Unionblue,
I suppose one could consider that the application of power makes the executive more interested in wielding it. Davis seems to be more inclined to follow congress' lead than Lincoln and in fact copngress held Davis to a much stricter standard than did the US Congress... Yea for our side... seems the confederates got it right!
Ed
Ed,
Here's a bit more to consider.
Again, from the article I posted about from the web article I gave.
E. Military Justice and Martial Law.
When President Davis acted to suspend habeas corpus in parts of Virginia in early 1862, he did not stop with suppression of the writ itself. His Norfolk order, for example, went on to proclaim martial law and to suspend "all civil jurisdiction." His other orders were similar, although some of them permitted certain civil officers (such as mayors, probate judges, or county tax collectors) to continue performing their functions. With these exceptions, however, the President went far beyond mere foreclosure of a particular judicial remedy; he purported to substitute military for civilian government.
It was not clear that the relevant statute even purported to give President Davis authority to impose martial law; what it said was that he might suspend the writ. After the President acted, Senator Oldham protested that in voting to give him that authority he had had no idea he was also empowering him to suspend civil government. In providing that the President might suspend habeas corpus wherever martial law was needed, however, it could be argued that Congress had either assumed he already possessed the latter power or implicitly granted it to him. The more fundamental question was whether Congress had the power to do so.
The Constitution spoke only of suspending habeas corpus, not of imposing martial law. As Vice-President Stephens said, suspension of the writ merely denies a judicial remedy for unlawful detention; it does not replace civil law. Yet the Constitution did not expressly authorize suspension either--it seemed to assume implicit authority in the President or Congress and imposed limits on that authority. Tradition permitted martial law as well as suspension in an emergency; the U.S. Supreme Court would concede later in
Exparte Milligan that civilians could be tried by military tribunals when the ordinary courts were closed. There was a plausible argument that in the situations contemplated by the Confederate statute, martial law was necessary and proper to defend against enemy assault and thus within the war powers of Congress, if not also within the constitutional authority of the President as Commander-in-Chief.
Not suprisingly, martial law came under sharp attack in the Confederate Congress. The Senate Judiciary Committee, reporting a bill to renew the President's suspension power in September 1862, specified that it meant neither to interfere with the right of civilain defendants to grand jury and public trial nor to empower any officer to declare martial law. Tennessee Representative George Washington Jones said not even Congress could authorize martial law, and Representative Russell offered a bill to prohibit it anywhere in the Confederacy. Nothing came of these legislative initiatives, but President Davis was moved to explain in October that, although he had suspended
civil jurisdiction as well as habeas corpus in some cases, he had nothing to interfere with the ordinary criminal courts: They remained open to reinforce military efforts to preserve order.
At the President's request Congress at the same time established a system of military courts whose judges, appointed by the President with Senate consent, were to hold office throughout the war. Intended essentially as alternatives to traditional courts-martial, these permanent and professional bodies are said to have been a vast improvement on the ad hoc tribunals they were designed to replace. As President Davis had urged, however, their jurisdiction was extended beyond those service-related offenses defined by the Articles of War to embrace crimes involving what he called injuries to private rights. In normal times, said Davis, such matters would be left to the ordinary civilian courts, but during the war (or outside the country) those courts were not always able to sit. Authority to create the new tribunals, he asserted, was found in Congress's powers to make rules to govern the Army and to establish inferior courts; the explicit exception from the grand-jury requirement of
Article 1, Section 9 for "cases arising in the land or naval forces" demonstrated that constitutional safeguards surrounding the ordinary criminal process did not apply.
Later statutes reaffirmed the extension of military jurisdiction to offenses by military personnel that were not related to their duties, and Attorney General George Davis upheld the constitutionality of this practice in early 1865 on the basis of the arguments the President had made in 1862. The U.S. Supreme Court would briefly reach the opposite conclusion in the next century. The extension was not swallowed without protest in the Confederacy; North Carolina Senator Willaim A. Graham insisted in December 1864 that citizens entering the service did not forfeit their right to jury trial "for offences not affecting the good order and efficiency of the army or navy."
Conspicuously, however, the Confederate Congress seems never to have attempted to authorize the military trail of
civilians, as President Lincoln did, even where martial law had been declared--except for passing or importing counterfeit notes in the service of the enemy, which Clement C. Clay in the Senate argued was a war crime. If that was so, then (as courts in the United States would later conclude) the case fell within another traditional exception to the requirements of tenured judge and jury trial. Indeed, when the Confederate Congress in the waning days of the war made it a crime to assert false claims against the government, to conspire to overthrow the Confederacy, or to give military information to the enemy, it provided for courts-martial only of members of the armed forces; civilain defendants were to be tried in the ordinary civil courts, as Acting Attorney General Keyes in November 1863 ruled they must be for treason.
There were occasions, nevertheless, on which Confederate military authorities undertook without statutory authorization to subject civilians to military justice. In late 1861, for example, following the burning of several railroad bridges by Union sympathizers in eastern Tennessee, Secretary of War Judah Benjamin ordered that the alleged perpetrators "be tried summarily by drum-head court-martial and if found guilty executed on the spot by hanging. Habeas corpus not having been suspended there at the time, Judge West H. Humphreys of the Confederate District Court issued writs on behalf of prisoners who argued that the Army lacked jurisdiction to try civilians. "[G]reatly annoyed" by judicial efforts to "take offenders out of [his] hands" for trials before civilian courts that would never convict them, Brigadier General William Carroll declared martial law in and around Knoxville, in order "to suspend for a time the functions of the civil tribunals."
Secretary Benjamin had already declared in no uncertain terms that "[c]ourts of justice have no power to take prisoners of war out of the hands of the military," but Colonel Danville Leadbetter, Carroll's successor as Army commander at Knoxville, was not so sure. Right after the bridges were burned, wrote Leadbetter to Benjamin in January 1862, he would have ignored a writ of habeas corpus, invoking "the military law of self-preservation." Now that the insurrection had been put down, however, the situation was less urgent. Congress had refused to interfere with habeas corpus, and although the closing of civilian courts under martial law effectively prevented them from issuing the writ, Leadbetter was unable to see how the Army could do that "so long as Congress has not suspended the writ."
General Carroll was the first military commander to impose martial law inside the Confederacy, but he was not the last. Not all the subsequent orders attempted to interfere with civilian courts, but in August 1862 Secretary Benjamin was moved to inform commanders everywhere that they had no authority to suspend habeas corpus, and a month later he unceremoniously set aside all declarations of martial law made without express presidential authorization--one of which, he noted the same day in a note to the General who had issued it, the President himself had termed "an unwarrantable assumption of authority."
Thus the judges in eastern Tennessee regained their right to inquire into the legality of military detention, but that did not mean that persons in the position of the alleged bridge-burners were entitled to be turned over to civilian courts. For Benjamin had said at the time that, if an officer was summoned to explain why he held the petitioner in custody, the assertion "that the prisoner was captured in arms against the Government and is held as a prisoner of war" would be "a good and complete answer to the writ."
It was true, Benjamin later wrote, that the citizen who had taken arms against his own government was a traitor subject to prosecution in the civilian courts. But he was also a prisoner of war, subject under the laws of war to be kept in custody until the cessation of hostilities as a matter of self-defense; it was "an act of clemency" not to have him condemned for treason. It was on this ground that, when the insurrection had broken out, Bejamin had ordered most individuals taken "in arms against the government...to be held as prisoners of war, and held in jail till the end of the war."
For the bridge-burners themselves, however, clemency was not in the cards; as noted, they were to be tried summarily by court-martial and hanged. Secretary Benjamin never explained the basis of military jurisdiction over bridge-burners, but General Kirby Smith did. One David Fry, he reported in April 1862, had been apprehended "in citizen's dress" and charged with bridge-burning.
"His presence within our lines in citizen's dress and engaged in the felonious occupation of bridge-burning makes him amenable either as a citizen of East Tennessee to the criminal courts of the land or as a spy to the military court of the service."
In other words, as the leading commentator on Confederate courts later put it, the bridge-burners "were accused not of treason but of a violation of the common law of war." That was enough to bring them within the principle later recognized by the
Mudd and
Quirin cases in the United States; there is no doubt that, at least if Congress had so provided, they could be tried by military tribunals in the United States today.
Perhaps all this sounds vaguely familiar. In late 2001, after the abominations of September 11, President George W. Bush authorized the establishment of military tribunals to try unlawful combatants accused of war crimes, and a few days before these lines were written the Fourth Circuit Court of Appeals upheld the Army's right to detain as a prisoner of war a citizen who had borne arms against his country. It all found a precedent in Secretary Benjamin's 1861 orders to Confederate commanders in East Tennessee.
Sincerely,
Unionblue
Bringing the