Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1867-06-22

WHAT ARE THIS POwEBs WHICH ABE GBASTED
TO TIE DISTRICT ooSlMANERg
This, then, Is what is granted to the
military commander: The power or
duty to protect all persons in their
rights Of person and property, to sup
press insurrection, disorder aud violence,
and to punish, or 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, or, if necessary, he may resort to
military tribunals.
This comprises all the powers given to
the military commander.
Here is q general clause making it the
duty Of the military commander 10 give
protection to all persons in their rights
Of person and property. Considered by
itself, aud without reference to the con-
teAt and to other provisions of the act,
it is liable, from It's generality, TO be mis-
understood.
What sort Of protection is here meant? d?
What violations Of the rights Of persons,
or OF property, are here intended . In
what manner is this protection TO be
giYen9 These questions arise at once.
REsIAEKABLE CONCEPTION OF THEIR POWER3
ENTERTAINED By SOME or TIE COMMANDERS.
1t appears that some OF the military
commanders have understood this grant
of power as all-comprehensiTe confer
ring on them the power TO remove the
executive and judicial officers Of the
state, and TO appoint other officers in
theiF PLACES, TO suspend the legislative
power Of the state, TO take under thei1
control, by officers appointed by thei4-
selves, the collection and disbursement
Of the revenues Of the state, to prohibit
the execution OF the laws OF the state by
the agency Of its appointed officers and
agents to change the existing laws in
matters affecting purely civil and private
rights, to suspend or eujOiu the execution
of the judgments and DEGREES Of the
established state courts, TO interfere in
the ordinary administration of justice in
the state courts, by prescribing new quail
iaeations for Jurors, and 10 change, upon
the ground Of eXpediencY, the EXISTING
relations Of the parties to contracts,
giving protection TO one party by FiOlat-
ing the rights Of the other party.
THEY NAY BE HpyEsT. HUT THEY NEED IA
sIHu CFIlN.
I feel confident that these military
officers, in al they have done, have sup
posed that they had full warrant for their
action Their education and training
have not been Of the kiudto tit them for
the delicate and difficult task of giving
constitution 10 sucn a statute as that
now under consideration. They require
instruction. and nearly all Of them have
asked foT Instruction, 20 solve their own
doubts and TO furnish To them a safe
ground for the performance Of their
duties.
PRINCIPLES OF INrEI.PE ErATIOS.
MI 81. g
construction according TO which We must
interpret this grant Of power. It Is a
grant Of power 20 military authority,
over civil rights and citizens, in time Of
peace. 1t is a Dew jurisdiction, never
granted before, by which, in certain par
ticulars and for certain purposes, the
established principle that the militaud
shall be snboTdinQls to thecigil authority
IL reversed. The rule of construction to
be applied to such a grant Of power is
thus stated in Dwarris on statutes, page
y by 80 80 A statute creating q new juTisdic-
an3,1 6StsSs to be construed strictlyu
Guided by this rule, and in the light Of
other rules Of construction familiar to
every lawyer, especially of those which
teach u that, in giving construction 10
single clauses, we must LOOK to the con
text and to tse whole law, that general
clauses are to be controlled by particular
clauses, and that such construction is to
lie put on a special clause to make il haT-
mOnize with the other parts of the stat
ute, so as to avoid repugnancy. / pro-
ceed to the construction of this part of
the act.
INTERPRETATION OF THE BILL
To consider, then, in the first place,
the terms of the grant. Ii is Of a power
TO protect ali persons in their rights of
person and property. IL is not q power
to create new rights, but Only to protect
those which exist and are established by
the laws under which these people live.
1t is a power to preserve, not to abrO-
gate; to sustain the existing frame of
social order and civil rule, and not a
power to introduce military rule in its
place. In effect, it is a police power,
and the protection, here intended, is pro-
lection OF persons and property against
violence, unlawful force, and criminal
infraction. 1t is given to meet the con
tingency reeited in the preamble, of a
want Of " adequate protection for life
and property; % and the necessity also
reeited, " that peace and good order
should be enforced
This construction is made more appa-
context, ard see in what mode, and by
what agency, this protection is to be per-
formed by the suppression Of insurrec-
ton, disorder and violence, and by the
punishment, either by the agency Of the
state courts, or by military commission
ers, when Necessary, or all disturbers of
the public peace and criminals snd it is
declared that all interference, under color
of state authority, with the exercise of
this military authority, shall be null and
void.
The next succeeding clause provides for
a speedy trial Of the offender, f5rbids the
infiictiOn of cruel and unusual punish
msnt, and requires that sentences of
these military courts, which involve the
liberty or life of the asGused, shall have
the approval of the commanding gene
raj, and, as to . sentence of death, the
approval of the president before exeeu-
ton.
All these special provisions have refer
enee to the preservati6mene order, and
nrotection against violelFFssgganessi crime.
They touch no other department or
function of the civil administration,
save only its criminal jurisdiction, and
even IS to that the clear meaning of this
act is, that It is not 10 be inteFfered with
by the military authority, unless when
a necessity for such interference may
happen 20 arise.
No suADow OF Authority FOR INTERFERING
Win gHE CIVIL AUTHORITY IN ITS LEGfs-
TATIvlf EXECUTIVE OK JUDICIAL DEPART
WrSrs, EXCEPT WITH CRIMINAL JURIsDIC-
TIOS nS CERTAIN CASES.
I see no authority, nor any shadow Of
authority, for interference with any
other courts or any other jurisdiction,
than criminal courts in the exercise Of
eriniinsI jurisdiction. The existing civil
authority in all its other departments,
legislative, executive and Judicial, is left
untouched. There is no provision, even
under the plea of necessity, to establish,
by military authority, courts or tribunals
the tris.l of civil cases, or for the protec-
tion of such civil rights Of person or
nroperty as come within the e0gni-
lance Of civil courts as coutra-disrin-
0uisbeti from criminal courts. In point
81 fact there was DO foundation for such
n GRANT OF pewer, for the civil rights act
and tie freedInen's bureau act neither
al which is superseded BY this act, made
annie provision for the protection of all
merely civil rights where the laws or
eonrtsof these states might fail to give
fun, impartial protection.
- .,-,sr,orrry w4ArEvER TO REMOVE ANY Ex-
EcuTTYE Or JUDICIAL oF1IcER.
find no authority anywhere in this
aet for the removal by the military COM
uander Of the proper officer Of a state,
eithel. executive or judicial, or the ap-
nointment Of persons in their places.
Nothing short OF an express grant Of
nozer would justify the removal or the
~ nrojn fmeut OF such an officer. There
= 30 such grant expressed or even I'M
niied. ON the contrary the act clearly
enough fcrbids it. The regular state