Year: 1867

or property and he may protect them in such
way as in his discretion may seem proper II
places at his free disposal all the lands and
goods in his district, and he may distribute them
without let or hindrance to whom he pleases. =
Being bound by no State law, and there being
no other law to regulate the subject, he may
make a criminal code Of his own; and he can
make it as bloody as any recorded in history, OF
4 he can reserve the privilege of acting upon the
impulse of his private passions in each case that
arises He is bound by no rules Of evidence
there is, needed, no provision by which he is
authorized or required to take any evidence at
all Everything is a crime which he chooses
| to call SO, and all persons are condemned whom
he pronounces to be guilty. He is not bound
to keep any record, or make any report OF his
proceedings He may arrest his victims where
ever he finds them without warrant, accusation
or proof of probable cause If he. gives them
a trial before he inficts the punishment he gives
it of his grace and mercy, not because he is
commanded so to do.


| To casual reader of the bill it might seem
that some kind Of trial was secured by it to per-
sons accused of crime; but such is not the case.
| The officer may allow local civil tribunals to
| try offenders, but of course this does not re-
quire that he shall do SO. If any State or Fed
eral court presumes to exercise Its legal Jurls-
diction by the trial of q malefactor without his
special permission, he can break it up and pun
ish the judges and jurors as being themselves
malefactors. lie can save his friends from JUS
tice and despoil his enemies contrary to justice
| 1t is also provided that 'he shall have power
to organize military commissions or tribunals; -
but this power he is not commanded to exer-
else. 1t is merely permissive and is to be used
only when In his judgment, it may be neces-
sary for the trial Of offenders" Even if the
sentence Of commission were made a pre-re-
quisite to the punishment OF party, it would
be scarcely the slightest check upon the officer,
who has authority to organize it as he pleases,
prescribe its mode of proceeding, appoint its
members from among his own subordinates, and
revise all its decisions. Instead of mitigating
the harshness OF his single rule, such tribunal
would be used much more probably to divide
the responsibility of making it more cruel and
unjust.


Several provisions, dictated by the humanity
OF Congress, have been inserted in the bill, ap-
parently to restrain the power Of the command
ing officer; but it seems to me that they are OF
no avail for that purpose The fourth section
proyides-FUst. That trials shall not be un-
necessarily delayed; but | think have shown
that the power is given to punish without trial.,
and if so, this provision is practically impcra-
tive. Second Cruel or unusual punishment
is not to be inflicted; but who is to decide what
is cruel and what is unusual? The words have
acquired legal meaning by long use in the
courts. Can ii be expected that military off
GERS will understand OF follow q rule expressed
in language so purely technical, and not per-
tanning In the least degree to their profession
If not then each officer may define cruelty ac-
cording to his own temper, and if it is not usu
al, he viii make it usual. Corporeal punish
ment, imprisonment, the gag, the ball and
chain, and the almost lnsupportable forms
Of torture invented for military punishment.
lie within the range Of choice. Third. The
sentence OF commission is not to be exc
cuted without being approved by the comman-
der, if it affects life or liberty; and a
sentence of death must be approved by the
President This applies to cases in which there
has been trial and sentence. | take it to be
clear, under this bill, that the military com
mander may condemn to death without even
the form OF a trial by a military commission, so
that the lite OF the condemned may depend up
on the will OF two men, instead of one.


1t is plain that the authority here given to
the military. officer amounts to absolute despot-
ISM. But, to make it still more uncomfortable,
the bill provides that it may be delegated to as
many subordlnates as he chooses to appoint ;
for 1t declares that he shall punish or cause to
be punished. Such power has not been
welded by any monarch in England for more
than five hundred years. In all that time no
people ho speak the English language have
borne such servltude. It reduces the whole
population OF the ten States-all persons, of
| every color, sex and condition, and every stran-
ger within their hmits-to the most abject and
degrading slavery. No master ever had a con-
troi SO absolute over his slaves as this bill gives
to the military officers over both white and col
ored persons.


| 1t may be answered to this that the officers of
the army are too magnanimous, just and humane
to oppress and trample upon a suhjugated peo-
| pie. | do not doubt that army officers are as
well entitled to this kind of confidence as any
other class Of men. But the history Of the
world has been written in vain, If it does not
teach us that unrestrained authority can never
be safely trusted in human hands. 1t is almost
sure to be more Or less abused under any Cir
cumstances, and it has always resulted in gross
tyranny where the rulers who exercise it are
strangers to their subjects, and come among
them as the representatives of distant power,
and more especially when the power that sends
them is unfriendly. Governments closely re-
sembling that here proposed have been fairly
tried IN Hungary and Poland, and the suffering
endured by those people reused the sympathies
OF the entire world. 1t was tried In Ireland,
and, though tempered at first by principles OF
English law, it gave birth to crueties so afro
clous that they are never recounted without just
Indignation. The French Convention armed
It's deputies with this power, and sent them to
the Southern departments OF the Republic. =
! The maSsacres, murders, and other atrocities
which they comm tied show WHAT the pas
| sions of the abest men In the most civilized so
ciety will tempt them to do when wholly unre-
strained by law


/ The men Of our race In every age have strug
| gled to tie up the hands of their Governments
and keep them within the law; because then
own experience Of all mankind taught them that
rulers could not be relied on to concede those
rights which they were not legally bound to res
pect The head Of great empire has some
times governed it with mild and pateYna
sway; but the kindness Of an irresponsible dep
uty never yields what the law does not extort
from him. Between such master and the
people subjected to his domination there can
be nothing but enmity: he Furnishes them il
they resist his authority, and, if they submit tc
it, he hates them for their servility.


l come now to a question which is, If posi-
bic, still more important. Have we the power
to establish and carry into execution measure
our authority from the Constitution, and if we
are bound by the limitations which 1t imposes.


This proposition is perfectly ciear-that ne
branch of the Federal Government, executive
legislative or iudicial can have any Just powers,
| exce,,t those which i derives through, ana eX-
erc;ses under. the organic law Of the Imon =
| Outside of the Constitution we have no iega
AMI horitv more than prlyateicuzens, and VITA
! in il we have only so much as that instrument
gives us. This broad principle limits al our