]'! 1 5 LIC DOCUMENTS. 



661 



ii.'uicstead exemptions, declaring what 



.shall b 



attachment, uliolishii; 

 I " tu cases <> 

 IMS, known us action- 

 i several particulars, the e \Utm_; 

 '.'.ic |iuui diment of crimes, and dii 



d to " rdiall lie {mm ,li.-d by 



it at hard labor for a term nut c-;ccedinic 



I- le-.s iliaii two years, in tin- discretion 



i having jurisdiction thereof." One of 



in^ iiiiinlier ten of the series, 



lions, embodying 



'.x-s and modifications which have 



The question at once arises in the mind of every 

 . what power or discretion belongs to the court 

 jurisdiction of any of these offences, to son- 

 i 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. li, is in these words : " Any law or ordi- 

 nance heretofore in force in North Carolina or South 

 i~tent with the provisions of this 

 general order, are hereby suspended nud declared 

 inoperative." Thus announcing, not only a power 

 to suspend the laws, but to declare them generally 

 inoperative, and assuming full powers of legislation 

 by the. military authority. 



The ground upon which these extraordinary pow- 

 ers u iv based is thus set forth in military order No. 1, 

 issued in this district : "The civil government now 

 : in North Carolina and South Carolina is 

 i >nal only, and in all respects subject to the 

 ; miit authority of the United States at any 

 time to abolish, modify, control, or supersede the 

 Thin far the 'provisions of the act of Con- 

 are well recited. What follows is in these 

 : "Local laws and municipal regulations not 

 -istent with the Constitution and laws of the 

 1 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 therewith 

 civil officers are hereby authorized to continue the 

 exercise of their proper functions, and will be re- 

 spected and obeyed by the inhabitants." 



This cou.struelion of his powers under the act of 

 Congress places the military commander on the same 

 footing as the Congress of the United States. It as- 

 sumes that " the paramount authority of the United 

 at any time to abolish, modify, control, or su- 

 d in him as fully as it is reserved 

 to Congress. He deems himself a representative 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 

 feast, as the enactment of laws is concerned. 

 He places hitnself on higher ground than the Presi- 

 dent, who is simply an executive officer. He assumes, 

 directly or indirectly, all the authority of the State, 

 le relative, executive, and judicial, and in effect de- 

 " I am the State." 



;vt that I find it necessary to speak so plainly 

 of this assumption of authority. I repeat what 1 

 have heretofore said, that I do not doubt that all 

 orders have been issued under an honest belief 

 that they were necessary or expedient, and fully war- 

 i by the act of CoagreM. There may be evils 

 and mischiefs 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 intolerable as th 1 mischiefs which 



must ensue from the sort of remedy applied. One 

 can plainly see what will be the inevitable confusion 

 and disorder which such disturbances of the whole 

 civil policy of the State must produce. If these mil- 

 itary edicts are allowed to remain even during the 

 brief time in which this provisional military govern- 



ment may be in power, the seed* will be town for 



i future harvest of Inij. .:..;! as has never been 

 inilicted upon any other pc.iph-. 



in my opinion, .. duty to be 



icd here, \\ hn-!i . led OF 



landing the paramount au- 

 thority u-si!, command. -i -. 



in their proper executive duties, in any sense, 

 clothed \\ith a paramount authority. They are, at 



-.Ulcers. They a. 



.spoiiMhlc to the Pre-i.; proper execution 



of their duties, and upon him rests t|, L . t'nt-.il ( 

 siliilitv. Th .elected agents. II:- duty is 



not all performed ! . !. ctin^ such agents as he 

 deem-, compct<-iit ; lint the duty remains with him to 

 see to it that they execute their duties faithfully and 

 according to law. 



It is true that this act of Congress only refers to 

 the President in the matter of selecting and appoint 

 ing these commanders, and in the matter of their 

 powers and duties under the law, the act speaks in 

 terms directly to them ; but this docs not relieve 

 them from their responsibility to the President, nor 

 does it relieve him from the constitutional obligation 

 imposed upon him to see that all " the laws be faith- 

 fully executed." 



It can scarcely be necessary to cite authority for 

 so plain a proposition as this. Nevertheless, as we 

 have a recent decision completely in point, I may as 

 well refer to it. 



Upon the motion made by the State of Mississippi 

 before the Supreme Court of the United States at its 

 late term, For leave to file a bill against the President 

 of the United States, to enjoin mm against execu- 

 ting the very acts of Congress now under considera- 

 tion, the opinion of the court upon dismissing that 

 motion, and it seems to have been unanimous, was 

 delivered by the Chief Justice. I make the follow- 

 ing quotation from the opinion : " Very different 'is 

 the duty of the President in the exercise of the 

 power to see that the laws are faithfully executed, 

 and among those laws the acts named in the bill. 

 By the first of these acts he is required to assign 

 generals to command in the several military districts, 

 and to detail sufficient military force to enable such 

 officers to discharge their duties under the law. By. 

 the supplementary act, other duties are imposed on 

 the several commanding generals, and their duties 

 must necessarily be performed under the supervi- 

 sion of the President as Commander-in-Chief. The 

 duty thus imposed on the President is in no just 

 sense ministerial. It is purely executive and politi- 

 cal." 



Certain questions have been propounded from one 

 of these military districts, touching the construction 

 of the power of the military commander to constitute 

 military tribunals for the trial of offenders, which I 

 will next consider. 



Whilst the act does not in terms displace the regu- 

 lar criminal courts^ of the State, it does give the 

 power to the military commander, when in his judg- 

 ment a necessity arises, to take the administration of 

 the criminal law into his own hands, and to try and 

 punish offenders by means of military commissions. 



In giving construction to this power, we must not 

 forget the recent and authoritative exposition given 

 Supreme Court of the United States as to the 

 power of Congress to provide for military 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 a power is not warranted oy the Constitu- 

 tion. A single extract from the opinion of the mi- 

 nority, as delivered by the Chief-Justice, will suffice : 

 " We by no means assert that Congress can establish 

 and apply the laws of war where no war has been de- 

 clared or exists. Where peace exists, the h.ws of 

 peace must prevail. What we do maintain K th.it 

 when the nation is involved in war, and some por- 

 tions of the country arc invaded, and all are exposed 



