The Union and journal. [volume] (Biddeford, Me.) 1858-1882, 1867-06-21
Opinion Of Attorney General ssaahury OF
the Powers Of Military 0onnandsn.


wAsassoros, Juas la, Attorney Genef~
al Stanbury' s opinion rs to the power Of
military commanders, commences by the
recital or Tho sections Of tho original &C: sp-
plying thereto. lie says:
1--WE see clearly enough that this net
eoniemplsies two distinct governments I'D
each Of those ten States tho one military
and the other civil. The civil government
Is recognized rs existing nj the date OF the
act: both are provisional and both are 10
continue until new State constitution s
framed, and the S,nie 10 admitted to repre-
s-niaiion Ia Congress. When that event
tnkrs place both these provisional govern
,ncn,s arc TO cease. In the contemplation
OF this act. this military authority and this
civil authority are TO be carried on together.
The people in these States will be male
subject To both, and must obey both in their
rrspecti-e jurisdiction. There Is, then, an
imperative necessity to define, ~ clearly n
possible. the line which separates the two
Jurisdictions and the exact scope OF the al.
tl,ority Of each.
Now, ns the civil authority recognized
by the acts Us the provisional civil govern
n,en,. il covered every department OF the
jurisdiction in each OF these States. u had
all the characteristics and powers OF q Snie
government, Legislative, judicial and cxecu.
tive. and was in The full and lawful exercise
Of all these powers except only that Il was
not entitled to representation rs Stats oil
the Union. This existing government IL
not set aside |; il is rccogizcd more than ever
by the net. u is not IN any one Of its de
par,ments or rs to any one Of its functions
repealed or modified by this act ave only
in the qualifications Of persons Eligible to
Office, tho manner Of holding elections and
the mode Of framing the constitution OF the
State. The act does not in any other re-
spect change the provisional government
nor does the oct authorize the military an.
thorities to change il. The power of FUR
Their changing il is reserved. not granted,
and il Is reserved to Congress, not delcga.
tel TO the military commanders /
Congress wins not satisfied with tho or
ganic law or constitution under which the
civil governments were established. That
constitution is To nc changed In only one
particular to make Il acceptable to Con-
grcss, and that was in the matter ofthe cleo
tive franchise. The sole object OF this act
is to affect ], by the agency Of tho people Of
tho State, or such Of them were made vo-
tiers by means Of elective provisions provi.
ded for in the act, nn,l in the mean time to
preserve orler and to punish the Offenders,
if found necessary, by tho military commits
sioners. We are therefore not at q loss TO
know what powers are possessed by the
civil authority. The only question upon
the powers conferred on the military 70.
mains, first oil all. that each OF those States
j. "made subject to tho military authority
of the United States" Aud not to be mil.
itary authority altogether, but with this ex-
press stipulation as thereafter prescribed.
We must then examine what is hereinafter
provided to find the extent and nature OF
the power granted. This, then, Is what is
granted to the military commanders; the
power Of duty 1to protect all persons in
their rights Of person and properly, to sup
press Instruction, disorder aml violence,
and to punish or cause to be punished, all
disturbers Of the public peace aud crimi-
nuls : and he may do this by the agency
Of the criminal courts Of the States; or if
necessary he may have resort 10 tho militia.
~ tribunals IL ,
This comprises all the power given to
military commanders Herr Is general
clause making Il the duty Of the military
commander to give protection to all persons
in their right Of person AMI property. Con.
sidered by itself, and without reference to
the context, and to other provisions Of tho
net, Il 10 liable from il generality to DO mis-.
understood. What sort Of protection u
here meant? what violations Of the rights Of
person or property arc here intended? In
what manner is this protection To DO given?
These questions arise at once.
Il appears that some Of the military coin.
manders have misunderstood this grnnt OF
power. all comprehensive. coniering on
them the power to remove tho executive
and judicial officers Of the State and up.
point other officers to their places, to sis'
rcnd the Legislative power of the State, TO
Jake under their control only officers mp.
pointed by themselves, the collection and
disbursement Of the revenues of the State.
tn prohibit the execution Of the laws Of the
State by the agency OF its appointed OFF,
GERS and agents, tn change Tho existing law
in matters efiscting purely civil and private
rights, to suspend or enjoin the execution
Of the judgments and DEGREES Of tho e.
tnblshcd State Courts, to interfere In the
ordinary administration Of justice In tho
state Courts, by providing new quslifica-
tons for jurors, and to change on the
ground Of cxpe,liency existing. the relations
of the parties to contracts, giving protec'
lion to one party by violating the rights OF
tho other party.
I feel confident that these military 9th
GERS ia NIL they have done, have supposed
they hal full warrant Cor their actions
their education and training. ] have not
been of tho kind to III them for the delicate
anil difficult task Of giving constructions to
s,icha statute as that now made, and near
" all Of them have uskcd for instructions
To solvs their own doubts and to furnish 20
them safe ground for the performance Of
their duties There cnn be no doubt rs to
the rules Of construction. according to
which. we must interpret this grant OF pow
er. Il is grant Of power To the military
authorities over the citizens in time Of pence;
il is a new jurisdiction never granted bc.
fore, by which, in ccrain particulars and
for certain purposes. the established prin-
ciples that the military sl,all be subordinate
To- the civil authorities. is reversed. The
rule Of construction to he applied To such
grant Of power, is such Ms is stated in
D,n,ri's Statutes, page 6S2. a statute
creating new jurisdiction ought to be con.
sirued strictly.
. The Attorney General proceeds to the
consideration OF the various portions ofthe
net. Il does not give power TO create new
rights, but only to protect those which OK.
Isl aud are established by the laws under
which these people live. Il Is power to
preserve, not to abrogate to sustain tho cx
sting force OF local rule, and, not a power
to introduce military rule In its place. II
II given to he at tho contingency rccited In
the preamble. of a want OF adequate pro-
lection for life and property. The duty or
power Of protection TO be performed by |
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