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 wherever he finds
them, without warrant, accusation, or proof of probable
cause. If he gives them a trial before he inflicts the
punishment, he gives it of his grace and mercy, not because
he is commanded so to do.

* * * * *

"Cruel or unusual punishment is not to be inflicted, but who
is to decide what is cruel and what is unusual? * * * 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
the almost insupportable forms of torture invented for
military punishment lie within the range of choice. 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.

"It is plain that the authority here given to the military
officer amounts to absolute despotism.

* * * * *

"I come now to a question which is, if possible, still more
important. Have we the power to establish and carry into
execution a measure like this? I answer certainly not, if we
derive our authority from the Constitution, and if we are
bound by the limitations which it imposes. This proposition
is perfectly clear; that no branch of the Federal
Government, executive, legislative, or judicial, can have
any just powers except those which it derives through and
exercises under the organic law of the Union. Outside of the
Constitution we have no legal authority more than private
citizens, and within it we have only so much as that
instrument gives us. This broad principle limits all our
function and applies to all subjects. It protects not only
the citizens of States which are within the Union, but it
shields eve