The Newberry herald. [volume] (Newberry, S.C.) 1865-1884, 1867-06-26
WEDNESDAY MORNING, JUNE 26, 1867.


When peace and order do prevail, it is
not allowable to displace the civil officers
and appoint others in their places under
any idea that the Military Commander
can better perform his duties and carry
out the general purposes Of the act by
the agency ot civil officers of his own
choice rather than by the lawful incum-
bcnts. The act gives him no right to
resort to such agency, but does g i've him
the right to have "a sufficient military
force" to enable him ''to perform his
duties and enforce his authority within
the district to which he is assigned"
In the suppression of insurrection and
riot, the Military Commander is wholly
independent of the civil authority. So,
too, in the trial and punishment ofcriml-
nails and offenders, he may supersede the
civil jurisdiction. His power is to be
exercised in these special emergencies,
and the means arc put into his hands by
which it is to be exercised. that is to say,
"a sufficient military force to enable such
officer to perform Lis duties and enforce
his authority" and military tribunals of
his own appointment to try and punish
offenders, These are strictly military
powers, to be executed by military au-
thority, not by the civil authority or by
civil officers appointed By him to perform
ordinary civil duties. .
If these emergencies do not happen, if
civil order is preserved, and criminals
are duly prosecuted by the regular cTimi-
nal courts, the, military power though
present must remain passive. Its proper
function is to preserve the peace, to act
promptly when the peace is broken, and
restore order When that is done and
the civil authority may again, safely re-
sumo it's fuctions, the military power
becomes again passive, bat on guard and
Watchful. .-.... .
This, in my Judgment, is the whole
scope of the military power conferred by
this act, and in arriving at this construc-
ton Of the act, I have not found it neces-
sary 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 or modify the laws in
force The military commander
is made conservator Of the peace,
not a legislator. His duties are
executive duties, not legislative du-
ties. He has no authority to
enact or declare a new code Of
laws for the people within his dis
trict under any lea that he can
make better code than the peo-
pie have made for themselves.
The public policy is not commit
ted to his discretion. The Con-
gress which passed this Act un-
dertook in certain grave particu-
lars to change these laws, and
these change being made, the
Congress saw no further necessity
Of change, but were content to
leave all the other laws in full
force, but subject to this emphat-
ic declaration; that as to these
laws and such future changes as
might be expedient, the question
of expediency and the power to
alter, amend or abolish, was re
served for '''the paramount ALL
thority Of the United States at
any time to abolish, modify, con-
troll or supercedc the same"
Where, then, does a military COM
mander find his authority ito aboi
ish, modify, control or supercede"
any one Of these laws ?
The enumeration Of the extra
ordinary powers exercised by the,
military commanders in some Of
the districts would. extend this
opinion to an unreasonable length.
A few instances must suffice.
In one Of these districts, the
Governor Of a State has been de-
posed uuder threat Of military
force, and another person, called u
governor, has been appointed by
the military commander to fill his
place thus presenting the strange
spectacle of an official entrusted
with the chief power to execute
the laws Of the State, whose an
thorityis not recognized by the
laws he is called upon to execute.
In.the same district, the judge
Of one of the criminal courts Of
the State has been .summariIy
dealt with. The Act Of Congress
does give authority to the militia
~ commander, in cases ofnecessi-
tv. to transfer the Jurisdiction Of
a criminal court to a military tri-
bunal. That being the specific
authority over the criminal courts
given by the Act, no other author
itv over them can be lawfully ex-
ercised by the military comman-
der. But in this instance, the
Judge has, by military order, been
elected from his once, ana 4 Pf1-
vate citizen has been appointed
Judge in his place by military au-
thority, and is now in the exercise
of criminal jurisdiction "over all
crimes, misdemeanors and often
ces" committed within the terri
torial jurisdiction of the court.
This military appointee is certain
" not authorized to try any one
for any offence as a member Of a
military tribunal, and he has just
as little authority to try and pun
ish any offender as a judge OF
criminal court Of the State.
It happens that this private cit
zen thus placed on the bench IS to