Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1867-06-18
RECONSTRUCTION.

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Powers of the District Commanders
They Cannot Remove civil Offi.
cers-OpiniOn by Attorney General
Stanbery. N Wy NssN;'
- WASHINGTON, June 16.
Attorney General Stanbery's opinion as
to the power OF military commanders, starts
out by recital of the sections, of tie orig
inal act applying thereto! He says: / :,
We see clearly enough that this act con-
templates two distinct Governments IN each
of the ten States-one military, the other
civil, The civil Government is recognized
as existing at the date of the act; the mil
itary Government Is created ny the act
Both are provisional, and, both are to con-
ytinue until new State Constitution is
framed and the States admitted to repre-
sentation in Congress. When that event
takes place, both these provisional Gov
erDments are to cease In contemplation
of this act, the 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 re-
spective jurisdictions. There is, then, an
imperative necessity to define, as clearly as
possible, the line which separates the two
Jurisdictions and the exact scope of the
authority of each. .sou9Isi>2 i's i-ili' '3i1
.Go"Now, as to the civil authority, recog-
rfized by the act as tile provisional civil
government, it covered every department
of civil Jurisdiction in each of these States.
1t had all the characteristics and powers of
a State Governments, Legislative, Judicial
and executive, and was in the full and law
ful exercise of these powers, except only
that it was not entitled to representation
as a State of the Union. This existing
government is not set aside. 1tis recognized
more than once by this act 1t is not in
any one of its departments, nor as to any
mi of re- fin laH< <s~F1 fioA
by this act, save only on the qualifications
of persons eligible to Office, the manner OF
holding elections, and, the mode of franz
ing the Constitution of the State, and the
act does not in any other respect change
the Provisional Government, nor Goes the
act authorize the military authority to
change it. The power of further change
is not granted, and it is reserved to Con-
gress, not delegated to the military COM
mander. Congress was not satisfied with
the organic law, or Constitution under
which the civil Government was estab-
lished., That Constitution was to be
changed in only one particular to make it
acceptable to Congress, and that was in the
matter of the elective franchise. The pur-
pose, the sole object of this act is to effect
that change, and to effect it by the agency
of the people of the State, or such of them as
are made voters by means of the election
provided for in the act, and in the mean
time to preserve order, and punish Offend
ers, if found necessary, by military COM
missions. - 70 ,
We are, therefore, not at loss TO know
what powers were poss by the exist
ing civil authority. The only question is,
what powers are conferred on the military
authority? What remains with the civil
government? We see, first of all, that
each of these States is subject to the mill
tary authority of the United States; not to
the military authority altogether, but
with this express limitation as hereinafter
prescribed. Wemust, 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 or duty to pro-
tect all persons in their rights of person
and property, to suppress insurrection, dis
order and violence, and to punish, or cause
to be punished, all disturbers of the public
peace or criminals; and he may do this by
the agency of the criminal courts of the
State. or, if necessary, he may have resort
to military trials. This comprises all pow-
ers given to the military commander.
Here is general clause, making
it the duty of the military COM
mander to give protection to all
persons in their rights of person and
property, considered by itself, and without
reference to the context and to the provis-
ions of the acts. 1t is liable, from its gen
erality, to be misunderstood. What sort of
protection is here meant? What viola
tions of persons or of rights of persons or
of property are here intended? In what
manner is the protection to be given
These questions arise at once.v 1t appears
that some of the military commanders have
misunderstood this grant of power as all
comprehensive, comforting on them the
power to remove the executive and judicial
officers of the State, and to appoint other
officers in their places; to suspend the leg
islative power of the State TO take under
their control the officers appointed by
themselves, the collection and disburse-
hibit the execution of the laws of the State
by agency of attorneys, appointed officers
and agents; to change existing laws in
matters affecting purely civil and private
rights; to suspend or enjoin the execution
OF judgment and decisions OF the estab-
lished 8 State Courts, to- interfere in
the ordinary administration of justice
in State Courts by prescribing new
qualifications for jurors, and to change
upon the ground of expediency the exist
ing relations of the parties to contracts,
giving protection to one party by viola
ting the rights of the other party. l feel
confident that these military officers in all
they have done have supposed that they
had full warrant for their action. Their
education and training have not been of
the kind to fit them for the delicate and
difficult task of giving construction 10
such statute as that now under consider
alton. They require instruction, and near
ly all of them have asked for Instruction to
solve their own doubts, and to, furnish to
them safeguard for the performance of
their duties. There can be no doubt as to
the rule of construction according to which
we must interpret this grant of power. 1t
is grant of power to military authority
over civil rights of citizens in time of
peace. 1t is a new Jurisdiction never
granted before, by which certain particu-
lars and for certain purposes, the estab-
lished principle that the military shall be
subordinate to the civil authority is re-
yersed; the rule of construction to be ap-
piled to such a grant of power is thus
stated in Dwarris on Statutes, page 652;
statute creating new Jurisdiction, and
ought to be construed strictly.
The Attorney General proceeds to the
construction of various portions of the act.
The act does not give power to confer new
right. but only to protect these which eX-
ist, and are established by the laws under
which these, people live. 1t is power to
preserve, not to abrogate; to sustain the
existing frame of social order and rule, and
not a power to introduce military rule in
its place. 1t is given to meet contin gencies
recited in the preamble of want of adequate
protection for life and property; this duty
or power of protection is to be performed
by the suppression of insurrection, disorder
and violence, &C., and it is declared that all
interference under the State authority in
the exercise of this military authority, shall
be null and void. These special provisions
touch no other department or function of
the civil administration, save only it's crinl
inal Jurisdiction and even as to that, the
clear meaning of this act is that it is not to
interfere with the military unless when