The south-western. [volume] (Shreveport, La.) 1852-1870, 1867-07-03


vas no foundation for such grant OF powers TOT Lhe
civil rights act and the reedmens bureau act neither
Of which is superseded by this act made ample proyi
sion for the protection Of all merely civil rights where
the laws or courts of these States might fail TO give
fall and impartial protection.
ind no authority anywhere in this act for the reno
val bT the military commander Of the proper officers OF
State, either executive or judicial or the appointment
Of persons their places. Nothing short OF
grant of power would justify the removal or the APP
pointlnent Of such officer There is no such grant
expressed or implied. On the contrary, the act
clearly enough orbids il. The regular State officials,
duly elected and qualified, are entitled hold their
Offices They too, have rights, which the military
commander is bound to protect and not authorised to
We find ID the concluding clause of the ixth section
of the that thes officials recognised and express
provision is made TO perpetuate them. 1t is enacted
that all elections to any office under such
governments all persons shall be entitled to vote, and
none Others who entitled to vote under the provi
sions Of the fifth section Of this act and no person
shall be eligible to any office under such provisional
governments who would be disqualified from holding
office under the provisions Of this act This provision
not only recognises all the officers of the provisional
governments, but in of vacancies very clearly
points out how they to be filed and that happens
to be IN the usual way by the people, and not by any
other agency any other power, either State or Fed
eral, civil or military.
THE OFFICE OF GOVERNOR
find it impossible, under the provisions Of this act,
to comprehend such official as governor of one Of
these States, appointed to office by of these mill
tary commanders Certainly he is not the governor
recognised by the laws of the State elected by the pee
ecutive power; nor is he appointed military gov
ernor for State which has lawful governor under
the pressure of an existing necessity to exercise pow
at large. The intention, no doubt was to appoint
him to fill vacancy occasioned by military order,
and to put him in the place OF removed governor to
execute the functions of the office as provided by law
The law takes cognsance OF such official, and he
is clothed with authority color Of authority What
is the governor is equally true as to all the
other legislative executive and Judicial officers OF the
State. If the military commanders can Gust one from
his office he can GUST them all. If he fill
cancy he fill all vacancies, and thus usuTp all civil
jurisdiction into his own hands the hands of those
who hold their appointments from him and subject
to his power of removal and thus Illustrate the very
right secured to the people by this act. Certainly this
act is rigorous enough II the power which It gives
fcers is still left with the people, and it must be pre-
served / must not be understood as liking limits to
the power of the military commander IN case OF an &C
tual insurrection riot. 1t may happen that an in
surrection of these Statesmay be SO general and
formidable as require the temporary suppression OF
civil government and the establishment OF martial law
in it's place and the same may be true to local dis
order or riot reference to the civil OF the
city or place where it breaks out Whatever power IS
necessary to meet such emergencies the military COM
Emander may properly exercise. | contne myself to
the proper authority of the military commander where
peace and order prevail. When peace and order do
prevail is not allowable to dlspace the civil officers
and appoint others in their places under any idea that
the military commander can better perform his duties
and carry out the general purposes of the act by the
agency Of civil officers OF his own choice rather than
by the lawful incumbents The act gives him right
to resort to such agency but does give him the right
to have sufficient military force to enable him to per-
form his duties and enforce his authority within the
district to which he is assigned In the suppression Of
instruction and riot the military commander 1sWholly
independent of the civil authority So, too IN the trial
and punishment of criminals and offenders he may
percede the civil jurisdiction. His power is to be
ercsed in these special emergencies, and the means
are put into his hands by which it is to be exercised
that is to say sufficient military force to enable such
officer to perform his duties and enforce his authority
and military tribunals of his appointment to try
and punish offenders. There are strictly military pow
ers, to be executed by military authority not by the
civil authority or by officers appointed by him to per-
| form ordinary civil duties II these emergencies do
not happen if civil order is preserved, and criminals
are duly prosecuted by the regular criminal courts
the military power though present. must remain pas
sve Its proper function is to preserve the peace to
promptly when the peace is broken and restore or
der When that is DONE and the civil authority may
again safely its functions the military power
becomes again passive but on guard and watchful
This my Judgment is the whole scope of the military
power conferred by this act, and in arriving at this
construction of the act have not found necessary
resort to the strict construction which is allowable.
MILITARY COMMANDERS POWERS.
What has been said indicates my opinion as to any
supposed power OF the military commanders to change
modify the laws in force. The military commander
is made ccnservator of the peace, not legislator
His duties military duties, executive duties, not
legitimate duties. He has authority to enact or de-
clare code of laws for the people WI hin his dis
trict under any idea that he can make better code
than the people have made for themselves The pub
lie not committed to his discretion. The Congress
which passed this act undertook certain grave par
tculars to change these laws and these changes being
made the Congress further necessity of change
but were content to leave all the other laws in full
force but subject to the emphatic declaration that
to these laws and such future changes as might be ex
pedent the question of expedency, and the power to
alter, amend abolish was reserved for the para
mount authority of the United States at any time to
abolish modify control supersede the same. Where
then, does, military compander find his authority
to abolish, modify snpersede or control any one OF
them?
rrt--
eised by the military commanders in of the dis
tricts would extend this opinion to unreasonable
length few instances must suffice In one of these
districts the governor of State has been deposed
der threat of military force, and another person
called governor has been appointed by the military
commander to fill his place. thus presenting the strange
spectacle of official entrusted with the chief power
to execute the laws of the State whose authority not
recognised by the laws he is called upon execute.
In the district the Judge of Of the criminal
courts of the State has been summary dealt with The
act of Congress does give authority to the military
commander IN cases OF necessity to transfer the urs
dction of criminal court to military tribunal That
being the specific authority the criminal courts
given by the act other authority them can be
lawfully exercised by the military commander.
But in this instance the judge has, by military au-
hory been elected from his Office and private citi
zen has been appointed judge in his place by military
authority and IS now In the exercise of criminal urs
diction of all crimes msdemeaneFs and ofenses com
mitted within the territorial jurisdiction of the court
This military appolntee is certainly authorised to
try any one for any oense as member of military
punish any offender judge of a criminal court of
State It happens that this private citizen thus placed
the bench is to sit the sole judge in the criminal
court whose jurisdiction extends to cases involving the
life of the accused. If he has any judicial power in
any case he has the power take cognsance of
capital oense and to sentence the accused to death
and order his executon-a strange spectacle, where
the judge and the criminal may very well change Places
for if the criminal has unawfully taken life So too
does the judge. This is the inevitable result for the
only tribunal, the only judges-if they be called
Judges-Whch military commander constitute
and appoint under this act to nct the death penalty
is military court composed Of board, and called in
the act military commission | see no relief for
the condemned against the sentence of this agent of the
military commander. 1t is the sort of court whose
sentence of death must be first approved by the com
mander and finally by the President for that's allowed
only where the sentence is pronounced by military
commission. Nor is it sentence pronounce by the
rghtful court of the State, but by court and by
judge not clothed with authority As the representa-
tive of the military authority this act forbds interfe
under color or State authority with the exercise
of his functions.
susPENDING LEGISLATURES AND OFFICIALS.
In another of these districts military order COM
mands the governor of the State to forbid the reassem-
bling of the legislature and thus suspends the proper
legislative power of the State In the district an
order has been issued to relieve the treasurer of the
State from the duties, bonds books papers, etc. APP
pertaining to his Office and to put an assistant quar-
tcrmaster of the United States volunteers in place of