The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1867-06-20
THE ATTORNEY-GENEnAL OPINION
ON TIE RECONsTRUCTIoH ACT.
Arronsrr.arsEn,1.s ory,or. Juno 70 ,ec1.

ATToRsEr.GEsEnsL's OFFICE, juno 10, 1867.
sIR-on tho oath ultino had the honor /, transmit
lor your consideration my opinion upon Of tho
questions arising under Tho decentralization Acts therein
rcualnns questions upon which tho military command.
ers require Instructions.
Frss. as TO tho rowcrs and duties OF teso commanders
SThe original Act rcccs In It's preamble that legal
snse governmental or adequate protection for life
sary TINT peace and good lcr should be enforced" In
those States until loyal and Republican State govern
Tho nrst and second sections divide tcso States into
vo military disttcts subject to the military authority Of
the duty Of tho President TO assign fom ti,o ofcers OF
tho arnya general officer to command OF each dis.
lls duties and enforce his authority within his district
Tho shr section declares "1hat eal DO the duty Of
esch oser assigned ns aforesaid to protect all
thes rights Of person and property, to suppress
5rction disorder md violence mud TO punls or cause 10
nails. and TO this cnd ho may allow local civil tribunals
TO take Jurisdiction OF md Try oondcrs or when 10 his
e shall have power to organize military commissions or
srSnna's for that pSrpose; and oil Interference under
coor oi State authority with tho exercise military al,-
thoIity nnler thus Act shall DO null aud void.
Tho fourth section provides That all personH put
without unnecessary delay, md cruul unusual pun.
sment shall be inicted ami sentence of any mill.
ary commission or tribunal hereby authorized affecting
e q o or liberty Of any porson. shall be executed until
Is approved by tho officer In command of the dicirict
ana thu Laws and regulations for tho govct the
army shall not be affected by this Act except In so ar as
sS coPsst OF with Its IS o%a That
carried Into effect without Tho approval the PreaI-
Tho h section declares tho qualification of voters In
all elections, ns well to frame tho Constitution for
sS state as In the elections TO bo held undor the
Ttsd M by Congress and aisn f1es The qualifications Of
Tho sixth section provides That until the peopo Of
said rebel States shall bo by law admitted 10 reprcscnta
ernmrnts which may oxiat therein alla be deemed PRO
SnonaI ohy, and in nl "p"cts subject to tho para
ish. modify control su- re.. iio samo and ii, oil
elections to any oice under provisional govern.
others who entitled yoto undor tle provisions OF
to nth section OF thta Act al person Rhal be rli
who would DO diaqnaiiac from oidinG OisS undep the
provisions oi tho hirl article of said constitutional
The duties deyolvcd upon tho commanding EonenI by
INC supplementary Act relate alto; ether 70 tho rcgsr
Visions OF that Act. And 10 these duties they arc
plainly enough expressed In the Act md II In not
stood thnt anT question not heretofore considered In
opinion referred TO, has nrsen likely to arisc In ro
spcct TO them. My attention, therefore, Is directed 10
INC power. and duties Of tho militar, commander under
wc see clearly enough that This conempatca two
ono military, the other civil Tic civil government
recognized ns existing NJ tho dnte OF tho Act The MILL
siona and both continue until the now State Con
ssitution is framed mud the State is admitted to rcpr-
both thcae provisional governments to cease In
contemplation Of this Act, this military authority aud
people In these States subject BOTH and must
o6ey both I'm their respective Jurisdictions.
Thon IT, then, an imperative necessity to deAnc,
clearly possible. the limo which separates the two u
risdiciions aud tho exact scope OF tho authority
tho provisional civil government il covered every de-
partment Of civil Jurisdiction each or these States
meu, legislative judicial md executive and was In ihe
i and lawful exercise OF all cso powers except only
Union. This existing government Is not sct naidc IL is
recognized more than once by Tho Act It Ii not in any
repealed modified by tis Act savo only In tho quail
fcoons OF yoers, tho qualifications persons eligible
OF framing tho Constitution OF the State Tho Act does
not In any other respect change the provisional govern
to change It The power furhor changing Il is re-
served not granted md it ia reserved to Congress not
Congress not saaaed with the organic Law OF Con-
etItution under which this civil government was esnb
particular to make 1t acceptable to Congress, nn that
was In the matter Of the elective franchise Tie pur
aud to effect Il by tho AGENCY of the people Of state
~, aush Of hen ns are made volnrs BY means Of cleo
preserve order and punish Offenders II found necessary
by military commissions. =,
possessed by tho existing civil authority
Question s upon the powers conferred on tho military
remains with tho civil government
We soc, first OF oil, TINT each Of these States is made
not to the military authority altogether but With thia
express limitation, "as hercinsftcr prescribed"
to nnd The extent and nature Of tho power gran;cd .
This then Is what ts granted TO tho military com.
their rights Of porson and properly to suppress insur
con disorder and VIOLENCE and % punish, cause to
nails. and ho may do this by the agency Of tho criminal
courts Of the s,tc or II necessary hc have resort 10
This comprises all the powers given to the military
commander.
military comuander to gvo protection to persons In
c and sop % sna
proydOns Of the Act It Iablo nom It's generality to
DO tnlsunderstood.
ions Of the rights Of Of popers sIo tS here
intended2 In what mnnner is this protection 10 be
gtren7 These questions nrise at once.
1t appears tha some OF Tic military commanders havo
andersiood ths grant ot power as all-comprohensye
ana 70 spSon sp oee
officers IN their places to uspend the legisatye power
pointed by themselves the collection and disbursement
Of the revenues Of the Stso to prohibit the
GERS and agents. 10 Change te cIsDe al aWs In @nters
affecting purely civil and private rights. TO suspend
established State Courts to interfere In the Ordinary ad
minfstaon Justice In the State Courts by prescribing
esns 70 o. SSo sne
aes 70 giving protection to ono party by viola
feel confident that these mit,ry officers in al they
ayo done have supposed that thoy had full warrant for
their action Their education and training have not
been OF the kind 10 6t hom for tho decstn and difficult
tasf OF giving construction 10 such statute that
undor consideration. They require instruction, and
nearly all OF tho hayo asked for Instruction TO soiys
their own doubts and TO flrnish to them saio ground
for the performance of their duties.
There can be no doubt to tho ruo Of construction
according to which We must this grant OF pow
It Is grant Of power 10 military authority over civil
rights and czcns in time Of peace II is now juris-
dicon never granted bofore by WHICH, In certain par
tcuare and for certain purposes tho established princ
lle that the military sha be subordinate the civil au,
thor,ty s resersed Tho rule Of eonstrpcton to bc
pa sS se gsn q y illus sss1 in
tinn ought TO be construed strictly"
ande1 by s rule and In the Light Of other rules Of
which teach US hat IN giving construction to ainslo
clauses wo must look TO the context and tho whole
law that general clauses to be controlled by parcu.
special clause to mako it harmonze with tie other
parts OF tho STATUTE 10 avoid ropugnanoy proceed
to the construction Of this part OF heAcL
To consider then, In tho first place. the terms Of tho
rights Of person and property. It Is not q power 70
create rghts but only to protect those which eIst
and arc established by tho laws under which heso poo
pic i've Hisa power to preserve not to abrogate;
and not powur to Introduce military rulo In lis place
In effect Il s police power and the protection here In.
tonled, protection OF and property against
violence, unlawful force, and criminal infracton. Ia
want Of adequate projection for life and properly
and the necessity also recited. "that peace and good
| order should bo enforced" -
This coEttsrction fs nude moro apparent whom we
look at tho immediate context and In what mode
and by what agency, this projection 70 TO be secured.
This duty or poTor OF projection Is 10 be performed by
tho suppression OF Instruction, disorder and violence
ana ey Tho punl'hhmsnt I'm either BY ho agoLcy Of tho
sary, OF all disturbcrs OF tho public peaco md cri nas;
and Ia declared that all lnterforenco under color
State authority, with the exercises Of this military ai.
thority, shall DO null and void. Tf'
I'M nic tow