eHjOin him
against executing the very acts of con-
gress now under consideration, the Opin-
| ion Of the court upon dismissiug that
| motion, and it seems to have been uuan-
| imous, Wasdelivered by the chief justice.
/ l make the following quotation from the
| opinion. - Very different is the duty OF
! the president in the exercise of the power
/ to see that the laws are faithfully execu-
| ted, and among those laws the acts
/ named in the bill By the first of these
I acts ne is required to assign generals 10
]
/ tricts, and to detail sufficient military
4 force to enable such officers to discharge
| their duties under the law. BY the sup
| Elementary act, other duties are i'm
/ posed on the several commanding gen
! erals, and their duties must necessarily
/ be performed under the president as the
| eOmmander-iu-chief, The duty thps i'm
| posed on the president is in no just sense
| ministerial. It is purely executive and
\ political.n
! Certain questions have been pro-
/ pounded from one Of these military dis
| sricts touching the construction Of the
power OF tine military commander to
/ constitute military tribunals for the trial
/ Of offenders which I viii next consider.
| Whilst the ctdOes not in teIms dis
/ place the regular criminal counts Of the
| State, it does give the power TO the Mill
| taFy com mspdeF, When..in his Judgment
/ q necessity arises, to take the admins
| trstion of the criminal law into his own
/ hands and to try and punish offenders
by means of military commissions.
MILITARY TRIALS N TINE OF PEACE UNcoSsrI-
/ TUTIONAL-CHfEF JUSTICE CHASE SAYS THAT.
| In giving construction to this power,
we must not forget the recent and sC-
| thoritstige exposition Sixep ~ the su-
| preme court OF the United States IS TO
! the power Of congress TO provide for mill
| itary tribunals foF the trial of citizens in
! time Of peace, and to the emphatic de-
| claratlou as to which there was no dis
! sent or difference of opinion among the
| judges, that such q power is not wsr-
ranted by the constitution. a single
extract from the opinion Of the minority
as divided by the chief justice, will suf-
! fee We ~ no Mesus assert that con-
| gress can establish and apply the laws OF
I war where no war has been declared or
| exists. Where peace exists the laws Of
! peace must prevail. What We do main
| tain il, that when the nation is involved
/ in war, and some portions Of the country
are invaded, aud all are exposed to inva-
sion, it is within the power Of congress
! -, SSsermine in what states or districts
,iasS,,-. b>-Snd imminent public danger
TI''-1s as JusGfies the authorization Of
Fcfh1itary tribunals1Or the trial OF crimes
and Offepses against the discipline OF
/ security OF the army oragainst the public
safety,p
! Limited myself here simply 10 the con-
| structiOn Of this act Of congress and to
| the question in what way it should be
| executed, l have no hesitation in saying
| that nothing short of an absolute or con-
! trolling necessity would give any color
/ Of authority for arraigning citizen be-
I fOee q military commission. a person
! charged with crime in any Of these mill
| tary districts has rights 10 be protected,
| rights the most sacred and inviolable,
/ and among these the right of trial by
! jury according to laws of the land.
/ When a citizen is arraigned before
military commission on q criminal
charge he Is no longer under the protec-
/ ton af law, HOt surrounded With those
safeguards which are provided in the
| constitution,
This act, passed in q time of peace,
/ when all the courts, state and federal, are
| in the undisturbed exercise of their ju-
risdiction, authorizes, at the discretion Of
/ a military officer, the seizure, trial and
condemnation of the citizen. The ae-
cused may be sentenced TO death, and
| the sentence may be executed, without
/ an indictment, without counsel, without
a jury and without judge. A A'sentence
/ which forfeits all the property Of the
accused, requires no approval. If it
affects the liberty of the accused, it re-
/ quires the approval of the commanding
! general; and if it affects his life, it re-
| quires the approval of the general and of
! the president. Military and executive
authority rule throughout, in the trial,
| the sentence and the execution. No
hG5eas corpus from any state court can
be invoked for this law declares that
" all interference, under the color of
state authority, with the exercise Of mil
itary authority under this act, shall be
null and void"
| repeat it, that nothing short of an
absolute necessity c9n give any color of
/ authority to a military commander to
| cali into exercise such a power. 1t is
power the exercise of which may involve
/ him, and every one concerned, in the
gravest responsibilities. The occasion
| for its exercise should. be reported at
once to the executive for such instruc-
tions as may be deemed necessary and
| proper.
| OTHER QUESTION: CONSIDERED.
Questions have arisen SitSSss her. under
| this power, these military -slssiOn-
ers can take cognizance Of Offenses COM
mitted before the passage of the act, and
| whether they can try and punish for
acts not made crimes or offenses by fed
eFal on state law.
1 am clearly Of opinion that they have
| no Jurisdiction as TO either. They can
| take cognizance of no offense that has
| off tho Iau tOolr affact