Year: 1867

Of an express grant ct power would Justify
the removal or the appointment of such an
officer. There is no such grant either ex-
pressed or even implied. On the contrary,
the act clearly enough forbids it. The re-
gular State officials, duly elected and quail
flied, are entitled 10 hold office. They too
have rights which the military commander
Is bound TO respect, not authorized to de-
stroy.


find it impossible under the provisions
OF this act, TO comprehend such an official
as a Governor of one of these States ap-
pointed to office by these military COM
manders. The law takes no cOgnizance of
such an official, and he is clothed with no
authority or color of authority. What is
true as TO Governor is equally true as to
all other legislative, executive or judicial
officers of the State. .


Certainly the act is rigorous enough in
the power which it gives. With all its
severity, the right of electing their own
officers is still left with the people, and it
must be preserved.


The opinion is confined to the proper
authority of the military commander
when peace and order prevail. In case of
actual insuTrection or violence one of these
is 50 formidable as to require the Temporal
ry suspension of all civil government and
the establishment of martial law in its
place. Whatever power is necessary to
meet such an emergency the military COM
mander may properly exercise. In the
suppression of insurrection and riot the
military commander is wholly independent
of civil authority.


IA fan Ia ha trial IF Il Il Of
Tenders. He may supersede the civil juris-
diction if civil order is preserved and
criminals are daily presented by the regu-
lar criminal courts. The military power,
though at present must be passive, its
proper function is to preserve peace-to act
promptly when the peace is broken, and
restore order. When that object is done
and civil authority may again safely re-
sumo its functions, the military power be-
comes again passive, bat on guard and
watchiul.


This is the scope of the military power
conferred by this act The military COM
mander is made a conservator Of peace, not
legislator. His duties are military and
executive duties, not legislative duties.
Congress reserved to itself the power to
alter, amend, or abolish such laws as it had
not interiered with Where then does
military commander find his authority to
abolish, modify, CONTROL or supersede any
one of these laws?


The Attorney General proceeds to specify
some of the acts of military commanders,
in which, in his opinion, they have ex-
ceeded their authority under the law In
one district the Judge of one of the Grim
inol Tourfu bao haan ann, il,r1 1ao Al
The act of Congress gives authority in
cases Of necessity to military commanders
to transfer the jurisdiction of Criminal
Court to a military tribunal. No other
authority can lawfully be exercised over
them. No appointee of a military COM
mander, in place of a Judge superseded,
can lawfully exercise authority either as
| civil magistrate or a member of a military
| tribunal.


The Commanding General Of the District
of North and South Carolina construes the
act Of Congress as placing him upon the
| same footing as regards power and au~
thority, as Congress itself He assumes the
paramount authority of the United States,
at any time, to abolish, modify, control, or
supersede, as vested in him as fully as re-
served TO Congress. He assumes directly or
Indirectly the authority of the State Legis-
lature, executive aud judiciary, and in
] effect declares, "I am the State"


In the Attorney Generals opinion there
| are executive duties to be performed
which cannot safely be avoided or delayed.
! These conditions, notwithstanding their as
sumption, are not in any sense clothed
with paramount authority. They treat as
subordinate executive officers responsible
for the proper execution of these duties,
and upon him rests the final responsibility
and duty remains with him to see that they
execute their duties faithfully and accord
ing TO law.


In support of this opinion he cites the
opinion of the Supreme Court, delivered
by the Chief Justice on dismissing the mo-
tiOn Of the State of Missouri for leave to
file bill against the President.


He then proceeds to reply to certain
questions propounded from one of the mill
tary districts touching the power of the
military commanders to constitute military
tribunals for the trial of offenders. Whilst
the act does not in terms displace the regu.
lar criminal courts of the States, it does
| give power to the military commander
when in his judgement the necessity arises
TO take the administration of criminal case.
in his own hands, and to try and punish
offenders by means of military commissions
He expresses grave doubt as to the consti
tutiOnality Of the provisions of this law il
time of peace. He cites in support of hi
position the opinion of majority of tht
Supreme Court, delivered by Chief Justic,
Chase.


He says nothing short of an absolut,
necessity can give any color of authority t
a military commander to call into exercis,
such power. 1t is a power the exercis
of which may involve him and every on,
concerned in the gravest responsibility
The occasion for its exercise should be re
ported at once to the Executive for sucl
instructions as may be deemed necesssrl
and proper.


The Attorney General is clearly Of tn,
opinion that military commissions can TAX
cognizance of no offense that has not hap
pened after the law took effect, and tha
they have jurisdiction to try and punish fol
acts not made crimes or otfenses by Fede
raj or State law.


There is no Legislative power given un
der this military bill to establish a ney
criminal code as to crimes and ofiense
against the laws of the United States. Tn
military authority can take no cognizanc,
Of them, nor IN any way interfere with th'
regular administration of justice by the ap
prcpriate courts.


The Attorney General supplements thi
opinion with synopsis from his forme
opinion giving the classes disfranchise,
under the military bill.





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