The daily phoenix. [volume] (Columbia, S.C.) 1865-1878, 1867-06-19

judges, that such a power is not
warranted by the Constitution. A
single extract from the opinion of
the minority, as delivered by the
Chief Justice will suffice. eve 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
are exposed to invasion, it is within
the power of Congress to determine
in what States or districts such great
and imminent public danger exists,
rs justifies the authorization of mill
tary tribunals for the trial of crimes
and offences against the discipline
or security of the army or against
the public safety"
Limiting myself here simply to the
construction of this Act of Congress,
and to the question in what way it
should be executed, I have no hest
tation in saying that nothing short
of an absolute or controlling neces-
sity would give any color of author
ity for arraigning citizen before q
military commission a person
charged with crime in any of these
military districts has rights to be pro-
tected, rights the most sacred and in
violable, and among these the right of
trial by jury, according to the laws
of the land. When q citizen is ar
raigned before q military commission
on criminal charge he is no longer
under the protection of law, nor
surrounded with those safeguards
which are provided in the Constitu-
ton.
This Act, passed in a time of peace,
when all the courts, State and Fe-
deral, are in the undisturbed exer-
else of their jurisdiction, authorizes,
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 be executed, without indict-
ment, without counsel, without
jury and without Judge. A SEN
tence which forfeits all the property
of the accused requires no approval.
If it affects the liberty of the accused
it requires the approval of the COM
manding general; and if it affects
his life, it requires the approval of
the General and of the President.
Military and executive authority rule
throughout, i'll the trial, the sentence,
and the executions. No hdbeos corpus
from any State court can be invoked;
for this law declares that "all in
reference, under color of State au-
thOrity, with the exercise of military
authority under this Act, shall be
null and void
repeat it, that nothing short of
an absolute necessity can give any
color OF authority to military COM
mander to call into exercise such
power. 1t is Il power, the exercise
of which may involve him and every
one concerned in the gravest respon-
slbillties. The occasion for its e1-
ercise should be reported at once to
the Executive for such instructions
as may be deemed necessary and
proper.
Questions have arisen whether,
under this power, these military COM
missioners can take cogniZance of
offences committed before the pass
age of the Act, and whether they
can try and punish for acts not made
crimes or offences by Federal or
State law.
am clearly of opinion that they
have no jurisdiction as to either.
They can take cognizance of no of
fence that has not happened after
the law took effect. Inasmuch as
the tribunal to punish, and the mea-
sure or degree of punishment are
established by this Act, we must
construe it to be prospective, and
not retroactive. Otherwise it would
take the character of an &c poSte fuclo
law. Therefore, in the absence of
any language which it gives the Act
a retrospect, [ do not hesitate to say
1t cannot apply to past offences.
There is no Legislative power given
under this military bill to establish
new criminal code. The authority
given is to try and punish criminals
and offenders, and this proceeds
upon the idea that crimes and Of
fences have been committed; but
40 person can be called Il criminal
or an offender for doing an act which.
when done. was not prohibited by
law.
But, as to the measure of punish