To a casual reader of the bill it might seem that some kind of trial was secured by it to persons 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 require that he shall do so.  If any State or Federal court presumes to exercise its legal jurisdiction by the trial of a malefactor without his special permission, he can break it up and punish the judges and jurors as being themselves malefactors.  He can save his friends from justice, and despoil his enemies contrary to justice.

It is also provided that “he shall have power to organize military commissions or tribunals:”  but this power he is not commanded to exercise.  It is merely permissive, and is to be used only “when in his judgment it may be necessary for the trial of offenders.”  Even if the sentence of a commission were made a prerequisite to the punishment of a 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 his own subordinates, and revise all its decisions.  Instead of mitigating the harshness of his single rule, such a 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, apparently to restrain the power of the commanding officer; but it seems to me that they are of no avail for that purpose.  The fourth section provides:  First.  That trials shall not be unnecessarily delayed; but I think I have shown that the power is given to punish without trial; and if so, this provision is practically inoperative.  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 a legal meaning by long use in the courts.  Can it be expected that military officers will understand or follow a rule expressed in language so purely technical and not pertaining in the least degree to their profession?  If not, then each officer may define cruelty according to his own temper, and if it is not usual he will make it usual.  Corporal punishment, imprisonment, the gag, the ball and chain, and all the almost insupportable forms of torture invented for military punishment lie within the range of choice.  Third.  The sentence of a commission is not to be executed without being approved by the commander, 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 a trial and sentence.  I take it to be clear, under this bill, that the military commander may condemn to death without even the form of a trial by a military commission, so that the life of the condemned may depend upon the will of two men instead of one.