Year: 1867

are here intended? In what man.
ner is this protection to be given?
These questions arise at once.


It appears that some Of the mil
itary commanders have under
stood this grant Of power as all
comprehensive, conferringon them
the power Of removing the exec
utive and judicial officers of the
! State, and to appoint other officers
in their places, to suspend the
legislative power Of the, State, to
take under their control, by Off
GERS appointed by themselves, the
collection and disbursement Of the
revenues of the State, to prohibit
! the execution of the laws of the
State by the agency of it's appoint
ed officers and agents, to change
I the existing laws in matters af-
fecting purely civil and private
rights, to suspend or enjoin the
executions Of judgments and de-
crees of the established =. State
courts, to interfere in the ordinary
administration of justice in the
State courts, by prescribing new
qualifications for jurors, and to
change, upon the ground Of expe-
dicncy, the existing relations Of
the parties to contracts, giving
protection to one party by VIOLA
ting the rights Of the other party.
I feel confident that these mill
tarv officers, in all they have done,
have supposed that they had full.
warrant for their action. Their
education and training have not
been of the kind to fit them for
the delicate and difficult task Of
giving construction to such a sta
tute as that now under consider
alton. They require instruction,
and nearly all of them have asked
for instruction, to solve their own
doubts, and to furnish to them a
safe ground for the performance
of their duties.


There can be no doubt as to the
rule Of construction according to
which we mustinterpret this grant
Of power. 1t is a grant Of power
to military authority, over civil
rights and citizens, in time Of peace.
1t is a new jurisdiction, never
granted before, by which in ocr-
tain particulars and for certain
purposes, the established principle
that the military shall be subordi-
nate to the civil authority, is re-
served. ~,Phe rule Of construction
to be applied to such a grant Of
power is thus stated in DWarris
on Statutes, page 652: "a statute
creating a new Jurisdiction ought
to be construed strictly"


Guided by this rule, and in the
light of other rules Of construction
familiar to every lawyer, especially
of those which. teach us that in
giving construction to single clau-
ses. we must look to the context
and to the whole law; that gene
raI clauses are to be controlled by
particular clauses, and that such
construction is to be put on a spe-
cial clause as to make it harmonic
with the other parts Of the statute,
so as to avoid repugnancy. lpro-
ceed to the construction OF this
part Of the Act.


10 consider, then. in the first
place, the terms Of the grant. 1t
is of a power: to protect all persons
in their rights Of person and prop
erty., 1t is not power to. create
new rights, but only to protect
those which exist and are estab-
ished by the laws under which
these people live, It is a power
to preserve, not to abrogate; to
to sustain the existing frame of
social order and civil rule, and not
a power to introduce military rule
in its place. In effect, it is a pO-
lice power, and the protection here
intended is protection Of person
and property against violence, un-
lawful force, and criminal infrac-
ton. It is given to meet the con-
tingency recited in the preamble,
ola want Of "adequate protection
for life and property" and the ne
cessity also recited, "that peace
and good order should be enforced.


The 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 sup
preston Of instruction, disorder
and violence, and by the punish
ment. either by the agency Of the
State courts, or by military com
missioncrs, when necessary, Of all
disturbers Of the public peace and
criminals and it is declared that
all interference, under color OF
State authority, with the exercise
Of this military authority, shall be
null and void.


The next succeeding clause pro
vides for a speedy trial Of the Of
fender, forbidS the infliction Of
cruel and unusual punishment,
and requires that sentences OF
these military courts which IN
voIve the liberty or life OF the ac-
"used shall have the approval OF