The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1867-06-20

CHARLESTON, S.
ernments all persons shall be entitled to vote and
Others who entitled to vote under the provisions
gble to any Office under such provisional governments
who would be disqualified from holding office under thu
provisions of this Act"
This provision not only recognizes all the officers
the Provisional overnments but in of vacancies
very clearly points out how they are to be led an6
that happens to be in the usual way by the people and
or Federal civil or military.
find it impossible, under the provisions of this Act
to comprehend such an official as Governor Of one o.
these states appointed to Office by of these military
commanders. Certainly he is not the Governor recog
nzed by the laws o the State elected by the people
the State, and clothed such with the chief executive
power. Nor Is he appointed Military Governor for
State which has lawful Governor under the
of existing necessity to exercise powers at large The
intention, no doubt was to appoint him to fill vacancy
occasioned by military order, and to put him In the
place Of the removed Governor to execute the fncons
Of tho Office as provided by law The law takes cog
nizance of such an official and he is clothed with no au
thority or color Of authority.
What is true Of the Governor is equally true to all
the other legislative executive and judicial officers Of the
State. If the military commander can oust one from
his Office, he oust them all. II he fill one vscan
cy he M all vacancies, and thus usurp all civil juris
dicon into his own hands, the hands of those who
hold tt cir appointments from him and subject to his
cured to the people by this Act Certainly this Act ts
rigorous enough In the power which it gives With al
its severity, the right of eectng their own officers
still left with the people, and 1t must be preserved.
must not be understood fixing limits to the power
of the military commander In case Of actual nsurrec
ton or riot may happen that insurrecton in one
require the temporary suspension of all civil govern
ment and the establishment of martial law In its place
And the thing may be true as to local disorder OF
riot In reference to the civil government Of the city
place where It breaks out Whatever power Is necessary
to meet such emergencies the military commander may
properly exercise. Ioonne myself to the proper autho
ty of the military commander where peace and order
prevail When peace and order do prevail, 1t is not a.
lowable dispace the civil officers and appoint others
in their places under any idea that the military COM
mander better perform his duties and carry out the
general purposes Of the Act by the agency of civil OFF,
GERS of his own choice rather than by the lawful ncum
bents. The Act gives him no right to resort to such
agency but does give him the right to have "a sufficient
military force to enable him o perform his duties and
enforce his authority within the district to which he Ia
assigned"
In the suppression Of insurrecton and riot the mill
tary commander is whely independent OF the civil aq-
thority &c. too in the trial aud punishment of crimt.
malls and offenders, he may supersede the clVli
jurisdiction. His power ts to be exercised IN these
special emergencies and the means are put into his
hands by which It is to be exercised that Is to say
sufficient military force 10 enable such officer to perform
his duties and enforce his authority and military tou
mails Of his appointment to try and punish offenders
These strictly military powers to be executed by
military authority, not by the civil authority or by civil
officers appointed by him to perform ordinary civil
duties. es' - .. ~" -
these emergencies do not happen IL civil order is
and criminals are duly prosecuted by the
regular Criminal Courts the military power though pres
en must remain passive Its proper function is to pre-
the peace, to act promptly when the peace is
broken and restor order When that Is done and the
civil authority may again safely resume its functions the
military power becomes again passive, but on guard and
watchful. =,
This, in my Judgment is the whole scope of the mill
ary power conferred by this Ao and In arriving at this
resort to tina strict construction which sallowable
What has been said indicates my opinion as to any
supposed power Of the military to change or
modify the laws in force. The military commander is
made conservator Of the peace not legislator His
duties are ary duties executive duties, not legsla-
tive duties. He hns authority TO enact or declare
any idea that he can make better code than the people
have made for themselves. The public policy is not
committed to is discretion. The Congress which passed
this Act undertook in certain grave 70
further necessity of change but were content TO
leave all tho other laws In full force but subject to this
emphasize that as 70 these Laws ana sucS cS m
pedieDcy and the power to alter amend or ABOLISH WIS
reserved for the paramount authority 81 the United
States st any time to abolish, modify control or super
find his authority ito abolish modify, CONTROL or super
ssde" any one Of these LAVISH
The enumeration of the extraordinary powers exercised
by the military commanders In some OF the districts,
would extend this opinion to an unreasonable length
In one Of these districts the governor of State has
been deposed under tbreat Of military force and anoth
r person. called governor has been appointed by the
military commander to fill his place. Thus presenting
the strange spectacle of official entrusted with e
chief power execute the laws Of the state whose
hory is not recognized BY the ws he is casd upon to
execute, OF
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 COM
TN ofn
of criminal court to military tribunal That being
the specific authority the criminal courts given by
exercised by the try commander. But In this in
stance the Judge has, by military order, been e]ected
from his once and private citizen fas been appointed
Inc exercise of criminal Jurisdiction 'over all crimes,
misdemeanors and offences" committed within the ter
ritori jurisdiction of the court This military appoee
certainly not authorized to try any one for any offence
as member of military tribunal, and he has just as
Htle authority to try and punish any offender judge
Of criminal court Of the State.
Il happens that this private CITIZEN thus placed on the
whose jurisdiction extends to cases. INVOLVING the LIE
the accused. he has any judicial power In any case
he has the same power to take cognzance OF captta
cases. and to sentence the accused to DEATH and order
his execution strange spectaclel where the judge
and the criminal may very well achanga piacesi lor
the criminal has unlawfuly taken life, so too does the
Judge This Is the inevitable result for the only iDu
nal the only judges they can be called judges which
q military commander can constitute and appoint nn
der this Act to inot the death penalty, is military
court composed Of board, and called In the Act
I. military commission" t,....5.- .-.
ise no relief for the condemned against the sentence
Of this agent Of the military commander: It is not the
sort OF court whose sentence Of death must be trst
proved by the commander and finally by the Presdent
for that is allowed only where the sentence
by military commission" Nor IS 1t sentence pro
nounced by the rightful court of the State but by
court and by judge not clothed with authority under
the laws of the State but htued by the military au
thority AS the representative of this military authority
this Act forbids interference .under color OF State
with the exercise Of bis functions.
In another one of these districts military order cont
mands the Governor Of the State to forbid the reassem
bling of the Legislature and thus suspends the proper
Legislative power Of the State In the same district an
order has been Issued to relieve the Treasurer Of the
state from the duties, bonds books papers &a spper
tanning to his oce and to pnt an assistant Quarter
master of United States volunteers" in place Of the re-
moved Treasurer; the duties Of which Quartermaster
Treasurer are thus summed up: He is TO make to the
Of the district the same reports and 70
turns required from the Treasurer, and monthly state
ment Of receipts and expenditures no VIII pay 81 war
gimate expenditures for the support of the Peniten
ary State Asylum and the support Of the proylsiona
State Government; but n, scrip or warrants for out
paid without special authority nom these headquarters
He will deposit funds In the manner though they
were those of the United States" '.5'- q
In another Of these districts body of military edcs
issued In general and special orders regularly numbered
and In occasional CIRCULAR, have been promulgated
which already begin to assume Che dimensions Of
These military orders modify the existing law In tn
remedies for the collection of debts, the enforcement
DEGREES for the payment Of money stay
ing proceedings instituted prohibiting in certain cases
the right to bring suit enjoning proceedings on execu
ton for the term of twelve months, giving new liens II
certain cases. establishing homestead exemptions, de
claring what shall be legal tender aboshing in ceraI
the remedy by foreign attachment aboIshing bal
aas heretofore authorized" in conractu but no
In other cases. known as actions delico, and chang
ing in several particulars the existing laws to thu
punishment Of crimes and directing that the crimes re
ferred to sha ps punished by imprisonment to hare
labor for term not exceeding ten years less THAI
two years. in the discretion of the court having ursc
ton thereof" One Of these general orders being mum
Der ten of the sees contains no less than seventeen
sections embodying the various changes and modifca
lions which haYe been recited.
The question at once arises in the mind of every Law
yer what power discretion belongs to the court having
jurisdiction Of any of these cences to sentence crimi
nal to any other different punishment than that pro
yied by the law which vests him with jurisdiction Tht
concluding paragraph of this order No TO- is in thes
words: "Any law or ordinance heretofore in force
North Carolina South Carolina, inconsistent with thu
provisions of this general order are hereby suspended
and declared imperative" Thus announcing not Onl,
power to suspend the laws but to declare them gene