The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1867-05-18
The MILITARY C..Aisio. Of tho South.


The Military Condition Of the South.
The Southern States are In an anomalous
position with respect to law. They are, under
the constitution, nominalIy entitled to the mass
Of rights 1t secures yet they are go far from
being selfgoverning republican communities
that the whole machinery Of civil society, in
any one or all, may any day suddenly become
subordinate to the will and authority of mill
tary rulers. practically absolute. In such
case we clearly cannot say that civil law-the re-
publican routine OF peace. is reestablished; yet
military Law is neither declared nor exercised.
Martial law was recently declared In Ireland
merely that the aashsrisics might not be
/ bsthered by the hAbeas oerpns -sct; yet &he'
habess corpus acs b In fnli operstioa In the
SeatA. - We have asssiy seea, and coarts,
State and FEDERAL. slf and dc,ermine all ques-
tioas Of personal right. unawed BY neighboring
bayones. In thus assigning to the South
middle legal status between the laws Of peace
and the laws of warm making II . special
case by special law-Congress has on the
one hand given the South full opportunity to
reconstruct itself as a civil and political COM
munity, free in will. unoppressed by military
domination; and, ON the other hand, has well
provided that it shall not overstep certain
definite lines, and shall not offend the national
propriety by an outrageous disregard Of re-
quirements that may be made by the con-
queror.
h0u 10
ton. Nocommunity was ever before so strange
ly held between two extreme conditions of ex-
istenoe tits o position, moreover. that imposes
duties peculiarly delicate In their nature upon
ell parHes-the more especially at those points
where there is contact and, may be, friction.
Such delicate duties are especially imposed
upon the military commanders intrusted with
the execution OF the Reconstruction law, and
who must for the present be the expounders Of
the law als0-whO must act under the military
bill, and, in degree, judge for themselves when
such interference with the civil Law es the bill
contemplates is called for and necessary. Here
is point on which there will inesitably be
differences Of. opinion. Such differences have
always ssisea. DiEereus viewS as to the Hme.
whom the ppesaiye power Of law ~hould b.
invoked arise even here In our Swas city. We
cannst hope. therefore, that they NH -eos a<iss
in thsAiagalar peaiticai position Af ths 8estAarn1
States. 10 decide then herr isA p0ishef 0raa$
deiicacy; for wofse essults must low, from
error either way. since sooiety there has lost il
natural elasticity-ib recuperative power. In
European rule the presumption In doubtful cases
is always in favor Of the enforcement Of law,
however harsh or onerous the law may seem
but Il IL the essence Of our American system
that the presumption Is the other way-that In
doubtful cases we presume In favor Of personal
freedon-of the largest liberty Of action short
Of crime. trusting and believing that no man will
designedly violate the law. Hence we are less
governed than others ere. Our military com
manders should never forget that this aspira-
ton toward the least possible government and
the largest liberty consistent with the rights Of
others ID drst principle in all American Law.
But the continued existence Of society depends
on peace and justice. They must therefore Ger
tainly preserve peace and do what they may
to secure justice without too deeply touching
the organisation Of courts. Where does vio-
lation Of the peace begini General Scho6eid
warned . Richmond newspaper for certain at
terances. He believed that such utterances
stimulated ill-will on the part Of tho
people towards the soldiers; that such
illwill generated . naughty, insulting
demeanor, and thus led to such relations
between his soldiers and the people as
lead to collisions, and any fight might lead to
general instruction throughout the city. Here
is exactly q case in point Did the General
interfere in favor of peace at too early stage
We are Of opinion that in all such cases the
Generals should be sure there are no other
means before they use their authority. In the
case Of the incendiary orator, Hayward, the
allegation was that his utterances were incite-
ments to riot This was tried by the civil au-
thorities. they were sufficient there, they
would have been in the other case, and would
be in all similar cases. The press is not freer
than speech is; but both rights are limited by
the rights Of the community at large, which
depend upon order and peace. n the courts
can secure the observance Of thai limit-if the
military power is not really necessary-much
10 aarcauy oone ior tue reStoraton ot society,
and we ought to know It.
But IL the courts cannot secure this; IL judi
cial decisions are tinctured with the political
sentiments Of the magistrate; II the hatred
generated by the war renders II impossible for
9 man to have justice without regard to his
history or opinions II we can see this in
cases tried before the Southern courts, then
we will have some positive evidence resulting
from this experimental bill, and win know
that the South is not competent to guard its
own interests-not so far restored that it can
be Left 10 itself But with this made clear,
should the military authorities under the pres
emit Law then act TO prevent expressions be-
cause they might lead to violencet We be-
lieve not That might lead TO abuses that we