The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1867-06-17

strictly"
rules OF construction familiar to every lawyer,
especially of those which teach us that in giving
construction to single clauses must look to the
context and TO the whole law; that general clauses
to be controlled by particular clauses and that
such construction is to be put on a special clause
as to make it harmonic with the other parts Of the
statute, so as to avoid repugnancy. i proceed to
the construction of this part of the act.
To consider, then, in the first place, the terms of
the grant. IL is of power to protect all persons
in their rights OF person and property Il is nota
power to create new rights, but only TO protect
those which exist and are established by the laws
under which these people live. IL is power to
frame of social order and civil rule, and not a
power to introduce military rule In its place. In
intended is protection Of persons and property
against violence, unlawful force, and criminal In
fraction. II is given to meet the contingency re-
cited in the preamble, Of want of "adequate pro-
lection for life and property" and the necessity
also recied, "that peace and good order should be
This construction is made more apparent when
we look at the immediate context, and see in what
mode, and by what agency this protection is to be
secured. This duty, or power of protection, is to
e performed by the suppression Of insurrechon,
disorder, and violence, and by the punishment,
iher by the agency of the State courts, or by mill
ary commissioners, when necessary, OF all dis
urbers Of the public peace and criminals and 1t is
eclared that ali interference, under color of State
authority, with the exercise of this military au-
thority, shall be null and void.
The next succeeding clause provides for a speedy
trial of the offender forbids the infiction of cruel
and unusual punishment and requires that
liberty or life of the accused shall have the APP
proval of the commanding general, and, as to a
sentence OF death, the approval OF the President,
before execution.
All these special provisions have reference to
e S o. SeT tonc T n sr
ment OF function of the civil administration, save
only its criminal jurisdiction, and even as to that
the clear meaning OF this act is that is not to be
interfered with by the military authority, unless
when necessity for such interference may hap
1 see no authority, nor any shadow of authority,
for interference with any other courts any other
jurisdiction than criminal courts in the exercise
of criminal jurisdiction. The existing civil au-
thority in all its other departments, legislative,
executive and judicial, is left untouched. There
is no provision, under the plea of necessity,
to establish, by military authority, courts or tri-
bunals for the trial OF civil cases. or for the pro-
lection of such civil rights of person or property
as come within the cognizance of civil courts as
contradistinguished from criminal courts. In
grant of power, for the Civil Rights act and the
Freedman's Bureau act neither Of which is su-
perseded by this act made ample provision tor
the protection of all merely civil rights where the
laws or courts Of these States might fail to give
full, impartial protection.
find no authority anywhere in this act for the
removal by the military commander Of the proper
officers of State, either executive or judicial, or
the appointment of persons to their places. No.
thing short OF an express grant OF power would
justify the removal or the appointment of such an
officer. There is no such grant expressed or even
forbds it. The regular State officias' duiy eIected
and qualified, are entitled to hold their offices.
They, too, have rights which the military COM
mander is bound to protect not authorized to de-
We find in the concluding clause of the sixth
section of the act that these officials are recog-
nized and express provision is made to perpetuate
them. 1t is enacted that Gin all elections to any
office under such provisional governments, all
persons shall be entitled to vote, and none others,
who are entitled to vote under the provisions of
the fifth section of this act; and NO person shall be
eligible to any office under such provisional gov
ernments who would be disqualified from holding
| Office under the provisions OF this act"
| not Iry saIIf Tho
GERS of the provisional governments, but, in case
of vacancies, very clearly points out how they are
| way by the people, and not by any other agency
or any other power, either State or Federal, civil
find it Impossible under the provisions of this
act TO comprehend such an official a Governor
of one of these States appointed to Office by of
these military commanders Certainly he is not
the Governor recognized by the laws Of the State
elected by the people of the State, and clothed as
such with the chief executive power. Nor is he
appointed as military Governor for q State which
has no lawful Governor, under the pressure of an
existing necessity to exercise powers at large The
intention, no doubt, was to appoint him TO I'LL q
vacancy S S Py oIoef ana 70 put
ecute the functions of the office as provided by
law. The law takes no cognizance of such an Off
cal, and he is clothed with no authority or color
of authority.
What is true as to the Governor is equally true
as to all the other legislative executive, and jo
dical officers of the State. If the military COM
mander can oust one from his Office he can oust
them all. If he can fill one vacancy he can fill all
vacancies, and thus usurp all civil jurisdiction
| into his own hands, or the hands of those who
| hold their appointments from him and subject to
his power of removal, and thus illustrate the very
right secured to the people by this act. Certainly
this act is rigorous enough in the power which IL
gives. With all its severity, the right of eecting
their officers is still left with the people, and
| 1t must be preserved
| 1 must not be understood as fixing limits to the
| power of the military commander in case of an
| actual insurrecton or riot. 1t may happen that
| an insurrection in one Of these States may be so
general and formidable as to require the temporary
| suspension of all civil government, and the es-
| tabltshment OF martial law in its place. And the
same thing may be true as to local disorder riot
in reference TO the civil government OF the city
| place where 1t breaks out Whatever power is
| necessary TO meet such emergencies, the military
| commander may properly exerciee. contne my
self to the proper authority of the military COM
| mander where peace and order prevail. When
| peace and order do prevail II is not allowable to
displace the civil officers and appoint others in
| their places under any idea that the military COM
out the general purposes OF the act by the agency
OF civil officers OF his own choice rather than by
the lawful incumbents. The act gives him no right
| to resort TO such agency, but does give him the
right TO have ga sufficient military force 70 en-
| able him ''to perform his duties and enforce his
authority within the district to which he is
| signed"
| military commander is wholly independent of the
civil authority. So, too In the trial and punish
| ment of criminals and offenders, he may supersede
the civil jurisdiction His power is to be exercised
in these special emergencies, and the means are
put into his hands by which it is TO be exercised,
that is to say, 'a sufficient military force TO enable
such officer to perform his duties and enforce his
authority" and military tribunals of his own ap-
| ponment to try and punish offenders. These are
strictly military powers to be executed by military
authority, not by the civil authority or by civil
oIheers appointed by him to perform ordinary civil
If these emergenc cies do not happen, If civil or
ser is preserved and criminals are duly prosecuted