The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1867-06-17
RECONSTRUCTION.
The Powers OF the Military
Commanders.
Opinion of Attorney General
Stanbery.

Remove Executive or Judicial Onieers,
or TO Appoint Persons In
Their Places.
ATTORNEY GENERALS OFFICE June ~, 1851
10 PRESIDENT
sm-On the oath ultimo had the honor 10 transmit
for your consideration my opinion upon OF tho
questions arising under tho reconstruction acts therein
referred TO- now proceed TO give my opinion on the
remaining questions upon which the military command
require Instructions
First the powers and duties Of these command
The original act rectes in its preamble that mo
legal State governments adequate protection for life
property exist" in those ten States and that ait is
necessary peace good order should enforced"
those States 'un loyal and republican stale govern
nents can be legally estabiished''
The divide these States into
Ave military districts subject TO the military authority
the United States as hereinafter prescribed, and
make the duty Of the President to assign from the
officers Of the army general officer TO tho command Of
each district and 70 furnish him with military force TO
perform duties and enforce his authority within his
district
The third section declares "That II shall be the duty
Of assigned aforesaid protect all persons
rights OF person and property suppress insur
yection disorder and violence and punish,
terminals and TO this end he may allow local civil tri
bnnals Jurisdiction Of and try offenders when
IN his Judgment may be necessary for the trial Of Of
TENDERS, he shall have power TO organize military commits
eions tribunals for that purpose and all interference
under color Of State authority with the exercise Of mill
tary authority under this act shall be null and void"
The fourth section provides That all persons put
sder mray by virtue Of this act shall be tried
without unnecessary delay, and no cruel or unusual
punishment shall be inflicted and sentence OF any
military commission or tribunal hereby authorized, af-
Hecting the life or liberty OF any person. shall De exc
cued until is approved by the officer in command Of
the district the laws and regulations for the govern
ment of the army shall not be affected by this act ex
cept In so far they conflict with its provisions; Pro.
vded that death under the provisions OF
this shall be carried effect without the approval
of the President :"
The fifth section declares the qualification Of voters in
all elections well frame the constitution for
each State in the elections TO be held under the
vsonal government until the new State constitution is
ratified by Congress, and also fixes the qualifications Of
the delegates to frame the new constitution
The sixth section provides 'That until the people OF
said rebel States shall be by law admitted To repreaena
the Congress Of the United States any civil gov
ernmen,s which may exist therein shall be deemed pro-
mount authority of the United States any time abol
ish, modify CONTROL supersedc the same and In all
elections TO any office under such provisional govern
ments all persons shall be entitled to vote and none
Others who entitled to vote under the provisions Of
.n seC%n o. ,ns ao anu c No "c
ments who would be disqualified from holding Office
under the provisions Of the third article OF said consttu
tional amendment"
The duties devolved upon commanding general by
she supplementary act relate altogether TO the registra
iion Of voters and the elections held under the
provisions OF that act And TO these duties they are
plainly enough expressed in the act, and II 10 not un
erstod that any question heretofore considered
tho opinion referred has arisen likely in
respect them Ny attention, therefore, directed TO
she powors and duties the military commanders under
tho original act We see clearly enough that this act
conemplaes distinct governments in each OF these
zen ssates.the one military the other csil The civil
act The military government Is created BY the act
Both PROVISIONAL and both are 70 continue until the
United representation In Congress Whom that event
takes place both these provisional governments are TO
authority and this civil authority to be carried on
togeiher people these States made subject
spoc. T""' ,ur rise There is then, an i'm.
peratve necessity TO define as clearly as pos
sbe the line which separates the two Jurisdictions and
the scope Of the authority Of each Now 70 the
civil authority recognized by the net as the provisional
civil covered every men o. cgn
and powers Of State government legis
lave Judicial and executive, and was In the full and
not entitled to representation State Of the
Union This existing government Is not set aside is
recognized more than once BY the act Is not in any
Of depaztmln to any OF its functions
repealed modin( BY this act, save only in the quail
S ss SS.s 81 sna The %sS
OF framing the con6tuton Of the State The act does
not in any other respect change the provisional govern
shortly to change IT, The power OF further changing
u 10 reserved, not granted, and IT is re.
s,rved 70 Congress- not delegated TO the military
commander Congress not satisfied with the organic
law constitution, under which this civil government
was established That constitution was to be changed
in only one particular to acceptable 10 Congress-
and that in the matter OF the elective franchise
The purpose the sole object OF this act is TO effect that
change and TO OBJECT BY the agency Of the people OF
shc State such OF them are made voters by means
o. o ap N one .ne
necessary, by military commissions. We are therefore,
not at loss 70 know what powers were possessed by
the powers conferred the military authority WHAT
power is not given to the military remains with the
these States is made subject 70 the military authority
Of the United Staee'not 10 the military authority
Ssre sss prescrSsd.S ". must then, EXAMINE
what 10 hereinafter provided. 70 md the extent
rSs. Srsn.ed 10 the military COMMANDER The power
duty Ito protect all persons In their rights Of person
and property 70 suppress instruction disorder and
surberp Of the public peace and criminals. and he may
do this BY the agency Of the criminal courts Of the State
oaia This comprises al the powers given the mill
cary commander Here e general clause making IL
20 ali persons in their rights Of person and property
Considered by ITSELF and without reference 70 the con-
s. and 70 other o. t1s ae ws,s ae s from
sscton 10 here msants what violations Of the rights Of
psrsons or Of properly are here ine.asas In What
arse 81 once. II appears that some OF the military
commanders understood this grant Of power a. all
comprehensive comforting them the power 10 remove
ths executive and judicial ofnccp OF the State, and
20 appoint other officers In their places, 70 suspend the
Legislative power Of the State, 70 ake under their con-
troll by officers appointed by themselves the collection
disbursement OF the revenues OF the State 70 pro-
Abi, the execution Of the laws Of the State by the
agency Of rs appointed oicers and asents 70 change
the existing laws In matters affecting purely civil and
private rgh 20 suspend or snom the exsnusos o. the
20 interfere in the ordinary administration Of justice in
the State courts BY prescribing new QUALIFICATIONS for
sHA Asf xitsuAr
the existing rotations Of the parties 70 contracts giving
protection 70 one party BY violating the rights Of the
other psrty feel confident that these military OH.
css in ali they have done, have supposed that tney had
Sun for their action Their educasoa and usn
ing not been Of the kind 70 ~ them for
ahe delicate and difhcut task OF giving con-
basucuon 70 such . statute - that new under