Historical Newspapers of South Carolina

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BY ?TO THINE OWN SELF BK TUUE, AND IT MUST FOLLOW, AS THE IIOB'T. A. THOMPSON & CO. iummMmnmt?i?fm*?m)?mm i m j '-_ ^ M I I - - rn Milli II I I I I i i n II irn?ri?. m.mi mniii PICKENS COURT HOUSE, S. C. SATURDAY, JULY 27, 1801. NIGHT THE DAY, THOU NO. 5& jr-y^f jtu JL' JrG X . Opinion of the Attorney-General as to the Powers of the Military Commanders ATTOUNKY-G KN KU A K'S Omer., June 12, 18G7. The President. Hm : On the. 24th ultimo, t had tho hon or to transmit for your consideration my opin ion upon sonic of thc questions arising under the reconstruction Acts therein referred to. I now proceed to give my opinion on the remain ing questions, upon which thc military com manders require instructions. First,-as to thc powers and duties of these commanders. The original Act recites, in its preamble, that " no legal State Governments or adequate protection for life or property exist" in those ten States, and that " it is necessary that, peace and good order should bc enforced" in. those States " until loyal and republican State Governments can bc legally established." Thc first and second sections divide these Ht at en into live military districts, subject to thc military authority of thc United States as thereinafter prescribed, and make it the duty of thc President to assign, from tho officers of the Anny, a general officer to the command of each district, and to furnish bim with a force to perform his duties sud enforce his nuthorithy within his district. The third section declares, "That it shall he thc duty of each officer assigned as afore . paid to protect all persons and property, to sup press insurrection, disorder and Violence, and to punish, or cause to be punished, all distur bers of the public peace and criminals'; and, to this ?lid, lie may allow local civil tribunals to take jurisdiction of and try offenders, or, when in his judgment, it may be necessary for the trial of offender's, he shall have power to organize military commissions or tribunals for that purpose ; ami all interference under e?d . or"of State authority with the exercise of mil itary authority under this Act shall bc null and void." Thc fourth section provides " that all per sons put under military arrest by virtue ot this Act shall be tried without unnecessary .delay, and no cruel or uuu-?inl punishment shall bc inflicted ; and no sentence of any -, military commission or tribunal hereby au ?IM,M/.UU. ftttpctifig the lite or liberty ot an\ {icrsoii, .>l>.,ll l>o i?rerUted nii/U .? ?ppiuvcu ?y. thc officer in command of t he district, and . thc laws and regulations for thc government of thc army shall not be affected hy this Act except in so far as they conflict with its pro visions: Provided\ That no soil tonco ol death under the provisions of this Act shill lie cirricd into effect without thc approval o tho President.'' The fifth sootion declares the qtialificntini of voters in all elections, as wcli to frame tin new constitution for euell State as in thc cleo thins, tobe held under thc; provisional Gov ernmont until the new Stale constitution i ratified hy Congress, and also lixes thc quali fioations of tho delegates to frame thc nev constitution. . Thc sixth section provides '. That until th people of tho said rebel St atoa shall ho by Int admitted to representation in the Congress o thc United Stiles, any civil government which may exists therein shall be deeme provisional only, and in all respects subject I the paramount authority of the United State; at any time, to abolish, modify, control or si pcrcedc thc same ; ami in all elections to an office under such provisional governments, ? persona ?hall be entitled to vote, mid norieotl ors, who are entitled to vote under provisioi of thc fifth section of this Act ; and no pe sons shall bc eligible to any o Iii ce under an /mell provisional governments who would I disqualified from holding office under the pr Y visions of thc third article of said constitl ^ tlonal s mend mont." ^ The duties devolved upon the rommandii general by tho supplementary Act relate, alt . gcthcr to thc registration of voters and tl elections to bc held under the provisions that Act. And ns to these duties, they a plainly enough expressed in the Act ; and is not understood that any question not her ' tofore considered in thc opinion referred has arisen or is likely to arise in respect them. My attention, therefore, is directed tho powers and duties bf tho military coi inandcrs under thc original Act. Wo see clearly enough that this Act co templates two distinct governments ii. each these ten States-thc one military, in the otb civil government ls recognized ns existing tho dale ef tho Aot. Thc military go'vor ment is created by the Act. Hot h are pi . visional, and both are to continue until t nevf State constitution is framed and tho Stt is-admitted to representation in Congress Whon that event takes place, both these p visional governments are-tn cease. In ci temptation of this-Act, this military and tl civil authority aro to bc carried on toge th Tho pcoplo in theso. States arc made subji to both, and must obey both, in their resp tivp Jurisdictions. T?icrc is, then, an imperative necessity defino ns clearly as possible thc line whi separates the two jurisdictions, and thc ex scope of tho nnthority of each. Now as to thc civil nnthority, roeotriii; by tho Abt as thc provisional civil gove .mont-, it. covered ovcry department of ci jurisdiction in each of theso States. It 1 all tho characteristics and powors of a ijl government-legislativo, judicial and oxc tire-and was in tho full and lawful oxer? of - all theso power?, except only that it1 not?ontiMod to representation ns a State of tlnloji, Thia oxisting government ls not aside; lt ls recognized more than oftooby Act. It ia not in any ono of its dopartino or, as to any one of its functions, repoalo< modified by this Act, aavc only ?ti thc quti * i ? (Munns o? voters, thc qualifications of poisons eligible lo ollicc, tlic inntiuer ol' holding elec tions, nm! liie mode of framing the constitu tion of the State. Tho Act does not in any other respect change thc provisional govern ment, nor docs the Act authorize thc military authority te ohange it. Tho power of further changing it is reserved, not granted, and it is reserved to Congress, not delegated to thia militar)' commander. Congress was not satisfied with the organic law or constitution under which this civil gov 0 rh inet) t was established. That constitution was to bc changed in only One particular to make it acceptable to Congress, ami that was in the matter of the elective franchise. Thc purpose, the sole object, of this Act is to effect that change, and to effect it by the agency of thc people of thc State, or such of thom asare made voters, by means of elections provided for in the Act, and in thc meantime lo pre serve order and to punish offenders, if found necessary, by military commissions. Weare, therefore, not al a loss to know what powers arc possessed by thc existing civil authority. Tho only question is upon the powers conferred on the military authori ty. Whatever power is not given to the mil itary remains with the civil government. Wo see, first of all, that each of these States is " made subject to the military authority ol' thc United States"-not to thc military au thority altogether, but with this express lim itation, ''is hereinafter prescribed." This, then, is what is granted to the mili tary commander : Thc power or duty "to protect all persons in their rights of person and property, to suppress insurrection, disor der and violence, and to punish, or cause to be punished, all disturbers of the. public pearn; and criminals," ami be may do this by the agency of the criminal courts of the State, or, if necessary, he may have resoit to military tribunals. This comprises all thc powers given to the military commander. Herc is a general clause making it the duty of the. military commander torgive protection to all persons in their rights of person and property. Considered by itself, and without retin?me to the context and to other provis ions of tins Act, it is liable, from its generali ty, to bc misunderstood. Whet sort of protection is here 11100111? vvtmt v?ul.itiwifcs of thc right? of persons or of piopcViy mc ucic iiituifweu-i JU wittsii mini ner is this protection to bo given ? These questions arise nt once. It iip?cai'S that some of thc military com manders have understood this grant of power as al)-comprchensivet conferring on them thc power to remove thc oxecntivo and judicial officers of the Stat?), and to appoint otbet officers in their places, to suspend thc legisla tive power of thc State, to take under theil control, by officers appointed by themselves, thc collection and disbursement of the rove tines of the State, to prohibit thc execution ol the laws of thc State by thc agency of its np pointed ollicers and agents, to change the ex isling laws in matters a fleeting purely ei vi and private righto, to suspend or enjoin tin execution of judgments an 1 decrees of tin established State courts, to interfere in tin ordinary administration of justice in the Statt courts, by prescribing new qualifications fo jurors, and to chango, upon thc ground of ex pediency, the existing relations of thc partie to contracts, giving protection to one party b' violating the rights of the other party. I fcid confident'that those military ollicers in nil they have done, hnvc supposed t hat the; had full warrant for their action. Their ed nentinn and training have not been of tb kind to fit them for the delicate and ditlicul tnsk of giving construction to such a statut ns that now under consideration. They rc quire instruction, and nearly all of them hav asked for i nsf ruction, to solve their ow doubts, and to furnish to them a safe grouh for the performance of their duties. There can be no doubt as to the rule t construction according to which wo must ir tcrprct this grant of power. It is a grant c power to military authority, over civil righi and citizens, in time of peace, lt is a nc jurisdiction, never granted before, by whicl in certain particulars and for certain purpose thc established principio that tho milit?t shall bo subordinate to.thc civil authority, reversed. The. rule of construction to bo iq plied to such a gr^nt of power is thus state ?11 Dwnrrison Statute*.', pago 052 : A statu creating a new jurisdiction ought to bc co struct) strictly." Guided by thi? rule, and in tuc light other rules of reconstruction familiar to eve: lawyer, especially of those which teach us th in giving construction to single clauses v must look to tho context and to thc whole hu that general chuf?os arc to bo controlled I particular clauses, and that such constructit is to bc put on n special clause as to make harmonize with tho other parts of the statut so ns to avoid repugnancy. 1 proceed to tl construction of t his part of tho Act. To consider, . then, in tho first place, tl terms of thc grant. . lt is of a power to pi toot all persons in their rights of person ai property. It is not a power to ?rente n< rights, but only to protect thoso which ox and aro established by thc laws under whi those people live. It is n power to presen not to nbrogato; to sustain thc existing frai of sooinl order and oivil rulo, nnd ?lot a pow to introduce military rulo in its pince. In foot, it is n pojico powor, and tho protooti horo intended, is protection of porsons a property against violeno?, unlawful forco, a Griminal infraction, lt is given to meet f contingency recited in thc proamblo, of n wt ,df 4t adequate protection for life and prop tyr" *nd th? necessity also rcoitcd, "t! peace ?nd good drdor should bo enforced." This construction is mudo .?nore oppar when'wo look at tho immediate contoxt, 1 seo in what uiodo und by what agct.cy t ? "r */ protection is to bo secured. This duty or power of protection is to bc performed by the suppression of insurrection, disorder and vio lence, and by tho punishment, either by the agency of thc State courts, or by military commissioners, when necessary, of all disturb ers of thc public peuce and crimin?is; and it is declared that all interference, under color of State authority, with the exorcise of this military authority, shall bo null and void. The next succeeding clause provides for a speedy trial of tho offender, forbids the inflic tion of cruel and unusual punishment, and re quires that sentences of these military courts which involve thc liberty or life of the ac cused .shall have thc approval of thc command ing general, and as to a sentence of death, the approval of the President, before execu tion. All these special provisions ha re reference to the preservation of order, and protection against violence and crime. They touch no other department or function of the civil ad ministration, save only its criminal jurisdic tion, and even as to that, the clear meaning of this Act is, that it is uot to bo interfered with by thc military authority, unless when a ne cessity fur such interference may happen to arise. 1 sec no authority, nor any shadow of au thority, for interference with any other courts in the exercise of criminal jurisdiction. Thc existing tivil authority in all its other depart ments-legislative, executive and judicial-is left untouched. There is no provision, even under tho plea of necessity, to establish, by military authority, courts or tribunals for thc trial of civil cases, or for thc protection of such civil rights of person or property ase?me within tho cognizance of civil courts as con tra-distinguished from criminal courts. In point of tact, there was no foundation f jr such a grant, of power, for the civil rights Act and the Freedmen's l?uroan Act, neither of which is supcrccded by this Act, made ample pro vision for thc protection of all merely civil right.*., whore thc laws or courts of these States might fail to give full, impartial pro tection. I find no authority anywhere in this Act for tho removal, by the military commander of thc proper officers of a State either cxeeu tive or judicial, ortho appointment of per sons to their places. Nothing short, of an ex press grant bf power would justify tho rornoV ai ui Ml? i-1 ? j >ui ii i ni i;m, ul ptlUll lill imiuci . There is no grant expressed or even implied On thc contrary, thc Act clearly enough for bids it. The regular State officials duly elco ted and qualified aro entitled to hold their of lieos. They, too, have rights which tho mili tary commander is bound to protect, not au thnrized to destroy. Wc find in the concluding clause of tin sixth section of the Act that these otlicial are recognized, and express provision i.s mad to perpetuate them. lt is enacted that "li nil elections to any ofiieo under such provis ional governments, all persons shall bo ont! tied to vote under thc provisions of the fiftl section of this Act J and no person shall b eligible to any ollice under such provisions governments who would be disqualified froi holding ollice under thc provisions of th i Act."' This provision not only recognizes all th officers of tho Provisional Governments, hui in case of vacancies, very clearly points on bow they are to bc tilled ; and that happen to bo in usual way, by the people, and not h any other agency or any other power, ci tilt Stale or Federal, civil or military. 1 find it impossible under the provisions < this Act to comprehend such an official as (I o vernor of one of these States appointed I ollice by one of these military commander Certainly he is not tho Governor recognize by the laws of thc State, elected hy tho pc plo of thc State, and clothed as such with tl chief executive power. Nor is ho appointe as a Military Governor for n State which h no lawful Governor, under the pressure of i existing necessity, to oxeroisc powers at larg Tho intention, no doubt, was to appoint lil to fill a vacancy occasioned by a military r der, and to put him in tho placo of thc t moved Governor, to execute thc functions tho office os provided by law. The law tal; no cognizance of such an official, and he clothed with no authority or color of jiutho ty? What is true as to the governor is equal truo as to all thc other legislative, executi and judicial ofiicors of tho State If t military commander can oust one from his i fioo, bc can oust them all. If beean fill 0 vacancy bc cnn fill nil vacancies, and th usurp all civil jurisdiction into his own ham or thc hands of those who hold their appoi monts from him and subject to his power removal, and thus frustrato the very right cured to tho people by this Act. Certaii this Act is ri[>#>rous enough in the pov which it gives. With all its severity, I right of electing their own ofiicors is still I with tho people, and it must bc preserved. I must not bc understood ns fixing limit; tho power of the military conimander in c of an actual -insurrection or riot. It may h pen that an insurrection in one. of thoso Sta may be so general and formidable ns to roqti thc temporary suspension of all civil gove mont, and the establishment of martial lott its plr And tho sumo thing may be t as to looal disordor or riot in rcferonco to civil government of tho city or placo wli it breaks out. Whatever power is ncccss to meet snob omergencios, tho military ct mander may properly exercise. I confino I self to tho proper authority of tho milit commander whore peace and ordor prevail When ponoo and ordor do prevail, it ia no lowalde, to displace, tho civil officer? and point others in their pinces under any idea i tho military commander oan bettet pcrf hrs duties and carry ottt tho general tmrp uf thc Act hy thc agency of civil officer ?. ? MS * .... his own choie?! rnthetr than by the lawful in cumbents. The Act gives him no right to resort to such agency, but does givo him tho right to have " a sufficient military force" to enable him " to perform his duties and en force his authority withiu tho district to which ly is assigned." In th<H?*pr>ression of insurrection ami ri' ot, tho military ?Wot in ant jr is wholly inde pendent- of tho civil authority Sn, too, io thc trial and punishment of criminals and of fenders, he may suporccde the civil jurisdic tion. His power is to bc exercised io these special emergencies, and the moans are put in to his hands by which it is to bo exercised, that is to say, " a sufficient military force to enable such officer to perform his duties and enforoo Iiis authority," and military tribunals of hrs own appointment to try and punish of fenders. These arc strictly military powers, to bc executed by military authority, not by thc civil authority, or by civil ollicers appoint ed by bini to perform ordinary civil duties. If these emergencies docjiot happen, if civ il order is preserved, and criminals arc duly prosecuted by the regular criminal Courts, thc military power though present must remain passive. Its proper function is to preserve thc peace, to act promptly when the poace is brok?.n, ami restore order. When that is done arid the civil authority may again safely resume its functions, the military power be comes again passive, huton guard and watch ful. , 'J his, in my judgment, is thc whole scope of tho military power conferred by this Act, and in arriving at this construction of thc Act, I have not found it necessary to resort to thc strict construction which is allowable What has been said indicates my opinion as to any supposed power of the military com mander lo change or modify tho laws in force. The military commander is made a conserva tor of tho peace, not a legislator. His duties are military duties, executive duties, not leg islative duties. He has no authority to enact or <1 'clare, a new code of laws for the people within his district under any idea that he can make a better code than tho people have made for themselves. The public policy is not com mittet) to his discretion. The. Congress whicl passed ibis Act undertook in certain gravi particulars to change these laws, and thesi cliaiij.es boluc made, thc Congress saw no fur tfichu >.r?nflw.0j?v nf fthnriro. .but..wyre COUton tu iwiYo all tho other laws in tull TOrcc, uu subject to this emphatic declaration, that as t< these laws and such future changes as inigh bo expedient, thc question of expediency nm the power to alter, amend or abolish, modify control, or fluporccdo tho same." * Where then, docs a military commander find his au thor ?ty " to abolish, modify, control, or su pcr.scde" any ono of these laws? The enumeration of the extraordinary pow ors exercised by tho military commanders ii some of the districts would extend this opin ion to an unreasonable length. A few instan ces must suffice. In one of these districts the governor of State has been deposed under a threat of mi ttnry force, and another person, called a po\ cruo7, has been appointed by tho militar commander, in cases of necessity, to trnnsfi tho jurisdiction of a criminal ?;ourt to a mi ?tary tribunal. That being the specific nt thority over thc criminal courts given by til Act, no other authority over them can bo lav fully exercised by the military cnminnntler. llut, in this instance, thc judge has, by mil tary order, been ejected from his office, and privat^gftti/.cii bas been appointed judge i his pTweO, by military authority, mid is no in tho exercise of criminal jurisdiction "ov< all erintlls, misdemeanors, and offences," con milted within the territorial jurisdiction of tl court. This military appointment is certaii ly not authorized to try any one for offence ? a member of u military tribunal, and he hi just as lltt?o authority to try and punish ai offender os n judge of a uri in i nal court of tl State. It happons that this private citizen, th' placed on tho bench, is to sit as the solo judi in a criminal court, whoso jurisdiction oxton to cases involving thc life of the accused, ho has any judicial power in any case, ho h tho samo power to take cognizance of caph cases, and to sentence tho accused to dent and ordor his execution. A strange speetacl whe.ro tho judge and tho crimipaj^jnay vc well f'phnhtxb places;" for if tho crimir has unlawfully taken lifo, so too docs thc judj. This is thc inevitable result, for the only t bunal, tho only judges, if they oan he call judges, which a military commander can cc statute and appoint under this Act, to inti tho death penalty, ls a.military court co poscdij of a boan!, and called in tho Ad " military commission." 1 see no relief for tho condom ned agaii tho sentence of tho agent of the military co mander, lt is not the sort of court win sentence of death must bc first approved by t commander and finally hy the President J ?hat is allowed only where thc sentence pronounced by a " military commission." Nor isdt n sentence pronounced by tho rig ful court of tho State, but by n court, and a judge, not clothed with authority under I law8.of.tho State, but constituted by tho n ?tory authority. As tho representative of t military.authority, this Act forbids intcrl encc ".urtder color of Stato authority " w the. exorcise of his functions. In another ono of theso districts; a mil it order oommnuds tho governor of thc Stati I forbid tho ro?ssonibling of tho legislature, i thus suspends tho proper legislativo powot tho State. In' tho samo district nn order been issued " to relieve the treasurer of State from thc duties, bonds, books, pap &o.t appertaining to his office'* ?nd to pu I* assistant quartermaster of United States "TUntccrs" in place of tho romoved trcasui the duties or which quartermaster treas' arc thus sumutoucd up : Ile is to mak 0 ? ?K* ? the headquarters of thc district "the same reports and returns required i'roui the treasurer, aud n monthly statement of receipts and ex penditures for the support of the penitentia ry, State asylum, und the support of the pro visional State government; but no scrip or wavrant? for outstanding dobts of Other Kind than thoso specified will b* paid Without cn?, oial authority from these -beat?^uarlei?. H ? will d?posit funds in tho same manner ns though tl?cy wore those of thc United States." In another of thone distkletsi a body of mil itary edicts, issued in general and special or ders regularly numbered, and in occasional circulars, have been promulgated, which al ready begin to assume the dimensions of a eode. These military orders modify the ex isting law in the reined i es" lb r the collection of debts, the enforcement of judgments' and de crees for the payment of looney, staying pro ceedings instituted, prohibiting, il) Certain eases, tho right to bring suit, enjoining pro ceedings on ex?cution for the terni of twelve months, giving new liens in ccrtiii ir cases, es tablishing homestead exemptions, declaring what shall ben legal tender1, abolishing in cer tain cases the remedy by foreign attachment, abolishing bail' " as heretofore authorized" in cn.ses ex contradi!, but not in " other ea ses, knowri'ns'actions delicto," and changing, in several particulars, the cxis?iig laws as le the punishment of crimes, and directing that thc crimes referred to "shall bc punished.by imprisonment at hard lab?f for a term not ex ceeding ten years nor leas than two years, in thc discretion of the court having jurisdiction thereof." Otic of these general orders, being number ten of thc series, contains no less than seventeen sections, embodying thc various changes and modifications wh'.clrhave been recited i The question at dric? arises in the'mind of every lawyer, what'power'of discretion belongs to the court having jurisdiction of any o'f these offences to sentence a criminal to any other or different punishment than that provided by the law which vests him with jurisdiction. The concluding paragraph of this order, No. 10, is in these words : " Any law or ordinance heretofore in force in North Carolina or South Carolina, inconsistent with thc' provisions of this general order, are hereby.suspended and declared inoperative." Thus announcing not only a power to suspend the laws, but to dc I elarc them generally inoperative, and aosu a'?tlmr?ty nowc,'s 01'cg'?^nt'o? .>'&'**-? The ground uport which these extraordina ry powers arc. based is thus set' fp'rlh in Mili tary Order No." 1, issued in this district : *' Thc civil govern mon ts n?w existing in North and South Carolina is provisional o"nly, and in nil respects subject to thc paramount au thority of thc United States, nt any time to abolish, modify, control,- or supcrccde thc same." Thus far the provisions Cf the Act of Congress are well recited!, What follows is in these words: " Local ltiwn'and munici pal regulations, not ineonsistent'with ihe Con stitution nod laws of tho'United5 States,? ol the proclamations of the President^ or with such regulations arc or may b'c' prescribed in the orders of thc commanding general, arc hereby declared to be in force, and in con fortuity therewith, civil officers nre hereby au thorizud to continue thc exercise of their prop cr functions, and will be respected ?md obcyec by the inhabitants." The construction of his powers vJhdcr'tiii Act of Congress places thc military command er on thc same footing as thc Congress of tin United States. It assumes that " thc para mount authority of tho United States lit on*, time to abolish, modify, control or supcrccde,' is vested in him as fully as it was reserved t< Congress. Ile deems himself a representa tivc of that paramount authority. Ile put himself upon an equality with tho law-inakitq power of thc Union, tho only paramount au thority in our Government, so far, nt least, n: thc enactment of laws is concerned. II places himself on higher ground thnn th President, who is simply an excoutivc officci lie-assumes, directly or indirectly, all thc av thority of tho State, legislative, executive an judicial, and in effect declares " I am th State." I regret that I find it necessary to speak F plainly of this assumption of authority, repeat what I have heretofore said, that I tl not doubt that all (these orders have been ii sued under ari' honest belief that they wei necessary or expedient, and fully warrante by tho Act of Congress. Thcro may bo cvi and mischiefs iii- thc laws which these, poop have made for themselves, through their ow legislative bodies, which require* chango j lu none of thoso cnn bc so intolerable na the evi and mischiefs which must ensue from the se of remedy applied. Ono can plainly see whi will bc thc inevitable confusiou and disonh which such disturbances of the wMtolo civ policy of thc State must produce. If tho; military edicts aro allowed to remain cvt during thc brief time in which this provisio al military government may be iii power, tl seeds Will bo sown for snell a future harvc of litigation as has never been indicted' upi j any other people. j There is, in my opinion, ntl executive du to bc performed herc which cannot safely 1 avoided or delayed ; for, notwithstanding tl paramount authority assumed hy these coi mandcrs, they arc not, even ns to their prop executivo duties, in any sense clothed with ptramount authority. They aro, at last, BU ordinato executive .officers. Thoy aro rcspc siblc to the President for thc proper exec ttorr of their duties, and upon him rests t final responsibility. They aro his select agents. His duty is not oil performed by lecting Ruch agents ns ho deems competer but tho duty remains with him to soe to that they excouto their duties faithfully fl according to law. It ia true that this Act of Congress only fer.s to thc President.in the matter of sch ?J" 1 55 .L'.1'..! .'J'. 1 .H.?.l'JJJ_ i i) g and appointing these commanders, and in tt}0 matter of their powers and duties under tho law,, the Act speaks in terms directly to them ; hut this docs not relieve them from their responsibility to tho President, nordoos it relieve hi.H" from tho constitutional obliga tion imposed \lpon him, to *o? that all " tho iarvd bo faithfully^ executed.'/ It end scanJety lib rleeossary to cito .author ity for sb plaiti'o pr'op'?.sitlon' ns this! Never theless, as wo have a recent decision cotiipleto iy in point, 1 may ns well refer to it. Upon the motton made by the State of Mis sissippi before tho Supreme Court of thc Uni ted States at its late term, for icavo to file n> bill against the President of tho United States to enjoin hitri'against executing thc very Acts of Cdrigrc'sa now tinder consideration, tho opinion of, tho court' dpoii dismissing that mo tion-npd it'"800.1118 to lntvt? ticen unnhimous -wns delivered' l>y tlio Chief Justice. -1 nialic the. following quotation from thc opin ion : ." Very diff?rent? is thc duty of tho President in thc exercise of thc power to seo thal thc laws arc faithfully executed, and among those laws thc Acts named in thc bill. Cy thc' first of these Acts, lie is required to assign" generals tb command in the several military districts,, and to detail sufficient mili tary force to enable such ofiiecnj to discharge their duties under thc law. By tho supple mentary Act', other duties arciniposed on thc several commanding generals, and their duties must necessarily be performed uudcr thc su pervision of the President' as commander-in chief. . Thc duty tints imposed on the Presi dent is iii no just sense ministerial, lt is purely executive and political." Certain question;? nave beor? propounded from one of these military districts touching the construction of thc power of thc military commander to constitute military tribunals for thc. trial of offenders, which I' will next consider:- , Whilst the Aov.do?R n'ot in terms displaco thc regular cViuiiu'tYl courts of thc State, it docs" give the" power tb the military command er, when; ifi'lhis j?dgnV?'rit> n necessity arises, to take tnc ndhViiii^tthtlin of thc criminal law into his own h?nd?,' a:n'd to try apd punish of fenders by means of military commissions. In giving construction to this power wo must not forget the' recent and nuthoritivo exposition given by tho'Supreme Court of tho Uni?c.d'St?tes as to thc power of Congress to ?itl^ns iirth?'ilmc ?f^mk;- faiafoittHttf pliatie dcclariition as to which there was no dissent or difference of opinion among tho judges.; thnVsvyelv a power is not warranted by thc Co ii s ti tu ti ort'/ . A single extract from tho opini?n of tho'minority, as delivered by tho Chief Justice will suffice. " We by-no means assert that Corless can establish and apply th.c laws of v'hf' wdiero no war has been de clared or exista: "Where peace exists tho laws'of peace jj must prevail. What wo do maintain is, that When thc nation is involved in war, and soinc' portions of the country aro invaded; and all r.rc exposed to invasion, it ia within the power of Congress to determine in what Siaics or districts stich croat, and immi nent '.public- dhnge'r'exists, ns justices tho au thorization of milittrry tribunals for tho trial of ?limes-and offences against the disciplino of scc?ri.ty of tho'ftrhVy or against thc publia safety.". , . Limiting myself herc simply to thc con s'rufctiofi of this- Act of Congress, and to tho que?tiori in'What way it should bc executed, I have no hesitation in saying that nothing short of an absolute ?r controlling necessity* would givo any color cf authority for arraign ing a citizen before a military commission. A person charged with crime in any of these military districts"has- rights to be protected, rights tho most'sacred and inviolable, and among these tho right of trial by jury, accord ing to thc law's of thc land. When a citizen is arraigned before a-military commission on a nrimiual ch.ir{*clte is iio longer under thc pro tection df last;, nor surrounded with those safe guards wbiclrnrc provided in tho Constitution. This A ot; pnci:Cd: in-a time of peace, when all thc courts, State and Federal, nrejn tho undisturbed exercise of their jurisdiction, nu thorizes, at tho'dtserVition of a military officer, thc soi/.iirc, trihi' arid condemnation of tho citizen/ The nectised may bc sentencod to death, and thd* ntfntoneo maybe executed, without indictment, without counsel, without a jury arid without n judge. A sontenco which forfeits all thc proporty of tho accused requires no apprfevul. If it affects the liberty of tho ribeilsod it requires thc npprovnl of thc coniliituiding general j and if it affects h if lifo; if requires thc approval of the Cenoral mid of thc President. Military and cxeeutivi authority rule throughout, in the trial, th< sentence, and tho executions. No habeas cor put from any State court can bo invoked for this law decir.rcs that Mall interference under color of State authority, with thc ox ercise of military authority, nuder this Act shall be nul' and void " 1 repent it, that nothing, short of an nhse lute necessity can give any color of authorit to a military ootnmnndcr to recall into otfercis such n power. It is a power, thc oxerciso c which may involvo him and every ono coi corned in the gwvest/ responsibilities. Til occasion, for its oxoroiso-should bc reported . once lo? tho Executive for such instructions i may ho deemed' nooessory and proper. Questions have arisen whether, under th power, theso military commissioners eau tal cognizance of offences committed beforo tl passage of the Act, nnd whether (hey can t and punish fer acts not made crimes or .offen? hy Federal or Stato law. I am ?Tearty of opinion that (hoy \iayo,. jurisdiction as to either. " They can $alto c< niinuce of no offence that has not happen after tho law took offect. Inasmuch ria t tribunal to punish, and tho moasui-b or dcgi of punishment are established bv thia Acfc/* ' [SEK FOURTH PACjK.) .... :. ' .Jk fi: i4vVj