The south-western. [volume] (Shreveport, La.) 1852-1870, 1867-07-03
The Reconstruction Act.
ATTORNEY GENERAL sian BERrs OPINION.


Washington, June II.
70 the Pfesiaent: sir-On tie Gath uitimo had the
honor to transmit for your consideration my epnoh
on some of the questions arising under the reconstrue
ton acts therein referred to. now proceed to give
nv opinion the remaining questions upon when tue
military commanders require instructions. First, ls
to the powers and duties Of these commanders Ihe
original act rectes in its preamble that no legal state
governments Or adequate protection Tor HE or
exists IN those ten States, and that - Is necessary s
peace and good order should be enforced IN those
States until loyal and republican State governments
can be legally established The first and second sec
tons divide these States ato fTe military assrels
subject to the military authority Of the United States
as hereinafter prescribed, and make u the aut VI W
President assign from the officers OF the army regl
mental officer to the command of each district ana 90
furnish him with military force to perform MS daTes
and enforce his authority within his district. Ine
third section declares that it shall be the duty q ea
officer assigned aforesaid to protect all persons ~
their rights and property to suppress nsuI
rection disorder and violence and to punlsh OF CAUSE
to be punished all disurbers Of the pubic peace anu
criminals and this end he may allow local civil III
bunals to take jurisdiction OF and try oHeEaefs e
shall have power to organise military commissions ~
tribunals for that purpose and all nteriefece aar
authority under this act shall be null ana Fola. me
fourth section provides that all persons put under NIL
itary arrest by virtue Of this act shall be tired without
unnecessary delay and cruel orunnecessary punish
ment shall be inflicted, and no sentence OF any Inl-
tarv commission tribunal hereby authorised affect
ing the life or liberty of any person shall be executed
until is approved by the officer IN command OF the
district and the laws and regulations for the govern
ent of the army shall not be affected by tins act, eX
cept in far they conflict with it's provisions Fro
vded that no sentence of death under the provisions
of this act shall be carried into effect without the ap-
prevail of the President The fifth section declares the
qualifications of in all elections, well as to
frame the constitution for each State as in cleo
tons to be held under the provisional government I'M
til the State constitution is ratified by Congress-
and also fixes the qualifications OF the delegates to
frame the new constitution The sixth section pro-
vdes that until the people of said rebel States shall be
by law admitted to representation in the Congress OF
the United States, any civil governments which may
exist therein shall be deemed provisional only and in
all respects subject to the paramount authority OF the
United States at any time to abolish, modify, conro
or supersede the same and in all elections to any Of
flee under such provisional governments no person
shall participate who would be disqualified from hold
ing office under the provisions of the third article Of
the said constitutional amendment.
TWO DISTINCT GOVERNMENTS.
| The duties devolyed upon the commanding general
by the supplementary act relate altogether to the
gistraton of voters and the elections to be held under
the provisions ofthat act and to these duties they
plainly enough expressed in the act, and 1T is not
understood that any question not heretofore consd
cred in the opinion referred to has alisen or is likely
to arise in respect to them. Ny attention, therefore,
is directed to the powers and duties of the military
commanders under the original act.
We clearly enough that this act contemplates two
distinct governments in each of these ten States, the
one military the other civil. The civil government is
recognised existing at the date OF the act. The mil
| itary government is created by the act.
Both are provisional, and both are to continue until
the new State constitution is framed and the State is
admitted to representation in Congress. When that
takes place both these provisional governments to
cease In contemplation of this act, this military au
thority and this civil authority to be carried on
together The people in these States made subject
to both and must obey both in their respective uris
dction There is, then, an imperative necessity to de-
fine as clearly possible the line which separates the
two jurisdictions, and the exact scope OF the authority
of each.
THE PREVIOUS POSITION.
New as to the civil authority recognised by the act
the provisional civil government 1t covered every
department of civil jurisdiction in each of these States
It had all the characteristics and powers of State gov
ernment-legislative judicial and executiYe-and was
in the full and lawful exercise of all these powers, ex
cept only that it was not entitled to representation as
State of the Union. This existing government not
set aside it is recognised than once by the act
1t is not in any of its departments as to any one Of
its functofs repealed or modified BY this act save on
ly in the qualification of voters, the qualifications of
persons eligible to office, the of holding cleo
fions and the mode of framing the constitution of the
State. This act does not IN any other respect change
the provisional government, Goes the act author
Use the military authority to change It, The power to
further change it reserved not granted and it IS re-
served to Congress, not delegated to the military COM
mander Congress was not satisfied with the organic
law constitution, under which the civil government
was established that constitution was to- be changed
in onlv one particular to make it acceptable to Con-
gress and that in the matter Of the elective fran
chse The purpose, the sole object of this was to eff
feet that change and to effect by the agency of the
by means of elections provided for in the act and in
the meantime, to preserve order and to punish offend
ers, if found necessary, by military commissions.
NEW JURISDICTION.
There be doubt to the rule of consructo on,
according to which must interpret this grant of
power. 1t is grant of power in military authority
over civil rights and citizens in time Of peace It IS
jurisdiction, never granted before, by which in
certain particulars and certain purposes the estab-
shed principle chat 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 in Dwarris Statutes, page
652 statute creating new jurisdiction ought to
be constructed strictly. Guided by this rule, and in
the light of other rules of construction familiar to ey
cry lawyer especially of those which teach that in
giving construction to single clause, we must look to
the context and to the whole law that general clauses
are be controlled by particular clauses and that such
construction is to be put special clause as to make
in harmonise with the other parts of the statute so as
to avoid repugnancy, proceed to the construction OF
the act. To consider, then, in the next place, the
terms of the grant 1t is ola power to protect all per
in their rights of person and property 1t is not
power to create rights but only to protect those
which exist and established by the laws under
which these people live. It's power to preserve not
to abrogate 70 sustain the existing frame of social or
der and civil rule and not power to introduce mill
tary rule in its place. In effect it is police power,
and the protection here intended is protection of per-
and property against violence, unlawful force and
criminal infracton It's given to meet the contingent
cy recited in the preamble, OF want OF adequate pro-
lection OF life and property and the necessity, as re-
cited that peace is made 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 power of protection is to be performed by the
by the punishment either by the agency of the State
courts by military courts, when necessary, of all
llsturbers the public peace and crlnnals and it
declared that all interference under color of State
hority with the exercise of this authority, shall be
null and void.
EXTENT AUTHORITY.
The next succeeding clause provides for speedy
trial of the offender forbds the infection of cruel pun
shmen and requires that sentences of these military
courts which involve the liberty life OF the accused,
shall have the approval of the commanding general
and sentence of DEATH the approval of the Pres
ident before execution. We are, therefore, not at
loss to know what powers were possessed by the ex
stng civil authority. The only question is upon the
powers conferred the military authority. What
ever power is not given to the military remains with
the civil government.
We see first of all. that each of these States are
made ubject to the military authority of the United
States not to the military authority altogether, but
with this express limitation hereinafter prescribed
We must then examine what is hereinafter provided
to find the extent and nature of the power granted
This then, is what is granted to the military COM
mandcr the poweror duty to protect all persons in
their rights person and property to suppress insur
recton, disorder and violence and to punish cause
to be punished, all dsturbers 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
general clause making it the duty of the military
commander to give protection to all persons in their
rights ofperson and property.