Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1867-06-21
be disqualified from holding Office under

officers OF the provisional governments, out
IN case of vacancies, very clearly points ou'
how they are to be filed and that happens
to be in the usual way, by the people, and
not by any other agency or any other pow
er, either State or federal, civil or military
i l find it impossible, .lnder the provisions Of
this act, to comprehend such an official as GOV
ernOr of one Of these States appointed to once
by one of these military commanders. Certainly
he is not the Governor recognized by the laws OF
the State elected by the people OF the State, and
clothed as such with the chief executive power
Nor is he appointed military Governor for
State which has no lawful Governor under the
pressure Of an existing necessity, to exercise
powers at large. The intention, no doubt, was to
appoint him to fill vacancy OccasiOned by mil
itary ORDER and to pat him the place OF the
| moved Governor to execute the functions OF the
office as provided by law. The law takes cog
nizanco Of such an official, and he is clothed with
no authority or color of authority.
| What is true to the Governor, is equally true
| az to all the other Legislative, Executive and Jul
dciaI officers Of the State. II the Military Com
mander can GUST one from his Office, he can GUST
them all. II he can fill one vacancy, he can till all
vacancies and thus usurp all civil jurisdiction i'll
| to his own hands on 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. Certain
! " this act is vigorous enough in the power which
it gives al its severity, the right of eecting
their officers IL still left with the people, and
! it must be preserved.
| | must not be understood fixing limits to the
| power Of the military commander IL case OF an
| actual instruction riot. 1t may happen that
an insurrection in one OF these States may be so
! general and formidable to require the tempo
rary suspension of ali civil government and the
establishment of martial law III its place. and the
same thing may be true as to local disorder or
riot in reference to the civil government OF the
city place where it breaks out. Whatever power
is necessary to meet such emergencies the mill
tary commander may properly exercise
/ COnlinG myself to the proper authority or the
Military Commander, where peace and order pre-
vail. When peace and order do prevail, 1t IS not
allowable to dispace the civil "ticors and appoint
others in their places under any idea that the Mill
itary 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 incumbent. The act gives hlm
no tight TO resort TO such agency, but does give
him the right 70 have sufficient military force to
enable him to perform his duties and enforce his
authority within the district to which he IS as
signed.
In the suppression of instruction and riot, the
military commander is wholly independent OF the
civil authority. SO, too, iii the trial and punish
mcut OF criminals and offenders, he may super
code the civil jurisdiction. His power IS to be eX
CrcIsed in these special emergencies. and the
means put into his hands Dy which it is to be
exercised, that is to say-a sufficient military force
to enable such officer to perform his duties and
enforce his authority, and military tribunals OF his
own appointment to try and punish Ottender3.--
These are strictly military powers to be executed
by military authority, not by the civil authority or
by civil officers appointed by him to perform or
binary civil duties Ii these emergencies do not
happen; if civil order is preserved and criminals
arc duly prosecuted By the regular criminal
courts, the military power, though present, must
remain passive. It's proper function Is to preserve
the peace, to act promptly when the peace Is bro
ken, and restore order. When that Is done, and
the civil authority may again safely resume its
functions, the military power again becomes pas
sive, but on guard and watchful. This, i'll my
Judgment, is the whole scope OF the military pow
er conferred by this act, and in arriving this
construction Of the act, [ have not found it ne
cossary to resort to the strict construction which
Is allowable.
What has been said indicates my opinion as to |
any supposed power of the military commander |
to change modify the laws in force. The mill |
tary commander is made CONSERVATION of the |
peace, not legislator. His duties are military |
duties, executive duties not legislative dutles.-
He has authority TO enact declare new |
code Of laws for the people within his district
der any idea that he can make a better code than |
the people have made for themselves. The pub
lie policy is not committed 10 his discretion. The
Congress which passed this act undertook, IN GER |
tain grave particulars, to change these laws, and
these changes beng made, the Congress saw no !
further necessity OF change, but were content to |
leave all the other laws III full force, but subject
to this emphatic declaration, that to these laws |
and such future changes might be eXpedient, |
the question of cNpedency and the power to alter,
or abolish, was reserved for " the paramC mt ar-
thoTity Of the United States at any time to ahOl-
lsh, modify, control, or superSede the same. -
Where, then, does military commander find lis
authority . to abolish, modify, control, super
scde, any one Of the laws?
exercised by the military commanders il some
Of the districts would extend this opinion to an
unreasonable length. few instances must suf-
ice.
In one OF these districts the Governor of
State has been dep0sed under a threat of military
Orce, and another person, called Governor, has
been appointed by the military commander to fill
lis place ; TINS presenting the strange spectacle
ii an official entrusted with the chief power to
execute the laws Of the State whose authority is
lot recognized by the laws lie Is called upon to
execute. T.
In the same district the Judge of one of the
courts Of the State has been summarily
leait with. The act of Congress does give au-
nOrlty to the mi1tary commander, In cases OF
necessity, to transfer the jurisdiction Of crimi-
nal court to military tribunal. That being the
specific authority over the criminal courts given
Oy the act, no other authority over them can be
lawfully exercised by the military commander
But in this instance the judge has, by military
)rdor been elected from his office, and private
citizen has been appointed judge in his place by
military authority, and is now i'll the exercise of
criminal jurisdiction cover all crimes, msdcmean-
us and Offences committed within the territorial
Jurisdiction Of the court. This military appointee
certainly not authorized to try any one for any
,t1cuCe as q member Of a military tribunal, and
le has just as little authority to try and punish
my offender as judge Of criminal court Of the
State.
1t happens that this private citizen, thus placed
IN the bench, is to sit az the sole judgein a Grim
nal court whose jurisdiction extends to cases in
rOying the life of the accused. If he has any jul
take cOgniZ&ncG of capital cases, and to sentence
he accused to death, and order his execution 4
TRANCE spectaclei where the Judge and the GRIM
nal may very we'll "chan38 places .; for if the
rimina! has unlawfnlly taken life, so, too, does
he Judge. This is the inevitable result; for the
,nly tribunal, the only Judges if they can be call
ID Judges, which a military commander can con-
tituto and appoint under this act to infict the
leath penalty is q military court composed of a
BOARD, and called in the act "militaTy commits
iOn.''
l see no relief for the condemned against the
sentence of this agent of the military commander.
t is not the sort OF court whose sentence of death
must be first approved by the commander and fl
lally by the President, for that is allowed only
where the sentence is pronounced by g military
commission. Nor IS it a sentence pronounced by
he TigntfuI court of the State but by court and
~ Il Judge not clothed with authority under the
avs Of the State, but constituted by the military
authority. As the representative Of this military
this act fOrbids interference ''under
olor OF State authority" with the exercise of his
functions.
In another one oftlese districts military order
the Governor of the State to forbid the
of the Legislature, and thus sus-
oends the proper legislative power Of the State
In the same district order has been issued to
felcEe the treasurer Of the State from the duties
bonds, books papers, DC, appertaining to his Of
1ce, ana TO put an assistant Quartermaster of |