Year: 1867




trary the act clearly enough forbids it
The regular State officials duly elected
and qualified are entitled TO hold their
Offices. They too have rights which the
military commander is bound to respect,
and are not authorized to destroy. find
it impossible under the provisions ofthis
act TO comprehend such an official rs q
Governor of one of these States appoint.
ed to office by one ofthese military com
manders. The law takes no cognizancc
of such an official, and he is clothed with
70 authority or color of authority. What
is true as to the Governor is equally true
as to all the other legislative, executive
and judicial officers of the State Ger
tainly the act is rigorous enough in the
power which it gives, but with all its Sc
verify the right of electing their own of.
ficcrs is still left with the people. and it
must be preserved. This opinion is con-
fined to the proper authority when peace
and order prevail In case of actual in
surrection or violence, and those become
so formidable as to require the temporary
suspension of all civil government and
the establishment of martial law in its
place, whatever power is necessary to
meet the emergency, the military com
mander may properly exercise it. In the
suppression, the insurrection and riot the
military commander, is wholly indie
pendent of the civil authority. SO too
in the trial of criminals and offenders, he
may supersele their jurisdiction. If civil
order is preserved and criminals are duly
prosecuted by the regular Criminal
Courts, the military power, though pres
ent, must be passive. Its proper func-
ton is to preserve the peace, and to act
promptly when the peace is broken, and
restore order. When that object is done,
then civil authority may again safely re-
sumo its functions, the military power be-
comes again passive, but on guard and
watchful This is the whole scope of the
military power conferred by this act
The military commander is made con-
servator of the peace, not legislator
His duties are military duties, executive
duties, not legislative duties. Congress
reserved to itself the power to alter,
amend, or abolish such laws as it had
not interfercd with Where, then, does
military commander find his authority
to abolish, modify, control or supersedc
any one of these laws.


The Attorney General proceeds to
specify some of the acts of the military
commanders in which, in his opinion,
they have exceeded their authority under
lny cuIR6all Hcdifti5H Htag "paeh" sfhmhsriiy ha ~
dealt with. The act of Congress gives
authority in cases of necessity for the
military commanders to transfer the ju-
risdiction ofa criminal court to military
tribunal. No other authority can law
| fully be exercised over them No ap-
pointee Of q military commander, in place
of a Judge superseded, can lawfully excr-
else authority, either as civil MAGISTRATE
or member of u military tribunal. The
commanding general of the department Of
South Carolina and Mississippi construes
the act of Congress as placing him upon
the same footing, as regards power and
authority, as Congress itself. He as
sumed the paramount authority of the
United States at any time to abolish,
modify, control or supersede, as vested
in him as fully as reserved to Congress.
He assumes, directly or indirectly, the
authority of the State legislative, execu-
tive and judicial, and in effect declares,
II am the State"


In the Attorney Generals opinion,
there are executive duties to be perform.
ed which cannot safely be avoided or de-
layed. These commanders, notwthstand.
ing their assumptions, are not in any
sense clothed with paramount authority.
They treat as subordinate executive of.
fcers responsible for the proper execu.
tion OF their duties and upon him rests
the final responsibility. The duty remains
with him to see that they execute their
duties faithfully and according to law
In support of this opinion he cites the
opinion Of the Supreme Court, delivered
by the Chief Justice in dismissing the
motion of the State of Mississippi for
leave to file a bill against the President.
He then proceeded to reply to certain
questions propounded from one of the
military districts the power of military
commander to constitute military tribu-
nails for the trial Of offenders. Whilst
the act does not in terms displace the
regular criminal court of State, it does
give power to the military commandes,
when in his judgment, the necessity arries
to take the administration Of criminalllaw
into his own hands, and to try and pun.
ish the offenders by means of Military
Commission He expressed grave doubts
upon the constitutionality Of this pro-
vision Of the law in time OF peace, and
cites in support Of his position the opin-
ion ofthe minority of the Supreme Court,
delivered by Chief Justice Chase. He
says nothing short of an absolute neccs-
sity can give any color of authority to q
military commander TO call into exercise
such power 1t is a power the exercise
of which may involve him and every one
Ia,