Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1867-06-21

al orders being number ten of the series, contain
no less than seventeen sections enlbGdying the va
Irious changes and notifications which have beel
recited
| The question at once arises in the mind of eve
ry lawyer what power of discretion belongs to tn
court having jurisdiction of any of these offence
to sentence criminal to any other ditferen
punishment than that provided by the law which
vests him with jurisdiction. Tho concluding par
| agraph OF this order No. 10, is i'll these Words
Amy law or ordinance heretofore in force IL
North Carolina or South Carolina, inconsisten
with the provisions OF this general order, here
| by suspended and declared imperative" Thu!
| announcing not only power to suspend the laws
but to declare them generally imperative and as
Stunning full powers OF legislation by the milltar.
authority.
| The ground upon which these extraordinary
powers are based is thus set forth i'll Miitar,
| Order No. l. issued in this district: ''The ciyi
| government existing i'll North and South Car
Dina, is provisional only, and in all respects sub
| ject to the paramount authority of the Unltel
States st any time 10 abolish. modify, control, Oh
supersede the same Thus far the provisions O
| the act OF Congress are well reclted. what fo
| lows Is IN these words: Local laws and mum
| cpal regulations rot inconsistent with the COneti
| tuition and laws Of tho United States or the pro
| clamation OF the President, OF with such 1eguia
tlOns or MAY be prescribed III the ofuefa o.
! the commanding general are hereby declared 10
be in force and in conformity Herewith, civil Off
GERS are hereby authorized to continue the exer-
else of their proper functions, and Will be respec-
-
The construction OF his P0wcrs under the act OF
Congress places the military commander on the
same footing the Congress Of the United States
It assumes that I" the paramount authority OF the
United States at any time to abolish, modify,
CONTROL or snper6Cde," Is vested IN nm as 1uIiy
as it is reserved to Congress- He deems himself
repre- sentative of that paramount authority
He puts himself upon equality with the law
making power Of the Union, the only paramount
authority il government, SO far, at least, az
the enactment Of laws is concerned He places
hImRpif the PRESIDENT
Is simply an executive OFFICER. lie assumes, d.
rectly or indirectly, ali the authority OF the state
legislative, executive and judicial, ana IN edect
declares s. | am the State
Iregret that find it necessary to speak so
plainly OF this assumption OF authority, repeat
what have heretofore said, that L do not doubt
that all these orders have been issued under an
honest belief that they We're necessary or eXpedl-
ent, 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 50 lntoeraDe
as the evils and mischiefs which must ensue from
the sort of remedy applied, One can plainly see
what will be the inevitable confusion and disorder
which such disturbances OF the whole civil policy
of the State must produce. II these military
edlcta ar allowed to remain even during the
brief time Ill which this provisional military go
vcrnmcnt may be i'll power, the seeds will be soWn
for such future harvest obligation has never
been inflicted upon any other people.
There is, III my opinion, executive duty 10 be
here which cannot safely be avoided
or delayed for notwithstanding the paramount
authority assumed by these commanders, they
arc not, even to their proper executive duties,
III any sense clothed with paramount authority.
They are, at last subordinate executive officers.
They responsible to the PRESIDENT for the
proper execution Of their duties, and upon him
rests the final responsibility. They his Sc
lceted agents. His duty il not all performed by
selecting such agents he deems competent
but the duty remains with him to to it that
they execute their duties faithfully and according
to law.
1t is true that this act Of Congress only refers
to the President in tho matter of selecting and
appointing these commanders, and III the matter
Of their powers and dutleS under the law the act
speaks in terms directly to them; but lh:1 does
not relieve them from their responsibility 70 the
nor does it relieve him from the con-
stitutional obligation imposed upon him to see
that all the laws be faithfully executed
1t can scarcely be necessary to cite authority
for so plain proposition as this. Nevertheless,
As we have recent decision completely in point,
may well refer to it.
Upon the motion made by the State Of Missis-
,ippi before the Supreme Court of the United
states at its late term, for leave to file q bill
gaiust the President Of the United States to en-
ON him against executing the very acts of Con- |
5ress now under consideration the opinion OF the
;onrt upon Diminishing that m0tioll-and it seems |
(, have been u4animousTwas delivered by the
Chief Justice. [ make the following quotation |
rom the opinion VERY different is the duty of |
he President i'll the exercise of the power to see
hat the laws are faithfully executed, and among |
irst of theae acts he is required to assign gene |
ais to command in the several military districts
md to detail sufficient military force to enable
uch officers to discharge their duties under the
aw. By the supplementary act other duties are
imposed on the several commanding generals,
md their duties must necessarily be performed
mder the supervision Of the President as COM
nander-in-chlef. The duty thus imposed on the
President is in no just sense ministerial. It is
purely executive and POLITICAL
Certain questions have been propoundcd from
Of = IL,
truction Of the power Of the military command
+ to constitute military tribunals for the trial of
ftenders, which will next consider.
Whilst the act does not in terms displace the
egular criminal courts of the State, it does give
he power to the military commander, when in his
Judgment a necessity arises, to take the admins
ration Of the criminal law into his own hands,
nd to try and punish offenders bv means of mill
airy commissions.
In giving construction t. this power we must
OF forget the recent and authoritative exposition
iven by the Supreme Court of the United States
) to the power of Congress to provide for militia
Y tribunals for the trial Of citizens in time of
eace, and to the emphatic declaration as to
'hlch there was 10 dissent or difference OF Opin-
IN among the Judges, that such power is not
'arranted by the Constitution. A single extract
rom the opinion Of the minority delivered by
he Chief Justice will suffice. we by no means
ssert that Congress- can establish and apply the
Avs Of war where no war has been declared or
XIsts. Where peace exists the laws of peace
lust prevail. What do maintain is that when
ne natlOn Is lIlNOlV6u III war, ana some portions
f the country are invaded, and all are exposed to
lvasOn, it is within the power Of Congress to de-
ermine i'll what States or districts such great and
imminent public danger exists as justifies the au-
horlzatiOn Of military tribunals for the trial of
rimcs and offences against the discipline or seCu-
ity Of the army against the public safety.
Limiting myself here simply to the construc-
ION of this act of Congress, and to the question
D what way it should be executed have no hes
-atiOn in saying that nothing short of all abso-
lite or controlling necessity would give any color
[ authority for arraignlng citizen before mil
AIRY commission. \ person charged with crime
4 any of these military districts has rights to be
rejected, rights the most sacred and inyiolable,
nd among these the right of trial ~ jury, &C
ording to laws of the land. When citizen is ar
Aligned before military commission GRIMM
j charge, he is no longer under the protection of
aw, nor surrounded with those safeguards which
re provided in the Constitution.
This act, passed in time Of peace, when all the
ourts, State and Federal, are in the undisturbed
xercise OF their Jurisdiction, authorizes, at the
discretion OF military officer the seizure, trial,
nd condemnation of the citizen. The accused
lay be sentenced to death, and the sentence may
e executed, without an Indictment, without coun-
el, without a jury, and without judge. A sem
ance which forIeits all the property of the accused
equres no approval. If it affects the liberty of
he accused it requires the approval of the COM
handing General and if it affects his life, it re-
uires the approval of the General and of the
resident. Military and executive authority rule