New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1867-06-17
sTANBERRY's OPINION.
HE REGARDS THE MILITARY IN THE SOUTH
AS MERELY A POLICE FORCE.

OPINION OF THE ATTORNEY-GENERAL AS TO THE
POWERS OF THE MILITARY COMMANDERS, AND
SUMMARY OF THE QUALIFICATIONS OF VOTERS.
ATTORNEY GENERALS OFFICE, June II, 1857.
THE PREsIDENT-SIR: On the 9th ultimo had
the honor to transmit for your consideration my opinion
upon Of the questions arising under the reconstruc
ton acts therein referred to- proceed 10 give my
opinion the remaining questions, upon which the mill
tary commanders require instructions First as to the
powers and duties Of these commanders. The original
act recites in its preamble that ono legal State Govern
ments adequate protection for life property exist
in those ten States and that 1T necessary that peace
and good order should be enforced" in those States
Ill loyal and republican State Governments illegally
established" The first and second sections divide
these States into five military districts subject to
the military authority Of tho United States
hereinafter prescribed and make 1.-THE duty Pre
dent to assign from the officers of the army, general
officer the command Of each district and TO furnish
him with military force to perform his duties and
force his authority within his district The third section
declares That it shall be the duty Of each officer as
signed aforesaid TO protect all persons their rights
of person and property to suppress nsnrrecon, dis
order, aud violence and to punish TO be
punished all dsturbers of the public peace and criminals
and to this end he may allow local civil tribunals TO take
Jurisdiction of and try offenders, or, when in his udg
men 1t may be necessary for the trial Of offenders he
shall have power to organize military commissions r
bunas for that purposes and all interference under color
Of State authority with the exercise Of mill
tary authority under tins act shall be null and void"
The fourth section provides That all persons put under
military arrest by virtue Of this shall be tried without
unnecessary delay and cruel unusual punishment
shall be infIced and sentence OF any military
mission tribunal hereby authorized, affecting the life
liberty Of any person. shall be executed until 1t Is ap
proved by the ocerIn of the district and the
laws and regulations for the government Of the army
shall not be affected by this act except in far they
Of death under the provisions of this act shall be
carried into effect without the approval OF the
President" The fifth section declares that the
qualification Of voters In all elections well TO frame
the new Constitution for each State in the cleo
tons to be held under the Provisional Government until
the new State Constitution is ratified by Congress, and
fixes the qualifications OF the delegates to frame the
new Constitution The sixth section provides THAT
W the people O said Rebel States shall be by law admitted
TO IN the Congress OF te United states
a s ne fae s ay @s TIC
abolish modify control upersede the same and IN all
elections to any office under such provisional govern
Others who are entitled to vote under the provisions of
the NTH section Of this act 9ndno person shall eligible
to any office under such PROVISIONAL governments
who would be disqualified from holding Office
under the provisions of the third article OF
said Constitutional Amendment. The duties devoved
lIpoa the Commanding General by the supplementary
act relate altogether to the registration OF voters and the
elections be held under the provisions OF that act
and as to these they plainly enough expressed
in the act aud It is not understood that question not
heretofore considered In the opinion referred TO, has
arisen is likely arise la respect to them My atten-
on therefore IS directed 10 the powers and duties OF the
military commanders under the original act We see
clearly enough that this act eontempates two distinct
Governments in each Of these ten States the one military
the other civil The civil Government Is recognized rs
existing at the date OF the act The military Govern
ment is created by the act Both are provisional,
and both arezt to continue until the new state
| Constitution framed and the state Is
admitted TO representation in Congress. When that
event takes place. both these provisional governments
cease. In contemplation OF this act TINS military
toStef The peopie i'm these states are made subject TO
BOTH aud obey both. In their respective urtstie-
as clearly pessble the line which separates the two
iur,siie tons and the eSaes score OF me authority o.
the provisional civil government covered every
department OF civil Jurisdiction IN each OF these states
II had ali the teristics and powers OF state
Government legislative. judicial and executive and was
in the full and lawful exercise Of all these powers except
only that not entitled 10 representation as State
of the Union This existing government Is not set aside
recognized than by the act IL is not In
/ any one of its departments, or to any one
| Of its functions, repealed or modified by TINS
| act, save Only In the qualifications OF voters,
| the qualifications OF persons eligible 20 office,
the Of holding elections and the mode of framing
the constitution OF state The act does not ID any
other respect change the provisional government nor
does the act authorize the military authority 70 ehan GO
II. The power OF further changing t Is reserved ioS
granted and 1t Is reserved TO Congress not delegated
to the military commander Congress was not sas nea
with the organic law or constitution, nhuer WHEN MIS-
civil government established That constitution was
10 be changed in only one particular To make accept
able 10 Congress and that in the matter Of the elect
i've franchise The purpose the sole object OF tins act IS
to effect that change and to effect by the agency OF the
by OF elections provided FOR IN the act and IN the
o sanne If found necessary by military
We are, therefore. not at loss 70 KNOW VIVA. poWeiIs
onesfon e. upon the powers conferred the military
authority Whatever power not given to the military,
tbat each If these states is made subject to the military
authority of the United States'ot 10 the military au
bepeoStep prescribed" We must then exaluine what
Is Hereinafter provided nd the extent and nature OF
the power granted This then. is what is granted TO the
military commander: the power duty 10 protect all
persons their rights OF person and property to suppress
70 Inc punished ali dsurbers the public peace and
criminals and he may do tins by the agency of the Grim
I I 70 military tribunals This comprises all the
powers given to the military commander Here IA a
andcr TO give protection all persons in their rights OF
person and property Considered by ITSELF ana wlthons
reference 10 the and to other provisions OF the
act is liable from It's generality TO %
What sort Of protection is here meahtI Nhat NoVns
OF the rights Of persons, OF property are here IN
tended In what manner Is this protection 10 DC glVeht
These questions arise at once ~ appears tnat SVie
| grant of power all-comprehensive, confer
ring them the power to remove inc exec,
10 appoint other officers In their places TO suspend the
legislative power OF the state 70 iake uer eear S
disbursement Of the revenues OF the state TO prOhpt inc
execution OF the laws Of the State by the agency Of APP
pointed officers and agents. to change the existing laws
In matters affecting purely elyl ana private Fights, 70
erces Of the established State courts to tci4ercn the
ordinary administration Of Justice I'm the state courts by
prescribing ne qualifications for jurors and to change
pon the ground expedlency the existing relations Of
the parties contracts giving protection 20 one party by
Violating the rights OF the other party feel confident
supposed that they had full warrant for Their Their
! action Their education and training nave
not becn OF the kind to ut them for the
delicate and difficult task of giving construction 10 sncn
statute as that now under Consideration They require
instruction and nearly ali Of them have asked Tor III
structon TO solve their own doubts, and te furnish 70
them safe ground for the performance OF Their duties
There can be no doubt to the rule OF construction
according TO which must interpret tins grant OF power
III is grant of power To military authority, over evli
rights and citizens In time OF peace IL isa new lui1sdic
on never granted before, by which, in certain Ile
lars and for certain purposes the estapnsed plhcpe
thaL ti.e military shal be extraordinarily 70 the evll