Year: 1867

O., THURSDAY


less than seventeen sections embodying the various
changes and notifications which have been recited.


The question at once arises in the mind of eve
ry lawyer, what power or discretion belongs to the
court having jurisdiction of any Of these offences,
to sentence criminal to any other or different
punishment than that provided by the law which
vests him with jurisdiction. The concluding para
graph of this order, No. 10, is in these words !:
ANY law orordinance heretofore in force in North
or South Carolina, inconsistent with the provisions
Of this general order, are hereby suspended and
declared imperative" Thus announcing, not on
" power to suspend thelaws, but to declare them
generally imperative, and assuming full powers Of
legislation by the military authority.


The ground upon which these extraordinary
powers ere based is thus set forth in military order
No. l, issued in this district: 'The civil govern
ment now existing in North Carolina and South
Carolina, is provisional only, and in all respects
subject to the paramount authority Of the United
States al any time to abolish, modify, CONTROL or
supersece the same" Thus far the provisions of
the act of Congress are well recited. What follows
is in these words: Local laws and municipal regu-
lations not inconsistent with the Constitution and


laws of the United States, or the proclamations Of
the President, or with such regulations as are or
may be prescribed in the orders of the Commanding
General are hereby declared to be in force, and in
conformity Herewith, civil officers are hereby au-
thorized to continue the exercise of their proper
functions and will be respected and obeyed by the
inhabitants"


This construction of his powers under the act of
Congress places the Military Commander on the
same footing as the Congress of the United States.
1t assumes that 1.-THE paramount authority of the
United States at any time to abolish, modify, con-
troll or supersede, is vested in him as fully as it
is reserved to Congress. He deems himself rep
resentative of that paramount authority. He puts
himself upon an equality with the law-making
power Of the Union, the only 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 in
directly all the authority Of the State Legislative,
executive, and judicial, and in effect Declares II
am the State.


regret that find it necessary to speak 30 plain
" of this assumption of authority. repeat what
1 have heretofore said that 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 mischefs 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 ntoerable as the evils and mis-
chiefs which must ensue from the sort of remedy
applied. One can plainly see what will be the in
evtable confusion and disorder which such distur-
Dances of the whole civil policy of the State must
produce. If these military edicts are allowed to
remain even during the brief time in WITCH this
provisional military government may be in power,
the seeds will be sown for such future harvest of
hoe pouor hoon ipAiofod npop opu 9th
er people.


There is, in my opinion, an executive duty to be
performed here, which cannot safely be avoided or
delayed. For, notwithstanding the paramount au-
thority assumed by these commanders, they are
not even as to their proper executive duties in any
sense clothed with paramount authority. They
are, at last, subordinate executive officers. They
are responsible to the President for the proper ex
ecution Of their duties, and upon him rests the f.
nal responsibility They are his selected agents.
His duty is not all performed by selecting such a.
gents as he deems competent; but the duty re-
mains with him to see 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 the matter Of selecting and ap-
pointing these commanders, and in the matter of
their powers and duties under the law, the act
speaks in terms directly to them but this does not
relieve them from their responsibility to the Presi
dent, nor does it relieve him from the constitution
al obligation imposed upon him to see that all the
laws be faithfully executed.


1t can scarcely be necessary to cite authority for
so plain 4 proposition as this. Nevertheless as
we have recent decision completely in point, [
may as well refer to it.


Upon the motion made by the State of Mississip-
pi 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 enjon him against
executing the very acts of Congress now under con-
sideration, the opinion of the court upon dismis-
sing that motion, and it seems to have been unan-
imous, was delivered by the Chief Justice. make
the following quotation from the opinion "Very
different is the duty of the President in the exer-
else of the power to see that the laws are faithfully
executed, and among those'law the acts named in
the BILL By the first Of these acts he is required
tary Districts, and to detail sufficient military force
to enable such officers to discharge their duties un
der the law. By the Supplementary act, other
duties are imposed on the several Commanding
Generals, and their duties must necessarily be per-
formed under the supervision of the President as
Commander-in- Chief The duty thus imposed on
the President is in no just sense ministerial 1t is
purely executive and political"


Certain questions have been propounded from
one of these Military Districts touching the con-
struction of the power of the Military Commander
to constitute military tribunals for the trial of Of
tenders, which I will next consider.


Whilst the act does not in terms displace the reg
ular criminal courts of the State, it does give the
power to the Military Commander, when in his
judgment necessity arises to take the administra
ton of the criminal law into his own hands, and to
try and punish offenders by means of military COM
missions.


In giving construction to this power, we must
not forget the recent and authoritative exposition
given by the Supreme Court of the United States
as to the power of Congress to provide for tribunals
for the trial of citizens in time of peace, and to the
emphatic declaration as to which there was no dis
sent or difference of opinion among the judges,
that such power is not warranted by the consti-
tuition, A single extract from the opinion Of the
minority as delivered by the Chief Justice will suf-
fce "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 mustprevaiL What we domain
tain 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 as
iustifes the authorization of military tribunals for
the trial of crimes and offences against the dlscp-
line 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, have no hesitation in
saying that nothing short Of an absolute or con-
trolling necessity would give any color Of authority
for arraipning a citizen before military commits