Year: 1867




NO NEW OR EX POST FACTO LAWS CAN


BE MADE.


THE = D1sFRANcH1sED e CLASSES, IS


ATTORNEY GENERALS OFFICE, |


June II, 1867. J
The President:


SR:-On the oath ultimo, had the honor tt
transmit for your consideration my opinion upor
some of the questions arising under the Recon
struction acts therein referred to. l now proceed
to give my opinion on the remaining questions, up
on which the Military Commanders require instruc
tions.


First as to the powers and duties of these com
manders.


The original act recites in its preamble that nc
legal State governments or adequate protection tol
life or property exist in those ten States, and that
lit is necessary that peace and good order should
be enforced" in those States 'suntil loyal and Re
publican State Governments can be legally estab
lished."


The first and second sections divide these States
into five Military Districts, subject to the military
authority of the United States as hereinafter pre-
scribed, and make it the duty of the President te
assign from the officers of the army, general OH
Ger to the command of each district and to furnish
him with military force to perform his duties and
enforce his authority within his district


The third section declares 'That it shall be the
duty of each officer assigned as aforesaid to protect
all persons in their rights of person and property,
to suppress insurrection, disorder and violence,
and to punish or cause to be punished, all disturb
ers of the public peace and criminals, and to this
end, he may allow local civil tribunals to take iu-
risdiction Of and try offenders, or, when in his
judgment may be necessary for the trial OF often
ders he shall have power to organize military COM
missions or tribunals for that purpose and all in
reference under color of State authority with the
exercise of military authority under this act shall
be null and void."


The fourth section provides ''That all persons
put under military arrest by virtue OF this act shall
unusual punishment shall be inflicted and no SEN
tence of any military commission or tribunal here
by authorized, affecting the life or liberty Of any
person, shall be executed until it is approved by
the officer in command of the district and the laws
and regulations for the government of the army
shall not be effected by this act except in so tar as
they conflict with its provisions: Prousded, That
no sentence of death under the provisions of this
net shall be carried into effect without the ap-
proval of the President


The fifth section declares the qualification of vo-
ters in all elections as well to frame the new con.
sttution of each State as in the elections to be held
under the provisional government until the new
State Constitution is ratified by Congress- and also
fixes the qualifications of the delegates to frame
the new constitution.


The sixth section provides ''That until the peo-
pie of the rebel States shall be by law admitted to
representation in the Congress of the United States
any civil governments which may exist therein
shall be deemed provisional only and in all respects
subject to the paramount authority OF the United
States at any time to abolish, modify, control or
supersede the same and in all elections to any Of
fee under such provisional governments all per-
sons shall be entitled to vote, and none Others who
are entitled to vote under the provisions Of the
fifth section of this act and no person shall be
eligible to any office under any such provisional
governments who would be disqualified from hold
Ing Office under the provisions of the third article
of said constitutional amendment


The duties devolved upon the Commanding Cen
eral by the supplementary act relate altogether
to the registration Of voters and the elections to be
held under the provisions of that act. And as to
these duties they are plainly enough expressed in
the act and it is not understood that any question
not heretofore considered in the opinion referred
to, has arisen or is likely to arise in respect to
them. My attention, therefore, is directed to the
powers and duties Of the Military Commanders
under the original act.


We see clearly enough that this act contemplates
two distinct governments in each Of these ten
States, the one military, the other civil. The civ
government IS recognized as existing at the date
of the act The military government is created by
the act Both are PROVISIONAL and both are to con-
tinue until the new State Constitution is framed
and the State is admitted to representation in Con-
gress. When that event takes place, both these
provisional governments are to cease. In contem-
plation of this act this military authority and this
civil authority are to be carried on together. The
people in these States are made subject to both,
and must obey both, in their respective jurisdic-
tons


There is, then an imperative necessity to define
as clearly as possible the line which separates the
two Jurisdictions, and the exact scope of the au-
thority of each.


Now as to the civil authority, recognized by the
act as the provisional civil government, it covered
every department of civil jurisdiction in each Of
these States 1t had all the characteristics and
powers of State government legislative, judicial,
and executive and was in the full and lawful exer
else of all these powers, except only that it was not
entitled to representation as State OF the Union.
This existing government Is not set aside; 1t Is re-
cognized more than once by the act. 1t is not in
any one of its departments or as to any one OF Its
functions, repealed or modified by this act save
only in the qualifications of voters, the qualifca,
tions of persons eligible to Office, the manner OF
holding elections, and the mode of framing the
constitution of the State. The act does not in any
other respect change the provisional government,
nor does the act authorize the military authority to
changeit it. The power of further changing it is re-
served, not granted and it is reserved to Congress,
not delegated to the Military Commander.


Congress was not satisfied with the organic law,
or constitution, under which this civil government
was established. That constitution was to be
changed in only one particular to make it accept
able to Congress- and that was in the matter OF the
elective franchise. The purpose the sole object OF
this act is to effect that change, and to effect it by
the agency Of the people of the State, or such Of
them as are made voters by means Of elections
provided for in the act, and in the meantime to
preserve order and to punish offenders, if found ne
cessary, by military commissions


We are, therefore, not at a loss to know what
powers were possessed by the existing civil author
ity. The only question is upon the powers con-
ferred on the military authority Whatever power
is not given to the military remains with the civil
government.
We see, first of all, that each Of these States is
made sub bect to the military authority of the Uni
ted States to the military authority altogeth
er, but with this express limitation, as hereinafter
prescribed"


We must, then, examine what is Hereinafter
provided, to find and nature of the power
granted. ~


This, then, is what is granted to the Military
Commander: the power or duty ito protect al
persons in their ghts of person and property, te
suppress insurrection, disorder and violence, and
to punish, or cause to be punished, all disturbers