The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1867-06-17


criminal attraction II s gwen W meet the contingency
recitod ~ the preamble Of want Of "adequato pro-
lection for life and and the necessity also re-
THIS construction 10 made more apparent when we
look at the immediate context, and SEQ in what
mode and by what agency this protection Is 70 DO
secured. This duty power Of protection rs to
be performed by tho suppression Of insurrecton, dis
order and violence and oy the PUNISHMENT either Dy
sioners when necessary, Of all siurbers Of the pubic
peace and crimnals and it s declared that all inter.
ference under color Of State authority with the exer
else Of this military authority, shall be null and voc
The next succeeding clause provides for speedy trial
usual punishment and requires thai sentences OF these
military courts which involve the liberty or life OF the
accused, shall have the approval OF the commanding
general and to sentence Of death, the approval OF
he President before execution All these sp cal pro-
visions have reference 10 the OF order and
protection against violence and crime they touch no
other department or function OF the civil adm mis-
tration, save only its criminal Jurisdiction, and
oven - to that the clear meaning of tins act 49, that
to be ,nterered with by the military authority,
unless when necessity for such interference may happen
TO authority nor any shadow OF authority
interference with any other courts any other uris
dction than criminal courts IN the exercise OF criminal
jurisdiction The existing civil authority all iis other
departing legislative executive and judciais lett
untouched. There Is no provision, even under the plea
OF necessity TO establish by military authority courts
tribunals for the trial Of civil cases. or Tor the proec
of such civil rights OF person or property as come
within the ccgnizanCe of civil courts as contra-dstin
guished from criminal courts In point OF fact there
no foundation for such grant OF power; for the
Civil Rights act aud the Freedmcns Bureau ac-neher
OF which is superseded by this act. made ample prov
sion for the protection Of all merely civil rights where
the laws or courts Of these might fail give full
impartial protection lind no authority anywhere IN
this act for the removal by the military commander OF
the proper officers OF State, either executive or
judicial the appointment OF persons to their places
Nothing short Of an express grant OF power would
justify the removal the appointment Of such an ON
Ger There is no such grant expressed implied.
On the contrary the act clearly enough fobds The
enea ' So her oco they too have
which the military commander Is bound TO protect not
authorized TO destroy We find in the concluding clause
Of the section OF the act that these officials are
recognized express provision made 10 perpetuae
them 1t is enacted that I'm all elections TO any office
under such provisional governments all persons snail
be entitled to VOTE and others, who entitled
TO vote under the provisions OF the NTH section OF this
act; and no person shall be eligible 10 any Office under
from holding Office under the provisions ot TINS
act" This prov sion not only recognizes all the
officers OF the provisional government but In
case of vacancies very clearly points out how
they are to be filled; and that happens to DO in the
usual way by the people, and by other agency
or any other power either State or federal civil or NIL
ary. find 1t impossible unoer the provisions OF this
act to comprehend such an Official governor Of one
OF these States appointed to Office by OF tnese mill
tary commanders. Certainly no Is not tho Governor
recognized by the laws OF the State elected by the people
of the State and clothed with the chief
tive power. Nor is he appointed Military Governor
for q State which has lawful Governor, under the
pressure OF an existing necessity exercise powers
large The intention, doubt, was to appoint him to
fiji vacancy accustomed by military ORDER ana TO put
him the place Of the removed Governor, 10 execute
takes cognizance OF such Official and he is clothed
with authority or color Of authority WHAT Is true as
to the Governor equally true to all the other egs
latve executive and judicial officers Of the State.
II the military commander can onst one from
his Office he can GUST them all. II he can Oil one
vacancy he MI all vacancies and thus usurp all
civil Jurisdiction into his hands, or the hands Of
those who hold their appointments from him and scb-
TO his power OF removal and thus Illustrate the very
right secured 70 the people by this act Certainly this
act ID rigorous enough In the power which It gives.
With ali it's severity the right OF eleciing their
OftiC In Ell w IA
served must not be understood fixing limits TO tho
power Of the military commander In case Of an actual
Instruction riot may happen that an nsurrectIon
in OF these States may he general and formidable
70 require the temporary suspension OF ali civil gov
place And tho same thing may be true as TO local dis.
order riot in reference 10 the civil government Of the
city or place where 1t breaks out Whatever power Is
necessary to meet such emergenccs the military COM
mander may properly exercise. confne myself 10 the
proper authority OF the military commander where
peace aud order prevail When peace and order do
vail Il is not allowable TO dspace the civil officers and
appoint others in their places under any idea that
the military commander can better perform bis duties
and carry out the general purposes OF the act by the
agency OF civil officers Of his choice rather than BY
the lawful incumbents The act gives him right to
have sufcient military force' enable him 10 per-
form his duties and enforce his authority within the
district which he Ia assigned" In the suppression of
insurrecton and RIOT tho military commander wholly
independent Of the civil authority &c. too In the trial
and punishment Of criminals and offenders no may
exercised In these special emergencies and the
put into his hands by which II to be exercised
that to say IA sufficient military force 10 enable such
officer TO perform his duties ana enforce his authority
and military tribunals Of his appointment try
and punish offenders These strictly military powers
10 be executed by military authority, by the civil
authority or by civil officers appointed by him
10 perform ordinary civil duties, II these emer
are duly prosecuted by the regular criminal
courts, the military power, though present, must
M a
order When that is done and the authori
~ may again safely resume its functions the military
power becomes again passive, but guard and watch
full This, In my Judgment Is the whole scope Of the
military power conferred by this act and arriving
this construction OF the act have found II
sary the construction which Is allow
able. What has been said indicates my opinion as to
any supposed power Of the military commander TO
mander is made conservator OF the peace, leeis-
ator His duties are military duties executive duties,
not legislative duties He has authority 10 enact
declare code Of laws for the people within his
district under any idea that he can make a better
code than the people have made for themselves The
public policy Is not committed to his discretion The
Congress which passed this act undertook in certain
grave particulars TO change these laws, and these
changes being made the Congress NO further
cessity Of change, but content leave all the
other laws fuh force bot subject TO this emphatic
declaration, that 70 these laws and such future
changes might be expedient the question Of ex-
pediency and the power 10 alter, amend abolish Was
reserved for 1.-THE paramount authority Of the United
States at any time 10 abolish modify control or super
scde the same" Where, then, does q military CON-
mander find his authority 10 abolish, modify control
ton OF the extraordinary powers exercised BY the mill
ary commanders In some Of the districts would extend
this opinion TO an unreasonable length few instances
must sufce In Of these districts the governor Of
. State has been deposed under . threat OF military
force, and another person. called governor has been
appointed by the military commander to l his place
Thus presenting the strange spectacle Of official
trusted with the chief 70 execute the laws Of tho
State whose authority Is not recognized by the laws he
Is called upon 70 execute In the same 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
sy to transfer the jurisdiction Of criminal court 20
military tribunal That being the specinc authority over
the criminal courts given BY the net other authority
over them b lawfully exercised by the military
commander But In this instance the judge has BY MI
ltary order, been elected from his ONCE, and private
citizen has been appointed judge IN his place, BY mill
ary authority, and 70 now In the exercise 0. criminal
jurisdiction lover all crimes, misdemeanos and Of
fences" committed within the territorial jurisdiction
OF the court This military appointee certainly not
authorized TO try any one for any offence - member Of
military tribunal and he has JUST little authority TO
ny and punish offender judge OF criminal court
Of the STATE IL happens thai this private citizen thus
placed on The bench Is 70 sit the sole judge in Grim