660 



PUBLIC DOCUMENTS. 



punish, or cause to be punished, all disturbers of the 

 public peace and criminals, and to this end he may 

 allow local civil tribunals to take jurisdiction of and 

 try offenders, or~, when in his judgment it may be 

 necessary for the trial of offenders, he shall hare 

 power to organize military commissions or tribunals 

 for that purpose ; and all interference, under color 

 of State authority, with the exercise of military au- 

 thority under this act shall be null and void." 



The fourth section provides " that all persons put 

 under military arrest by virtue of this act shall be 

 tried without unnecessary delay, and no cruel or 

 unusual punishment shall be inflicted ; and no sen- 

 tence of any military commission or tribunal hereby 

 authorized, affecting the life or liberty of any person, 

 shall be executed until it is approved by the officer 

 in command of the district, and the laws and regu- 

 lations for the government of the Army shall not be 

 affected by this act, except in so far as they conflict 

 with its provisions : Provided, That no sentence of 

 death under the provisions of this act shall be car- 

 ried into effect without the approval of the Presi- 

 dent." 



The fifth section declares the qualification of voters 

 in all elections, as well to frame the new constitution 

 for each State as in the elections to be held under 

 the provisional government until the new State con- 

 stitution is ratified by Congress, and also fixes the 

 qualifications of the delegates to frame the new con- 

 stitution. 



The sixth section provides "that until the people 

 of said rebel States shall be by law admitted to rep- 

 resentation in the Congress of the United States, 

 any civil governments vvhich mav exist therein shall 

 be deemed provisional only, and in all respects sub- 

 ject to the paramount authority of the United States 

 at any time to abolish, modify,' control, or supersede 

 the same ; and in all elections to any office under 

 such provisional governments, all persons shall be 

 entitled to vote, and none others, who are entitled 

 to vote under the provisions of the fifth section of 

 this act ; and no person shall be eligible to any office 

 under any such provisional governments who" would 

 be disqualified from holding office under the pro- 

 visions of the third article of said constitutional 

 amendment." 



The duties devolved upon the commanding gen- 

 eral by the supplementary act relate altogether to 

 the registration of voters and the elections to be 

 held under the provisions of that. act. And as to 

 these duties they are plainly enough expressed in 

 the act, and it is not understood that any question, 

 not heretofore considered in the opinion referred to, 

 has arisen or is likely to arise in respect to them. 

 My attention, therefore, is directed to the powers 

 and duties of the military commanders under the 

 original act. 



We see clearly enough that this act contemplates 

 two distinct governments in each of these ten States; 

 the one military, the other civil. The civil govern- 

 ment is recognized as existing at the date of the -act ; 

 the military government is created by the act. Both 

 are provisional, and both are to continue until the 

 new State constitution is framed and the State is ad- 

 mitted to representation in Congress. When that 

 event takes place, both these provisional govern- 

 ments are to cease. In contemplation of this act, 

 this military authority and this civil authority are to 

 be carried on together. The people in these States 

 are made subject to both, and must obey both, in 

 their respective jurisdictions. 



There is, then, an imperative necessity to define 

 as clearly as possible the line which separates the 

 two jurisdictions, and the exact scope of the au- 

 thority of each. 



Now, as to civil authority, recognized by the act as 

 the provisional civil government, 'it covered every 

 department of civil jurisdiction in each of these 

 States. It had all the characteristics and powers 

 of a State government, legislative, judicial, and ex- 



ecutive, and was in the full and lawful exercise of all 

 these powers, except only that it was not entitled to 

 representation as a State of the Union. This exist- 

 ing government is not set aside ; it is recognized 

 more than once by the act. It is not in any one of 

 its departments, or as to any one of its functions, re- 

 pealed or modified by this act, save only in the quali- 

 fications of voters, the qualifications of persons eligi- 

 ble to office, the manner of holding elections, and 

 the mode of framing the constitution of the State. 

 The act does not in any other respect change the 

 provisional government, nor does the act authorize 

 the military authority to change it. The power of 

 further changing it is reserved, not granted, and it is 

 reserved to Congress, not delegated to the military 

 commander. 



Congress was not satisfied with the organic law, or 

 constitution, under which this civil government was 

 established. That constitution was to be changed 

 in only one particular to make it acceptable to Con- 

 gress, and that was in the matter of the elective 

 franchise. The purpose, the sole object of this act 

 is to effect that change, and to effect it by the agency 

 of the people of the State, or such of them as are 

 made voters, by means of elections provided for in 

 the act, and in the mean time to preserve order and 

 to punish offenders, if found necessary, by military 

 commissions. 



We, are, therefore, not at a loss to know what 

 powers were possessed by the existing civil author- 

 ity. The only question is upon the powers conferred 

 on the military authority. Whatever power is not 

 given to the military remains with the civil govern- 

 ment. 



We see, first of all, that each of these States is 

 "made subject to the military authority of the 

 United States " not to the military authority alto- 

 gether, but with this express limitation, " as herein- 

 after prescribed." 



We must, then, examine what is thereinafter pro- 

 vided, to find the extent and nature of the prnver 

 granted. 



This, then, is what is granted to the military com- 

 mander : the power or duty "to protect all persons 

 in their rights of person and property, to .suppress 

 insurrection, disorder, and violence, and to punish, 

 or cause to be punished, all disturbers of the public 

 peace and criminals," and he may do this by the 

 agency of the criminal courts of the State, or, if 

 necessary, he may resort to military tribunals. 



This comprises all the powers given to the military 

 commander. 



Here is a general clause making it the duty of the 

 military commander to give protection to all persons 

 in their rights of person and property. Considered 

 by itself, and without reference to the context and 

 to other, provisions of the act, it is liable, from its 

 generality, to be misunderstood. 



What sort of protection is here meant? What 

 violations of the rights of persons or of property are 

 here intended ? In what manner is this protection 

 to be given ? These questions arise at once. 



It appears that some of the military commanders 

 have understood this grant of power as all-compre- 

 hensive, conferring on them the power to remove 

 the executive 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 officers 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 its appointed officers and 

 agents, to change the existing laws in matters affect- 

 ing purely civil and private rights, to suspend or 

 enjoin the execution of the judgments and decrees 

 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 expediency, the 

 existing relations of the parties to contracts, giving 



