The evening telegraph. [volume] (Philadelphia [Pa.]) 1864-1918, 1867-06-17
OPIEION OF THE ATTORNEY GENERAL
As to the Powers of the Military Com
manders. and summary of the QHallh-
catiOus of Voters.
GRNERAL's OFFIoB,
WASHINGTON, June l2, 1867

nniniOn
proceed 70 give my opinion on the reLnainhg ques-
9F,Ts ss TO the powers and duties Of these
The original act recites in its preamble that emo
legal State governments OF adequate protecuon
foP life or property exist" In those ten states, anu
tbat Iit is necessary that peace and good order
should be enforced" IN those States 'uhti loyaI
and republican State governments can 10 es"iiy
The sret and second sections divide these States
into five military districts, soolect 20 sne g 2
authority of the United States as hereinafter pre-
acribed and make IL the duty OF the fresloeht 70
assign, from the officers OF the army gehetal F Oi
Ger 10 the command of each distrlet ana 70 iuIhsn
him Itb military force to perform his duties and
enforce his authority within mis- district
The third section declares "That ~ snal oe , the
autv of each officer assigned aforesaid to protect
ali persons in tn ir rights Of person and property
TO suppress insurreciion, disorder and violence,
and 10 punish or cause to be punished, all disturb
ers of the public peace ana criminals, anu 70 tnls
end he NAV allow local civil tribunals to take Ju-
rfsdiotion Of and trv Offenders, OF, when in his
Judgment II may be necessary Tor the trial OF or
RENDERS ne shall have power TO organize military
Commissions or tribunals for that purpose; and
All interference under color of state authority with
the exercise Of military authority under this act
shall be pull and yoid.n
The fourth section provides "That all persons
put under military arrest by virtue of this act snail
be tried without unnecessary delay, and no cruel
or unusual punishment shall be lnfllciedi ana no
sentence of any military commission or TRIBUNAL
any person. shall be executed until it is approved
by the officer in command OF the District ana the
army shall not be affected by this act except In so
far they conflict with its provisions; FroTlueu
That no sentence of death under the provisions OF
this act shall be carried into effect without the ap-
proval of the President"
The fifth section declares the qualification of
voters in all elections, as well TO frame the new
constitution for each State in the elections TO be
held under the provisional government until tne
State constitution is ratified by Congress, and
also fixes the qualifications of the delegates to
frame the new constitution.
The sixth section provides "rhat until the people
Of said rebel States shall be by law admitted to
representation in the Congress of the United
States, any civil governments which may exist
therein shall be deemed provisional only, and in
all respects subject TO the paramount authority OF
the United States at any time to abolish, modify,
control or supersede the same and in all elections
70 an office under such provisional governments,
others, who entitled to vote under the pro-
visions of the fifth section Of this act; and no
person shall be elegble to any office under any
such provisional governments who would be dis
qualified from holding office under the provisions
o. the third article o. said constitutional amend
ment."
The duties devolved upon the commanding gen.
eral by the supplementary act relate altogether to
the registration OF voters and the elections to be
held under the provisions of that act And as to
these duties they plainly enough expressed in
the act and it Is not understood that any question
not heretofore considered in the opinion referred
to arisen or is likely to arise respect them.
My attention, therefore, is directed to the powers
and duties OF the military commanders under the
original act.
We see clearly enough that this act contemplates
two distinct governments in each Of these ten
States the military, the other civil The civil
government is recognized 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 the new State constitution Is framed and the
State is admitted to representation in Congress.
governments to cease. In contemplation ofthis
act this military authority and this civil authority
States are made subject to both, and must obey
both in their respective Jurisdictions
There is, then, an imperative necessity do denne
as clearly possible the line which separates the
two Jurisdictions, and the exact scope OF the au-
Now as to the civil authority, recognized by the
act the provisional civil government 1t covered
these States. 1t had all the characteristics and
powers of a State government, legislative, Judi.
cial and executives and was in the full and lawful
exercise OF all these powers, except only that IL
not entitled TO representation as State or the
Union. This existing government is not set aside;
it is recognized more than once by the act. 1t is
not in any one of its departments, or as 10 any one
OF its functions, repealed or modlhea oy TINS aet,
save only in the qualifications OF voters, the
qualifications of persons eligible to Office, the man
ner OF holding elections, and the mode OF framing
the constitution OF the State. The act does not In
any other respect change the provisional govern
ment, nor does the act authorize the military au-
thority to change it. The power of further chang
ing it is reserved not granted and 1t is reserved to
Congress, not delegated to the military commander.
Congress was not satisfied with the organic law,
or constitution, under which this civil govern
ment was established. That constitution was to be
changed in only one particular to make it accept
able to Congress, and that in the matter of the
elective franchise. The purpose, the sole object of
this act is TO effect that change and to effect 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 to punish offenders, If found
necessary by military commissions.
We are, therefore, not at loss to know what
powers were possessed by the existing civil au-
thorlty. The only question Is upon the powers
conferred Oh the military authority Whatever
power is not given TO the military, remains with
the civil government.
We see first of all, that each Of these States is
Hmade subject to the military authority of the
United Staes'-not to the military authority alto
gether, but with this express Limitation, "as here
matter prescribed"
We must, then, examine what Is hereinafter pro-
Vided, to find the extent and nature OF the power
This, then, is what is granted to the military
commander: the power or duty "to protect all per-
sons their rights of person and property, to sup
press insurrection disorder, and violence, and to
punish, cause to be punished, all disturbers OF
the public peace and criminals and he may do
this by the agency of the criminal courts of the
State, OF, If necessary, he may have resort to mill
tary tribunals.
This comprises all the powers given to the mill
tary commander.
military commander 70 give projection to all per-
sons in their rights of person and property. Con-
Eidered by ITSELF and without reference TO the con-
text and to other provisions OF the act 1t s liable,
from its generality, TO be misunderstood
What sort of protection is here meant2 What
violations OF the rights of PERSONS or of property,
are here intended2 In what manner Is this pro-
lection TO be glVenl These questions arise az once
IL appears that some of the military commander.
have understood this grant OF power as all-eom-
prehensiVe, comforting on them the power 70 re-
move the executive and judicial officers OF the
State and to appoint other officers in their places
to suspend the legislative power Of tins State TO
take under their control, by otnoers appointed oy
themselves, the collection and disbursement OF the
revenues of the State, to prohibit the execution OF
the faws of the State by the agency OF It's ap-
pointed officers and agents, to change the existing
laws in matters affecting purely civil and private