Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1867-06-18

berry a. 10 the Powers of Military
COmmanders-CfyiI Government fn
the South not Set Aside-MiiitRry
Removals not Approved.
WASHINGTON, June 3.-Attorney- Gene
raj Stanberry's opinion as TO the power of
military commanders, started out by a re-
cital Of the sections of the original act APP
plying thereto. lie says: We see clearly
enough that this act contemplates two dis
tinct governments in each Of the ten States
one the military, the other the civil.
The civil government is recognized as ex
isting at date Of the act the military gov
ernment is created by the act. Both are
provisional, and both are to continue until
q new State constitution is framed, and the
State is admitted 10 representation ia Con-
| gress. When that event takes place, both
these provisional governments are TO cease.
In contemplation of this act, this military
authority and this civil authority are TO be
acted on together. The people in these
States are subject 10 both and must obey
both in their respective Jurisdictions. There
| is, then, an imperative necessity to define
as clearly az possible the line which sep
arates the two Jurisdictions, and the exact
scope Of authority of each.
Now, as to the civil authority recognized
| by the act as to the provisional civil gov
ernment, ii covered every department of
| civil jurisdiction in each Of these States it
had all the characteristics and powers of a
State government, legislative, judicial and
executive, and was in the field, and had
! lawful exercise Of all these powers except
only that it was not entitled to represen-
tation as a State of the Union This exist
ing government is not set aside. 1t is re-
! cOgniZed more than once by this act 1t is
not in any one of its departments, or as to
any one of its functions, repealed or modi-
| fed by this act, save only in the quail
| hcations of persons eligible to office, the
manner Of holding elections and the mode
| Of framing the constitutions Of the States.
| The actdoes not in any other respect change
| the provisional government, nor does the
act authorize the military authorities TO
change it, The power of further changing
it is reserved, not granted, and it is re-
served to Congress, not delegated to the
military commander.
Congress was not satisfied with the or
ganic law as the constitution under which
the several governments were established.
| That the constitution was 10 be changed in
only one particular, to make it acceptable
to Congress, and that was in the matter of
the elective franchise. The purpose and
the sole object of these acts is to effect a
change, and TO effect it through the agency
of the people Of the State, or such of them
as are made voters by means of elections
| provided for with the act, and in the
meantime to preserve order and punish
offenders, if found necessary, by military
commissions. We are therefore not at a
loss TO know what powers were possessed
by existing civil authority. The only
question is upon powers which are con-
felred on the military authority, remains
with the civil government.
We see first of all that each of these
States are made subject to the military au-
thority of the United States not TO the
military authority altogether, but with this
express Limitation as hereinafter prescribed
We must, then, examine what is there
inafter provided TO find the extent and ma
ture of the power granted. This, then, is
what is granted to the military command
ers The power or duty 20 protect all per
sons in their rights of persons and pro
perty; TO suppress insurrectlOn, disorders
and violence, and to punish, or cause TO be
punished, all disturbers of the public peace,
and criminals, and he may do this by the
agency Of the Criminal Courts Of the States
and if necessary he may have resort tc
military trials.
This comprises all the powers given tc
the military commander.
Here is a general clause, making il the
duty Of the military commander TO give
protection to all persons in their rights o.
person and property, which, considered 10y
itself and without reference to the context
and TO other provisions of the act, is liable
from its generality to be misunderstood
What sort of protection il here meant
What violations Of the rights of persons OF
of property is here intended In what
manner is this protection to be given
These questions arise at once. 1t appear.
that some Of the military commanders have
misunderstood this grant Of power as al
comprehensive, comforting on them th'
power TO remove the executive and judicia
officers Of the State, and TO appoint othel
officers in their places; TO suppend thu
legislative power of the State to take unde
their control the officers appointed by them
selves for the collection and disbursement
Of the revenue of the State to prohibit tn,
execution of the laws of the State by tn
agency Of appointed officers and agents {,
change existing laws in matters affecting
purely civil and private rights, to suspen,
or enjoin the execution of judgments an,
decisions of the established State courts
to interfere in the ordinary administration
of Justice in the State courts by prescribing
new qualifications for jurors, and chang
upon the ground of eKpediency the existing
relations OF the parties to contracts, givin
protection to one party by violating tn
rights Of the other party.
feel confident that these militar
officers in all they have done have sup
posed that they had full warrant for thei
action. Their education and training hav,
! not been of the Kind to tit them for tn,
delicate and difficult task Of giving con
struClion 10 such a statute as that nol
under consideration. They require instruc
tion and nearly all Of them have asked 70
instruction 10 solve their own doubts an
TO furnish 10 them a safe ground for tn
| Performance of their duties.
There can be no doubt as to the rule G
construction, according 10 which We mus
interpret this grant of power IL is gran
Of power to the military authority over tn
civil rights of citizens in time of peace.
is q new Jurisdiction never granted before
bv which in certain particulars and certai
purposes the established principle that tn
military shall be subordinate 10 the civi
} authority, is reversed. The rule Of con
struction 10 be applied to such a grant c
power is thus stated in the digest statute