The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1867-06-20
THE NEUTRALITY-SUSPICIOUS. OPINION
ON THE RECONSTRUCTION ACT
ArroasE1.e1sEaA1's orr1on, june IL, 1867.


ON THE RECONSTRUCTION ACT.
-. ATToRNKY-GxNERAL's OFFICE, June H. 1867.
| The Resident: *
sRLOn the oath ultimo had the honor t, transmit
for your consideration my opinion upon some OF the
questions arising under the Reconstruction Acts therein
referred TO- now proceed TO give my opinion on the
remaining questions upon which the military command
ers require Instructions.
AThe original Act reces in its preamble that emo legal
State governments adequate protection for life or
propert exist In those ten States and that cit neces
sary that peace and good order should be enforced In
those States unt loyal and Republican State govern
ments can be legally established" -
FIVE military dsics subject to the military authority OF
the United States Hereinafter prescribed and make
the army general officer to the command Of each dis
tct and to furnish him with military force to perform
his duties and enforce his authority within bis district
The third section declares 'hat shall be the duty Of
each officer assigned aforesaid to protect all persons In
their rights Of person and property to suppress insur
reoon disorder and violence and to punish or cause to
nails and to this end he may allow local civil tribunals
to take jurisdiction OF and try Offenders or when IN his
he shall have power to organize military commissions or
tribunals that purpose; and all interference under
tSority si y under @ this Act shsn be nuil and void
The fourth section provides That all persons put un-
der military arrest by virtue Of thisAct shall be tried
ishment shan be indicted and sentence Of any mill
tary commission OF tribunal hereby authorized affecting
the life or liberty sfan shan ne y sSs Ssc Sn
and the laws and regulations for the OF the
army shall be affected by this Act except in 80 far as
teuce or death Under the provisions of this Act shall be
carried into effect without the approval OF me Pres'
dsnt." Sc = 2,
all elections, well to frame the new Constitution for
each State the elections to be held under the proyi
slonal government until the State Constitution Is
ad byH and
the delegates to frame the new Constitution,
The sixth section provides That until the people Of
Hon in the Congress OF the United staes any civil gov
ernmens which may exist therein shall be deemed pro-
mount authority Of the United States at any time to abol
ish modify, control or supersede the same and In all
elections 70 any office under such provisional govern,
Sa oSess Vi Who ara snisd svoe under The provisions Of
the fifth section of this Act and no person shall be ehg
bic Office under any such prSysions nus
provisions Of the third article Of said constitutional
amendment"
the Supplementary Act rslate altogether to the regstr
on of voters and the elections to be held under the pro-
vsions Of that Act And as to these dutes they are
plainly spnGa in the Act and its not under
stood sSa mt hsretoiuse considered in the
opinion referred TO- has arsen or Is likely to arise In re-
spect to them NY attention. therefore Is dIec.eo 70
1.-THE original Act. gf,''- 81 = - u
see clearly enough that this ACT contempates two
one mihtary the other civil The civil, government is
recognized existing at the date of tho Act The mi
tary Government s created by the Act Both are prov
stuton Is framed and the State Is admitted TO repre-
sentstonin Congress When that event takes place
Contemplation Of this Acf this military authority and
this civil authority are to be carried on together Inc
people in these States made subject to both and must
There is then, an imperative necessity to define as
clearly possbls the ne which separates the two ju-
sdiccns, ind the enact scope Of the authority OF eson
Now Is to the CIVIL authority recognized BY the Act as
the provisional civil gpYernment It covered every De,
partent Of cv jurisdiction IN each Of these States It
had al the characteristics and powers of State Govern
ment Legislative judicial and executive and was in the
u and lawful exercise Of AL these powers except only
that it not entitled to representation as State OF me
Union This exisng government Is not set asdej 1t s
recognized more than once by the At ts not IN any
one Of its departments or 10 any one Of Its functions
repealed or modified by this ACT save only IN ne 2dsM
to Office the manner Of holding elections and the mode
OF framing the Constitution Of the State The Act does
@st nor does the III sutsorse he military authority
to change The power 81 further shsnsns AZ is a ss
delegated to the military commander
Congress was not satisfied with the organic Law or Con-
sttution under which this civil government was essb
shs That Constitution was to BE- changed ony & .hae Sns
was in the matter Of the eec6ye franchise The ppr.
pose the sole object of this Act Is to effect that change
or suSn q them a sss nsds voters by means Of eec
lions provided for in the Act and in the meantime to
preserve order and punish oenders If found necessary
ass. ssssars. Ssa's1sa noss lq s
were possessed by the existing ciyh authority Theonly
y SPsR r. pdsss aSsss 1s
remaina with the civil government 2 l,s.. =
We see, first of ALL that each Of these States made
not to the military authority altogether but with this
express limitation, cas- hereinafter prescribed"
We must them examine what is Hereinafter provided
to find the extent and nature Of the power granted
msnder: The power or duty protect all persons in
q os
be ntshed an dsturbers Of the public pesce and crmi:
nails and be may do this by the agency Of the criminal
Of the State, or If necessary be may have RESORT 70
This comprises all the powers given to the military
commander.
military commander to give protection to all persons IN
ITSELF and without reference to the context and to other
oyaons Of the Act It is liable nom Its generality TO
SWhat sort Of protection il hero p!esnts Whist viola.
e the % i ?, ss e PRs IT to ss
gtvenf These questions arise at once.
Il appears tha some Of the military commanders have
conisrpg on them the power to remove the executive
their Psee sypspd the ssslaSs Is Poses sn
pointed by themselves the collection and disbursement
Of the revenues Of the State to prohibit the 1ecuon Of
e e ss sss II ppSnSa
affecting puselS eiyl md priute rights 70 suspend or
enjon the execution Of judgments and DEGREES Of the
mnistraon Of Justice in tha State Courts yprescrbng
ne for jurors and to change, upon the
ronnd OF e1peency the existing relations OF the par
fsssi confident that these at,ry officers, In all they
DOPE that s;y Taap 5aNs no ,of
besn Of the kind to ht them for the delicate and difficult
task Of giving construction to such statute as that now
nearly al Of them have asked for instruction to solve
thatr own doubts, and to fuah TO them este gyopnd
for the performance Of their duties.
according 10 which must interpret this grant OF pow
"a, is grant ofpoEer 70 military authority over civil
rights and citizens, In time Of peace It's new Jafas
cnars and for certain purposes the pTinc
pe that the military shall be subordinate to the civil au
tho rsyersed The rule Of @ construction 5 m % De sP
o.. stassss page s5S Il statute creating uriadc
uon ought to be construed striatlyn
construction familiar to every lawyer, especially OF those
which teach us that In giving construction to single
clauses We must look 70 the contes. ana 20 s wsoe
special oiaase d to make It harmonic with the other
e. q e
To consider then, in the first place. the terms OF the
grant It ia of power to protect all persons tnelr
aRats Of person and property. It is not power to
create new bgt only to protect those which exist
and established by the laws under which these peo
pie live It iss power to preserve, not TO abrogate to
sustain the existing frame Of social order and civil rule
and not power to introduce military rule in its place
In effect it is police power and the protection here IN
Violence unswful force, and criminal nfracion 1t is
given to meet the contingency rected In the preamble OF
want Of "adsquate protection for life and property
and the necessity also recited "hat peace and good
| order should be enforced"
| This construction is made more apparent when we
look at the immediate context and see In what mode
This duty power preteson is to be performed BY
the suppression Of nsnrrecon, disorder and violence
State Cour @ OF by military commissioners when neces-
sary of ali disurbers of the public peace and criminals
and is declared that all interference under color OF
State authority, with the exercises Of this military au-
i sha he mil nd dyoid