Year: 1867

civil tribunals TO try offenders but of cours,
this does not require that be shall do so.-
fRy State or Federal court presumes to
exercise its legal jurisdiction by the trial Of
a malefsctor, without his special permission
he can break It up and punish the Judge and
jurors as being themselves malefactors. He
can save his friends from justice and despoil
his enemies contrary - justice. II Is also
provided that he shall have power to organi-
lze military commissions, or tribunals, but
by his power he is not commanded to do it
u is merely permissive and is to be used on
ly where in his judgment, It may Le neces-
sary for the trial Of offenders. Even if the
sentence Of commission were made pre-
requisite to the punishment of apathy, there
would be scarcely the slightest responsibility
upon the officer who has authority to organ
ize 40 he pleases, TO prescribe its mode of
proceedings appoint its members from his
own subordinates, and revise oil its decisions.
Instead of mitigating the harshness of his
single rule, such tribunal would be used
much more probably to divide the RESPONSE
bility IL making 1t more cruel or unjust.


Several provisions, dictated by the human
ity OF Congress, have been inserted in the
bill apparently TO restrain the power Of the
commanding officer, but 1t seems to me that
they are of no avail for that purpose. The
fourth section provides, first, that trial shall not
be unnecessarily delayed, but I think have
shown that the power Is given to punish
without trial, and it so, this provision is
practically imperative Cruel or unusual
pnnishments are not TO be inflicted, but who
is to decide what is cruel and unusual. The
words have acquired legal meaning by
long use In the courts. Can it be expect.
ed that military officers will understand it
and follow rule in language so purely tech
nical, and not pertaining in the least degree
to their profession If not, then such off,
Ger may define cruelty according 10 his own
temper, and if not usual, be will make il us.
ual. Corporal punishment the gag and the
ball and chain, and other almost insupport-
able forms Of torture invented for military
punishment, will be within the range of
choice.


Third, the sentence of a commission is
not to be executed without approval by the
commander, if it effects life or liberty, and a
senteuce Of death must be approved BY the
President. This applies to cases in which
there has been a trial and a sentence
] take it to be clear under the bill that the
military commander may condemn to death
without even the form Of a trial by militia
ry commission, so that the life OF the con-
demped may depend on the will Of two men
instead Of one. 1t is plain that the author-
ty here given to the military officer amounts
to absolute despotism. But to make it still
more unendurable, the bill provides that II
may be delegated to as many subordinates as
he chooses TO appoint for it declares he shall
punish or cause to be punished. Such a
power has not been welded by the monarch
in England for more than FIVE hundred years.
In all that time no people who spoke the
English tongue have borne such servitu de.
II reduces the whole population of the ten
States-all persons of every color, sex and
condition, and every stranger within their
limits, to the most abject and degrading slav-
cry. No master ever had control 50 abso-
lutte over his slaves as the bill gives to mil.
itary officers over both white and colored per-
sons. 1t may be answered to this that of.
heers Of he army are too magnanimous, Just
and humane to oppress and trample upon a
subjugnted people. do not doubt that ar.
my officers are Ms well entitled to this conf
dence as any other class of men, but the his.





ii 1t docs not teach us that unrestrained au-
thority can never be safely trusted in human
hands. 1t is almost sure to be more or less
abused under any circumstances; and 1t has
always resulted in gross tyrany where rulers
who are strangers to their subjects and come
among them as the representatives of q dis
tant power, and more especially when the
power that sends them is unfriend,y. Coz
ernments closely resembling that here pro-
posed have been fully tried in Hungary and
Poland and the suffering endured by those
people reused the sympathies of the entire
world. 1t wastried in Ireland, and although
at FIRST tempered by principles of English
law, 1t gave birth to cruelties so attrocious
shat they are never contemplated without
just indignation. The French constitution
armed its deputies with this power, and Sc mt
them to the southern departments of the Re-
public. The massacres,: murders, and other
atrocities which they committed, show what
the passions of the ablest men in the most
civilized society will attempt to do, when
wholly unrestrained by law. The men Of
our race, in every age have struggled to tie
up the hands OF their governments, and keep
them within the law because of their own
experience and Of mankind taught them that
rulers could not be relied on to conceed those
rights which they were not legally bound to
respect.


The head of great'empire has sometimes
governed with mild and paternal sway
but kindness.of an irresponsible power never
yields what law does not extort. Between
such master and people subjugated to his
domination there can be nothing but enmity.
he Furnishes them If they resist his authori-
ty and if they submit to it he hates them for
their servility. $50 b. TO-.


now come to question, Il possible,
still more important. Have we the power
to establish and carry into execution a meas
ure like this ! answer, certainly not, If
we derive our authority from the Oonsttu-
zion, and il we are bound by the limitations
which II imposes. This proposition, is per.
feclly clear, that no branch of the Federal
government, Executive, legislativeor judicial,
can have just powers except those which il
derives through aud exercises under the or
ganic law of the Union. Outside the Con-
stitution we have no legal authority more
than private citizens, and within il we have
only SO much as that instrument gives u.s.
This broad principle limits all our functions
and applies to all subjects. 1t protects not
only the citizens of the United States which
are within the Union, but shields every hu.
man being who comes or is brought under
our jurisdiction. We have no right to do
what the Constitution says We shall not do
IT. therefore, the Southern States were in
truth out Of the union, we COULD not treat
their people as the fundamental law forbids.
Some people assume thai the snccess of our
arms in crushing the opposition which was
made IN some States to the execution OF
Federal laws, reduced those States aud all
their people, the innocent as well as the gull
~, TO condition Of vassaisge, and gave US
power over them which the Constitution