Year: 1867

State or if necessary, he may have resort to mill
tary tribunals.


This comprises all the powers given to the Mill
tary Commander.


Here is general clause making it the duty o
the Military Commander to give protection to al
persons in their rights of person and property
Considered by itself, and without reference to th
context and to other provisions of the act it is Liza
bic, from its generality, to be misunderstood:
/ What sort of protection is here meant? Wha
violations of the rights of persons, or Of property
lection to be given2 These questions arise at once


1t appears that some of the Military Commander
have understood this grant ofpower as all-compre
Ihensive; comforting on them the power to remov'
1.-THE executive and judicial officers of the State, ant
to appoint other officers in their places, to suspend
the legislative power of the State, to take unde
their control, by officers appointed by themselves
the collection and disbursement of the revenues O.
the State, to prohibit the execution of the laws
the State by the agency of its appointed officer
and agents, to change the existing laws in matter
affecting purely civil and private rights, to suspend
or enjoin the execution of the judgments and de
in the ordinary administration of justice in thu
State courts, by prescribing new qualifications fo
jurors, and to change, upon the ground Of expedi
ency, the existing relations OF the parties to con
tracts, giving protection to one party by violating
the rights of the other party.


feel confident that these military officers, in al
they have done, have supposed that they had full
warrant for their action Their education ant
training have not been of the kind to fit them fo
the delicate and difficult task Of giving construction
to such statute as that now under consideration
Theyrequire instruction, and nearly all of them have
asked for instruction, to solve their own doubts
70 r,ichf fN lpr
formance of their duties.


| There can be no doubt as to the rule OF construc
ton according to which We must interpret thiE
grant of power 1t is a grant Of power to military
authority over civil rights and citizens in time o.
peace. 1t is new jurisdiction, never granted be


fore, by which, in certain particulars and for certain
purposes, the established principle that the militia
ry shall be subordinate to the civil authority, is
reversed. The rule of construction to be applied
to such grant of power is thus stated in Daoar71i
on Statutes, page 652: "a statute creating new
Jurisdiction ought to be construed strictly"


Guided by this rule, and in the light of Other
rules of construction familiar to every lawyer espe
cally of those which teach us that, in giving con-
struction to single clauses we must look to the con-
text and the whole law, that general clauses are tc
controlled by particular clauses, and that such con.
struction is to be put special clause as to make
it harmonic with the other parts of the statute,
so as to avoid repugnancy. L proceed to the con-
struction of this part of the act.


To consider, then, in the first place, the terms
of the grant. 1t is Of power to protect all per-
sons in their rights of person and property. 1t is
not power to create new rights, but only to pro
tect those which exist and are established by the
laws under which these people live. 1t is power
to preserve, not to abrogate to sustain the exist
ing frame Of social order and civil rule, and not
power to introduce military rule in its place. In
effect, it is police power and the protection, here
intended, is protection of persons and property
against violence, unlawful force and criminal infrac
ton. 1t is given to meet the contingency recitcd
in the preamble, of want Of adequate protection
for life and property" and the necessity also reci
ted, ''that peace and good order should be enfor-
ced"


This construction is made more apparent when
we look at the immediate context and see in what
mode, and by what agency, this protection is to be
secured. This duty, or power, OF protection IS to
be performed by the suppression Of insurrection,
disorder and violence, and by the punishment,
either by the agency of the State Courts, or BY
military commissioners, when necessary of all dis
turbers of the public peace and criminals and it is
declared that all interference, under color Of State
authority, with the exercise of this military author
ty shall be null and void.


The next succeeding clause provides for speedy
trial of the offender forbids the inAiction Of crue
and unusual punishment, and requires that SEN
tences of these military courts, which involve the
life and liberty of the accused, shall have the ap-
proval of the Commanding General, and as to the
sentence Of death, the approval Of the President,
before execution.


All these special provisions have reference to the
preservation of order and protection against vio,
fence and crime They touch no other department
49, tbo o1m oDly
its criminal jurisdiction, and even as to that the
clear meaning of this act is, that it is not to be in
terfered with by the military authority, unless when
necessity for such interference may happen to a
rise.


see no authority, nor any shadow Of authority,
for interference with any other courts or any other
jurisdiction, than criminal courts in the exercise Of
criminal jurisdiction The existing civil authority
in all its other departments, legislative, executive,
and judicial, is left untouched. There is no pro-
vision, even under the plea of necessity, to estab
sh, by military authority, courts or tribunals fol
the trial of civil cases. or for the protection of such
the cognizance of civil courts as contra distinguish
ed from criminal courts. In point OF fact there
was no foundation for such a grant of power, fol
the Civil Rights act and the Freedmans Bureau
act, neither of which is superseded by this act
made ample provision for the protection Of al
merely civil rights where the laws or courts Of these
States might fail to give full impartial protection
1 find no authority anywhere in this act for the
removal by the Military Commander, of the proper
officers of State, either executive or judicial, OF
the appointment Of persons to their places. Moth
ing short of an express grant OF power, would JUS
| tify the removal or the appointment OF such m
officer There is no such grant expressed OF
even implied. On the contrary the act clearly e.
nough forbids it. The regular State officials, duly
elected and qualified are entitled to hold their OH
ces. They, too, have rights which the Military
Commander is bound to protect, not authorized to
destroy.


| We find in the concluding clause of the sixth
section of the act that these officials are recognized
and express provision is made to perpetuate them
1t is enacted that Tin all elections to any office un
der such provisional governments, all persons sha!
be entitled to vote, and none others, who are enti
tied to vote under the provisions of the fifth Sec
ton of this act and no person shall be eligible tc
any Office under such provisional governments
who would be disqualified from holding office un
der the provisions of this act. "


This provision not only recognizes all the officers
of the provisional governments but, in case OF va
cances very clearly points out how they are to be
filled; and that happens to be in the usual way
BY the people, and not by any other agency or any
other power, either State or Federal, civil or mill


[ find it impossible under the provisions of this
act to comprehend such an official as Governor
of one of these States appointed to office by one o
these Military Commanders. Certainly ne IS moi
the Governor recognized by the laws of the State
elected by the people of the State, and clothed as