Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1867-06-21
- f+o,. ,,rovided. to find the extent and IA

;tary commander; the power or duty ''tC
protect all persons in their rights OF per-
son and property, to suppress insurrectlon,
disorder, and violence, and to punish, OF
cause to be punished, ali dlsturbers OF the
public peace and criminals, and he may
do this by the agency of the criminal courts
Of the State, or, if necessary, he may have
resort to military tribunals.
This comprises all the powers given to
the military commander.
Here is a general clause making it the
duty of the military commander to give
protection to all persons IN their rights OF
person and property. Considered by 1t
self, and without reference to the context
and to other provisions Of the act, 1t is
liable, from its generality, to be misunder-
stood.
What sort of protection is here meant
What violations of the rights Of persons
Or of property are here intended? In what
manner is this protection to be gwen ,
These questions arise at once
1t appears that some OF the military com
manders have understood this grant of
power as all-comprehensiye, comforting on
them the power to remove the executive
and judicial officers Of the State, and to
appoint other officers in their places, 10
suspend the legislative power OF the State,
to take under their control, by officers APP
pointed by themselves, the collection and
disbursement of the revenues of the State,
to prohibit the execution of the laws of the
State by the agency of its appointed Off
GERS and agents, to change the existing
laws in matters affecting purely civil and
private rights to suspend OF enJOln the eX-
ecutiOn of judgments and DEGREES OF the
established State courts, to interfere IN the
ordinary administration Of Justice in the
State courts by prescribing new Qualitica-
tons for Jurors, and to change, upon the
ground of eXpediency, the existing rela-
tons OF the parties to contracts giving
protection to one party by violating the
rights OF the other party.
feel confident that these military Off
GERS, in all they have done, have supposed
that they had full warrant for their action.
Their education and training have not been
of the kind to fit them for the delicate and
difficult task of giving construction to SUCH
Il statute as that now under consideration. !
They require instruction, and nearly all OF
them have asked for instruction, to solve |
their own doubts, and to furnish to them
safe ground for the performance OF their
duties.
There can be no doubt as to the rule of
constru ;tion according to which we must
interpret this grant OF power. 1t IS q
grant of power to military authority, over
civil rights and citizens, in time OF peace. /
it is Il new jurisdiction, never granted be- !
fore, by which, IN certain particulars and |
Tor certain purposes, the established prin- |
ciple that the military shall be subordinate !
to the civil authority, is reversed. The |
rule of construction to be applied to such
Grant of power Is thus stated III DlcaTiS on
.>tltldeS page CO., ga statute creating
new jurisdiction ought to be construed
strictly
Guided by this rule, and in the light of
other rules Of reconstruction familiar to
every lawyer, especially of those which
teach Us that in giving construction 70 sin
gle clauses we must look to the context and !
to the whole law that general clauses are
to be controlled by particular clauses, and
that such construction is to be put on q
special clause as to make it harmonic with
The other parts Of the statute, so as to avoid
r.pugnancy | proceed to the construction
Of this part of the act.
To consider, then, in the first place, the
terms of the grant. 1T is ola power to pro-
tcct all persons in their rights of person
and property. It is not power to create
new rights, but only 10 protect those which
exist and are established by the laws under
which these people live. 1t is power to
preserve, not to abrOgate ; to sustain the
tZisting frame of social order and civil rule,
and not power to introduce military rule
III its place. In effect, it is police power,
ton of persons and property against VIC
!eHce, unlawful force, and criminal lntrac
lion. 1t is given to meet the contingency
rccited III the preamble of n want of ''ade- !
puate protection for life and property, " and
the necessity also recited, - that peace and {
good order should be enforced" I
This construction is made more appar-
emit when We look at the immediate context,
and see i'll what mode and by what agency {
this protection is to be secured. This duty
OF power OF protection is to be performed
by the suppression of instruction, disor-
der, and violence, and by the punishment,
either by the agency of the State courts or
by military commissioners, when neces-
slry, of all disturbers of the public peace {
and criminals : and it is declared that all !
interference, under color Of State authori- c
II, with the exercise Of this military author !
ity shall be null and void. i
The next succeeding clause provides for
q speedy trial OF the offender, forbids the :
lnthctiOn OF cruel and unusual punishment, s
and requires that sentences of these mill
tary courts which involve the liberty or life {
Of the accused shall have the approval of l
the commanding general, and as to a SEN
fence OF death, the approval of the Presi- /
dent, before execution. t
All these special provisions have refer 5
cnce to the preservation Of order, and pro- 2
lection against violence and crime They t
touch no other department or function of {
the civil administration, save only its Grim G
lnal jurisdiction, and even as to that the
clear meaning of this act is, that it is not /
to be interfered with 10y the military au- 5
thority, unless when a necessity for such
interference may happen to arise. s
see no authority, nor any shadow of !
authority, for interference with any other I
pr of ioFi no,
inal courts in the exercise Of criminal ju-
rsdiction. The existing civil authority in |
all its other departments, legislative, exc /
cutive, and Judicial, is left untouched a
There is no provision, even under the plea a
Of necessity, to establish, by military au- :
thority, courts or tribunals for the trial of
civil cases, or for the protection of such CT {
vi nights OF person or property as come
within the cognizance of civil courts as con-
tradistinguished from criminal courts. In
point Of fact there was no foundation for
such q grant of mower for the Civil Ri0hts ]