Evening star., 1867-06-17

Inc EyaneeUcal LutQeran SYNOD OF PENN
sylvania and adjacent States is In session at
Lebanon, KY. .
THE OPINION OF THE ATTORNEY
..t GENERAL.
The opinion of the Attorney General on the
powers and duties Of the military command
ers. and the relations of the civil and military
authorities in the Southern States, Just pub
lished, sets forth that the act contemplates
two distinct governments, the one military,
the other civil, in each Of the ten States COM
prised in the military districts: the civil rec
ogniZed as existing at the date Of the act, and
the military created by the act, both being
provisional, and both to cease when the new
State constitutions are framed and accepted
by Congress. The civil government having
all the characteristics and power OF a State
government, legislative, judicial and execu-
tive, is recognized more than once by the act,
and is not in any respect changed by it, save
only in the matter of the qualifications of
voters. and OF persons eligible to office, the
manner Of holding elections, and the mode OF
framing the State constitutions. The power
of making any further change is reserved TO
Congress, not delegated to the military COM
mander. Whatever power Is not given TO the,
military by this act, remains with the civil
government. The only question is upon the
powers conferred on the military authority.
Each OF the ten States is s'made subject TO
the military authority of the United States;''
not to the military authority altogether,
but with this express limitation, "ds hare
matter prescribed" What is hereinafter
prescribed is general clause, making
II the duty of the military commander
to give protection to all in their rights of per-
son and property. The Attorney General then
proceeds 10 inquire what sort of protection
here meant, and in what manner the protection
is to be given. He answers that the power TO
protect is not power to create rights,
but to protect those which are esta blis he'd by
existing laws; in effect, a police power, given
to meet the contingency recited IN the preamb Bile
of the act, of want of adequate protection
for Ii fe and property" and the necessity also
recited "that peace and good order should be
enforced" This construction is made more
apparent by the immediate context, which sets
forth that this protection is to be done by the
suppression of insurrection and disorder and
by the punishment, either by the State courts
or by military commissioners when necessary,
of all offenders. None Of the special clauses
have reference to any department of the civil
administration, save only Its criminal juris-
diction. There is no provision whatever TO
establish coHrts tribunals for the trial OF civil
cases There is no authority for the removal
by the military commander of the proper off,
GERS of State, either executive or judicial, or
the appointment of persons TO their places. No
such grant of power is either expressed or i'm
piled in the act The concluding clause of the
sixth section not only recognizes all the officers
of the provisional governments, but. in case of
vacancies directs that they shall be filled -.
the people, not by any other power, ci- al ~
military commander is neither recr .oiIod r.
the laws of the State nor is he a ,nointad a. y
military govern or for State W oicf has nolaw
fnt nnss soHei6GS1 tha Goyernor e be- commander can
cM cials Of the Sta.te, Whereas the act leaves
the right OF SIeeting their Off GERS to the peo-
pie: In the suppression OF insurrection the
military commander is independent of the
civil authority, and in the trial of criminals he
may supercede the civil jurisdiction, but if
these contingencies do not happen, the mill
.afy power ramas ..Is pass,S1. The military
Commander is made by the act a conservator
| of the peace, not a legislator. Thee act ex--
pressly declares that as to such future ch" "ngeS
OF laws as might be expedient, the question -
eSpeoiehcy, and the power to alter. amend, or
aooIish, was reserved for ssthe paramount au-
thority of the United States at any time 10
abolish, modify, control, or supercede the
same" Where then, does a mifitarv com
mander find has authority to set aside anW of
these lawsf The Attorney General then pro-
ceeds to give some instances of what he calls
tary conmanders--the deposing Of a Governor
ana the appointment of another IN his place.
ana the ejectment C a Judge OF one of the
enaminai eiaaa courts and @ Ine appointment IN his
mat the commander has authority only in
cases OF necessity TO transfer the Jurisdiction
10 military tribunal. This is the specific au-
thority, and no other can be lawfully exer-
cised. This new judicial appointee mas the
power to inf1ict the death penalty, whereas the
only Judges having this power whom the act
point is a 'military commits SION, Other
examples are cited Of alleged InterYer-
South Carolina. in which the military
commander assumes that the aparamount
authority" Is vested In himself as fully as in
Congress. The military commanders are re-
sponsible to the President, and the decision of
Chief Justice Ohaoe In the case of the state of
Mississippi, under this very act, is cited to,
prove this position. The concluding portion
Of the opinion is "a summary OF who are en-
titled to registration. The oath prescribed in
the supplemental act defines all the squalifica-
tions required. Two elements must concur.
in order to disqualify person under the oath:
nrst, the efice and Official oath to support the
Constitution of the United States; second, en-
gaging afterwards in rebellion. Both must
exist to work disq qualification, and must hap
pen in the order OF time mentioned. 1T rs al-
most as long, but somewhat clearer than his
previous opinion on the reconstruction acts.
It's wh ole pith is contained in the following
paragraph 81 find no authority any where in
this act for the removal by the military com,
mander OF the proper officers of a State, either
executive CT judicial or the appointment of
percons to their places. Nothing short of an
express grant OF power would justify the re.
movai or the appointment Of such an of7icsr,
There is no such grant expressed, or even i'm.
plsd: On the contrary, the act clearly enough
forbids IT. The regular State oficials duiv
elected and qualified, are entitled to hold their
offices. They, too. have rights which the mil
itary ccmmander !. bound to protect, not au-