Year: 1867

WILLIE, s.
With all its severity the right of electing their Owl
officers is still left with the people, and it must
preserved.


must not be understood as fixing limits to tn
power of the Military Commander in case of al
actual insurrection or riot 1t may happen that al
insurrection in one of these States may be so gene
raj and formidable as to require the temporary sus
pension of all civil government, and the establish
ment of martial law in its place: And the SAM
thing may be true as to local disorder or not II
reference to the civil government of the city o
place where it breaks out. Whatever power is nee
essary to meet such emergencies, the Militar.
Commander may properly exercise. | conine my
self to the proper authority of the Military Com
mander where peace and order prevail Whel
peace and order do prevail, it is not allowable t.
dispace the civil officers and appoint others in the
places under any idea that the Military Command
er can better perform his duties and carry out tn
general purposes of the act by the agency Of CIV
officers Of his own choice rather than by the Lawful
incumbents The act gives him no right to resor
to such agency, but does give him the right to hav'
"a sufficient military force" to enable him Ito per
form his duties and enforce his authority within
the district to which he is assigned. ."


| In the suppression of insurrection and riot, tn
Military Commander is wholly independent of th'
ment of criminals and offenders, he may supersedt
the civil Jurisdiction His power is to be exercised
in these special emergencies, and the means ar,
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 his duties and enforce hi
authority" and military tribunals of his own ap
pointment to try and punish offenders. These ar
strictly military powers, to be executed by miitar.
authority, not by the civil authority or by civil of
fcers appointed by him to perform ordinary civi
duties.


IF these emergencies do not happen, if civil or
der is preserved and criminals are duly prosecuted
by the regular criminal courts, the military power
though present, must remain passive. Its proper
when the peace is broken, and restore order. Wher
that is done and the civil authority may again safe
ly resume its functions, the military power becomes
again passive, but on guard and watchful.


This, in my judgment, is the whole scope Of the
military power conferred by this act, and in arri
wing at this construction of the have not founc


it necessary resort to the strict construction which
is allowable.


What has been said indicates my opinion as tt
any supposed power of the Military Commander
to change or modify the laws in force. The Mill
tary Commander is made a conservator of the
peace, not legislator His duties are military du
ties executive duties, not legislative duties. Ht
has no authority to enact or declare new code o.
laws for the people within his district under any
idea that he can make better code than the peo
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 saw no further necessity
of change, but were content to leave all the Other
laws in full force, but subject to this emphatic dec
laration, that as to these laws and such future
changes as might be expedent, the question Of ex,
pediency and the power to alter, amend or abolish
was reserved for "the paramount authority of the
United States at any time to abolish modify, con.
troll or supersede the same" Where, then, does
a Military Commander find has authority ito abol.
ish, modify, CONTROL or supcrsede' any OF these
laws?


The enumeration of the extraordinary powers
exercised by the Military Commanders in some Of
the districts would extend this opinion to an un-
reasonable length. A few instances must suffice


In one of these districts the Governor of a State
has been deposed under threat of military force,
and another person, called 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 authority is not recog
nized 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 summary
dealt with. The act of Congress does give author
ity to the Military Commander in cases of necessi-
ty, to transfer the jurisdiction of criminal court
to military tribunal. That being the specific au-
thority over the criminal courts given by the act,
no other authority over them can be lawfully ex-
ercised by the Military Commander. But in this
instance the judge has, by military order. been
elected from his Office, and private citizen has
been appointed judge in his place. by military au-
thority, and is now in the exercise of criminal u-
risdiction lover all crimes, misdemeanors, and Of
fences" committed within the territorial jurisdic-
ton Of the court. This military appointee is GER
tanly not authorized to try any one for any offence
as member of military tribunal, and he has just
as little authority to try and punish any offender
as judge of criminal court of the State


1t happens that this private citizen, thus placed
on the BENCH is tost as the sole judge ina criminal
court whose jurisdiction extends to cases involving
the life of the accused. If he has any judicial
power in any case, he has the same power to take
cognzance Of capital cases, and to sentence the &C.
cused to death, and order hisexecution. A strange
spectacle where the judge and the criminal may
well ''change Places" for if the criminal has un-
lawfully taken life, so too does the judge. This is
the inevitable result, for the only tribunal the only
judges, if they can be called judges, which Mil
Iitary Commander can constitute and appoint under
this act, to infct the death penalty, is military
court composed of board, and called in the act a
military commission.


I see no relief for the condemned against the
sentence of this agent of the Military Command
|er 1t is not the sort Of court whose sentence OF
death must be first approved by the commander
and finally by the President; for that is allowed
only where the sentence is pronounced by mill
tary commission" Nor is it sentence pronoun-
ced by the rightful court of the State, but by a
court, and by Judge, not clothed with authority
under the laws Of the State but constituted by the
military authority. AS the representative Of this
military authority, this act forbids interference


under color of State authority" with the exercise
Of his functions.


In another one of these districts military or
der commands the Governor of State to forbid
the reassembing Of the Legislature, and thus sus-
pends the proper legislative power Of the State.
In the same district an order has been issued ito
relieve the Treasurer of the State from the duties,
bonds, books, papers, &C., appertaining to his Of
fce," and to put an Assistant Quartermaster Of
United States Volunteers" in the place of the re-
moved Treasurer the duties of which Quarter
master treasurer are thus summed up He is to
make to the headquarters of the district "the same
reports and returns required from the Treasurer,
and monthly statement of receipts and expendi-
lures he will pay all warrants for salaries which
may be- or become due, and legitimate expendi-
lures for the support of the penitentiary, State
asylum, and the support of the provisional State
government; but no scrip or warrants for outstand-
lolt -,,,l ,E,alr ho