The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1869-06-24


Constitution? This strange condition Of
things, it is claimed, has been wrought
by an act Of Congress. If the condition
of things which we now see, the trial of
citizens by military law and military
courts, results from the rightful exercise
of power, it ought to be made very intel
Hgible to us-because the right denied
Is inestimable if our history teaches any
thpg, and the power which takes it away
ought to rest on grounds not only solid,
but plainly marked out The act Of Con-
gress does not recognize a condition of
war as existing at It's date. War had ex-
listed beyond doubt, but it had ceased
by the complete overthrow of the. rebel
lion, and the act in describing the States
to which it applied, speaks Of them as
States lately in rebellion As matter Of
fact we know that after the war, govern
ments had been formed in the designated
States under the authority of the Presi-
dent, but without the agency of Congress.
These governments were not hostile gov
ernments, but governments which ac-
knowledged the paramount authority of
the United States. Congress denying
the authority of the President TO institute
these governments, and addressing itself
to this state of things, declared that no
legal State governments existed in these
States, nor adequate protection Of per-
sons and prOperty-and this is the only
condition which Is recognized or declared
to erit as the foundation Of tie measure then
proposed. The measure, the Reconstruc-
ton Act, had two objects, and with ref
erence to these objects divides itself into
two parts which have no necessary de-
.pendence the one upon the other. Con-
gress having exercised the right to deter
mine what is the established government
Of a State, and having decided that such
government did not exist, judged also that
the contingency had arisen which required
that body to fulfill the obligation imposed
by that provision of the Constitution which
declares that the Omitted States shall
guarantee to each State arepublican form
of government" The act accordingly
authorizes and directs the steps necessary
to the institution Of permanent govern
ments, employing the usual instrument
ality of Convention Of Delegates elect
ed by the people. This was one object.
The people being without legal or
legitimate government, in the opinion
of Congress, it was felt to be duty to
provide government for them in the in
terval, and while the measures for the
establishment of legitimate government
were being carried out. This was the
other object.
1t may be conceded that Congress had
the right to judge, conclusively, and to
act as respects the character of the exist
ing governments, and as to the steps re-
quisite to form new governments. The
part of the act which relates to the re-
construction of the governments, relates
to the States as political communities,
and to the political institutions of the
States; that which provides Il government
for the people in the interim, and the pow
ers conferred ON the Commander Of the
District, affect the individuals of the
State, touching their personal rights under
the Constitution and laws, in respect to
which Congress cannot decide nor act
coaclusirely While, therefore, as to the
first object, and the necessary steps to carry
it out, Congress may be the exclusive
judge, yet in the matter Of governing the
people, and in dealing with their persons
and property, the act of Congress is ex-
aminable by the Courts, which in the
last resort determine whether Congress
has violated the Constitution. The.
Courts may decide, therefore, that in sub
iecting offenders to military trial, Con-
gress violated the Constitution, although
every other part of the reconstruction act
may be valid: The idea seems to prevail
that the whole reconstruction act will fall
to the ground if you admit the claim Of a
citizen of the United States to be tried as
the Constitution provides. On the con-
trary we assert that such decision would
have no effect upon the plan OF recon-
struction, and the political part of the
measure would nevertheless stand.
We may proceed, therefore, without
apprehension of consequences, to consider
and to decide whether Congress has the
right to subject a citizen of the United
States to trial by a Military Court.
Waving the question as to the right of
Congress to frame a government for the
people of a State, it can only legislate
with respect to citizens of the United
States, subject to the limitations and re
strictiOns of the Constitution, and can
found no right to erect military govern
ment over the people Of the United States
in State or Territory on the fact that no
Ieqal governments for the time being exist
there. If Congress assumes to provide
tribunals of justice, they must be such as
the Constitution prescribes, or does not
prohibit.
The provision of the act authorizing
this Commission to try offenders, bears
directly upon the personal right of a citi-
zen of the United States. He is not con-
nected with the Army or Navy, nor is he
in the militia called into service, and
claims the protection of the Constitution,
which secures to him the trial by jury,
and you must concede it to him unless a
state of war exists.
Without adverting to the arguments and
decisions on this question, it may be sta
ted, that so far as deliberate and author
itative expression of opinion goes, it is a
settled point that the right claimed by the
accused can be denied only g in time OF
war;" The military Commission per
tains to a state~of war only. 1t grows out
of the exigencies of actual war, and can
have no legal authority over the citizen in
''time of peace. The Attorney General
of the United States comedies this broadly
in the opinion which has been read to you
by the Judge Advocate for your guidance,
and he recognizes it as the established doc
trine of the Judicial Department of the
Government.
He says:
"It is obvious in the first place, that
under the Constitution of the United
States Congress has no right to subject
any citizen to trial and punishment by
military power in time Of peace.
In the case of Millegen, the majority of
the Judges of the Supreme Court say,
that the Military commission can only act
ION the theatre of actual military opera
tons where war really prevails" and the