Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1867-06-18
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General 5tanDerfy'B OPINION aS W tho
power Of military commanders starts
out by a recital OF the sections OF the
original act applying thereto. be says
we see clearly enough that this act con-
ten1plstes two distinct governments in
each Of the ten states--the military and
civil. The civil government is reeog-
nized as existing at the date Of the act,
the military government is created by
the act. Both are provisional, and both
are TO continue until new state eonsti-
tuition is formed and the state is admitted
TO representation in congress. When
that event takes place, both these pro-
visional governments are to cease. In
contemplation of this act, this military
authority and the civil authority are
TO be acted on together. The people
in these states are made subject
to both, and must obey both in their
respective Jurisdictions. There is,
then, an imperative necessity 10 define
as clearly as possible the line which sep
arates the two jurisdictions and exact
scope of authority Of each Now, as the
civil authority is recognized by the act
as provisional civil government, it COW
cred every department Of the civil juris-
diction in each of these states, and had
all the characteristics and powers Of
state government, legislation, judicial
and executive, and was in the full and
lawful exercise of all these powers, ex-
cept ouIy that il was not entitled to rep
resentation as state of the union. This
existing government is not set aside. It
is recognized more than once by this act.
1t is not in any of its departments as to
anv one Of its functions, repealed or
modified by this act, save only on the
qualifications of persons eligible TO office,
! the manner of holding elections and the
mode of framing the constitution Of the
states. The act does not in any Otner
/ respect change the provisional gov
| eminent, nor does the act authorize the
| military authorities to change it. The
power of further changing 1t Is reserved,
| not granted, and it is reserved to con-
| gress. not delegated to the military COM
/ mauder. Congress was not satisfied with
/ the organic law or constitution under
which the several governments were es-
| tsblished. That constitution was to be
changed in only one particular, to make
/ ft aeceStabIe to congress, aud that was
/ in the matter OF tde elective franchise
/ for the purpose. The soils Obtset IF the
acts is TO effect that ehange-to effect il
by the agency of the people Of the state,
or such Of them as are made voters by
means of elections provided for in the
act. and in the meantime to preserve
order and punish the offenders, II found
necessary, by military commissions. We
are therefore not at a loss to know what
powers we're possessed by the existing civil
Z authorities the only question Is upon the
powers which are conferred on the mill
tary authorities and those which remain
with the civil government. We see ttrsi
Of al that each of these states is made
subject to the military authority Of the
United States not 60 the Military sH-
tbority altogether, blt with this express
limitation, ashereinafter prescribed. We
must then examine what Is therein
after provided to find the extent and
nature of the power granted. This, then,
il what is granted to the military CON-
manders-power and duty to protect all
persons in their rights of person and
property, to suppress insVrrectiOn, iisor-
der and violence, and TO punish, or cause
to be punished, ali disturbers Of the public
peace and criminals; and they may dc
this by the agency Of the criminal courts
of the state, Or II necessary, be may re-
sort to military trials. This comprises
all the power given to the military COM
manders. There Is q general clause
making it the duty of the military com
mauders to give protection TO all persons
in their rights Of person and property
Considered by itself, and without refer.
epce to the context, and to other provis.
ieDe Of the act, it is liable, from its gen
erality, 90 Ee nigunderstOod. What sort
of protection is heFe aeanti What Yio
latiOn Of rights of person, or Of prop
erty, are here intended9 In what man
ner is this protection TO be RiYen7 Fhesl
questions arise at once. It appears tina
some of the military commanders have
understood this grant Of power, as al
comprehensive, comforting on them thu
Dover to remove the executive and Judi
eiai oficers of the state, and to appoin
other officers in bhaiF piaess-l0 s4spenl
the legislative power of states-tO TAX
uuder their control officers appointed b
themselves for the collection and dis
bursement of the revenue of the state
and to prohibit the execution Of thi
laws Of the s'Ss4e by the agency Of ap
! pointaG E13~deessand agents, and to chang
the existing laws il matters affecting
purely civil and private rights, and &
= 7pend or enjoin the execution Of judg
!, lists and decision of the established
staSe courts, and to interfere in tn
ordinary administration Of justice il
state courts by prescribing new qualifi
cations for jurors, and change, upol
the ground Of eGpeGiepey, the eyistiBi
relations Of the parties to contracts CIV
ing protection to one party, by violating
the rights Of the other party. l fee
confident that these military officers, II
all th,sy have done, have supposed tina
thes -sta full warrant for this action
Their education and training have no
1 a hTsnd to Rt f,arF1 fba dali
cate and DIFFICULT task of giving cpnslrue
tion to such statute as that now unde
consideration. They require instruG
tions, and nearly all of them haya falIei
for instructions to solve their oV ~, A.,
and to furnish to them a safe GU 81 :
the performance of their duties. Their
oan bs pe doubt as to the rule of con
struction, according TO which we mus
, interpret this grant of power to militarl
authority and civil rights, and citizen
in time Of peace. 1t is q new juris
diction never granted before, by which
Ia certain particulars, and for Ger
, tain purposes, the established princi
, ple that military shall be subordinat
to the civil authority Is reserved. Tn
rule of construction to be applied t
such q grant of power is thus stated il
Harris statute, page 262, a statute ere
ating a new Jurisdiction, and ought t
be construed strictly. The attorney gen
eraI proceeds to the construction of va
rious portions of the act. He says tn
, sct does not give power TO confer ney
rights, but only to protect those whicl
exist and are established by laws unde
! which these people live. 1t is a powe
, to preserve, not to abrsgate, to sustail
the existing frame Of social order an
, rule, and not power to introduce mill
tary rule in It's place it is given to NEE
contingencies, recited in the preamble
, of want of adequate protection for hf
, and uroperty. The duty or power @
, protection is to be performed by sup
pressing iasurrectioD, disorder and vic
, ience. etc, and it is declared that all in
|, terfereneeunder state authority in the eX
! ereise of this military authority shall b
! null and void. These special provision
touch no other department or function @
, civil administration, save only It's crimlns
j Jurisdiction, and even as TO that the ciea
: meaning of this act is that it is not to b
interfered with by military authority
unless when necessary fer such lnterteI
ence. 1t may happen to arise that exist
ing civil authority, in all It's other de
q naTtTnents. legislative, executive and iu
ulcIAl, Is fclb uhhouSLSIs =
I rights act and freedmen's bureau bil
J have made ample provisions for the pro
I tecsion of all for merely civil rights
; where the laws or courts OF the state
, might fail to give full and impartial pro
? teefion, L find no authority anywber
' in this act, for the removal, by militar
{ commanders, Of proper officers OF state
} either executive or Judicial, and the ap
= pointment of other persons to thei
: places. Nothing short of an expires
) grant of power would justify a remoVa
! or appointment of such an officer. Their
: is no such grant either expressed or eve
: implied, On the contrary, the az
' cIesrlv enough forbids it. Entitled {
: hold Office, they too have right
q which the military commander is boun
TO respect, not authorized to destroy.
I'll find it impossible, under the provision
! of this act, to comprehend such an off
: cial as q governor of one OF these state
!. | annotated to Office by one of these mil
!, tsrv commanders. The law takes q
= eoenizance of such an Official, and he
: clothed with no authority or color {
: authority. What is true as to governor
= is equally true as to all the other les
!. islative, executive and judicial officel
e of the state. Certainly the act is viz
!. orous enough in power, which It give
q WITH ali its seventies. The rigf
# of electing their own officers is still ls