ITMI.H: IMKT.MI. 



661 



lion to one party by violating the rights of the 



i roniiileiii ih.K tln-^o military ofliccrH, in all 



they have done, have supposed that they li.nl I'll II 



iin-ir action. Their education and train- 

 been of the kind to fit them fbr thedeli- 

 ,d .lillictilt task of L'hini; construction : 

 ilial now under consideration. Ti< 

 i -linn, und nearly all of them have asked 

 ..ii. to solve their own doubts, and to 

 i i > tin-in u safe ground for the performance 

 nf Ilii-ir iliu 



Tlii-ro can be no doubt as to the rule of construc- 

 which we must interpret this grunt 

 id" power. It i-> u grant of power to military au- 

 thority, ovi-r civil rights and citizens, in time of 

 1 1 is a new jurisdiction, never granted be- 

 \ which, in certain particulars and for certain 

 purposes, the established priuciple, that the military 

 .shall he subordinate to the civil authority, i-- r> - 

 .. The rule of construction to be applied to 

 siu-h it grant of power is thus stated in Dwarris on 

 <, page 652 : "A statute creating a new juris- 

 diction ought to be construed strictly. 



(iiiiijcd 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 clauses, wo must look to the context and 

 to tin- whole law, that general clauses are to be con- 

 t '-oiled by particular clauses, and that such construc- 

 tion is to be put on a special clause as to make it 

 harmonize with the other parts of the statute, so as 

 ul repuicn-iucy, I proceed to the construction 

 of this part of 1 the act. 



To consider, then, in the first place, the terms of 

 the grant. It is of a power to protect all persons in 

 their rights of person and property. It is not a 

 power to create new rights, but only to protect 

 those which exist and are established by the laws 

 under which these people live. It is a power to pre- 

 . not to abrogate ; to sustain the existing frame 

 of social order and civil rule, and not a power to in- 

 troduce military rule in its place. In effect, it is a 

 police power, and the protection here intended is 

 protection of persons and property against violence, 

 unlawful force, and criminal infraction. It is given 

 to meet the contingency, recited in the preamble, of a 

 want of " adequate protection for life and property," 

 and the necessity also recited, "that peace and good 

 order should be enforced." 



This 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 suppression of insurrection, disorder, and 

 violence, and by the punishment, either by the 

 agency of the State courts or by military commis- 

 sioners, when necessary, of all disturbers of the pub- 

 lic 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 provides for a speedy. 

 rial of the offender, forbids the infliction of cruel and 

 unusual punishment, and requires that sentences of 

 military courts, which involve the liberty or life 

 of the accused, shall have the approval of the com- 

 manding general, and, as to a sentence of death, the 

 approval of the President, before execution. 



All these special provisions have reference to the 

 preservation of order and protection against violence 

 and crime. They touch no other department or 

 function of the civil administration, save only its 

 criminal jurisdiction, and even as to that the clear 

 meaning of this act is, that it is not to be interfered 

 with by the military authority, unless when a neces- 

 sity for such interference may happen to arise. 



I see no authority, nor any shadow of authority, 

 for interference with any other courts or any other 

 jurisdiction than criminal courts in the exercise of 



criminal jui isdictioii. Tlic exit'mii civil authority in 

 all its olhi-r depai tnn-nt -, ].--M.iti\r, executive, and 

 judicial, is left untouched. '1 IMTC in no pro\ 

 even under tin- ph-a of necessity, to CMtobluh, br mil- 

 nthoritY. OOUrta '"' tribunals for the trial of 

 >r for the protection of such civil rights 

 ni pei -on or property as come within tin 

 of <-i\il courts as eoiitradiMinguished from criminal 

 courts. In point of fact tin-re was no foundation for 

 Mich u grant of power, Cor tin Chil Rights net ami tin- 

 Freednn-n's Bureau act, neither of which if super- 

 M-ded liv this act, made ample provision for tin- pro- 

 tection i.f all merely eh il rights where the laws or 

 courts of these States might fail to give full, impar- 

 tial protection. 



I lind no authority anywhere in this act for the re- 

 moval by the military commander of the proper offi- 

 cers of a State cither executive or judicial, or the 

 appointment of persons to their places. Nothing 

 short of an express grant of power would justify the 

 removal or the appointment of such an officer. There 

 is no such grant expressed or even implied. On the 

 contrary, the act clearly enough forbids it. Their 

 regular State officials, duly elected and qualified, are 

 entitled to hold their offices. They, too, have rights 

 which the military commander is bound to protect, 

 not authorized to destroy. 



We find in the concluding clause of the sixth sec- 

 tion of the act that these officials are recognized, and 

 express provision is made to perpetuate them. It is 

 enacted that "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 such provisional governments who would be 

 disqualified from holding office under the provisions 

 of this act." 



This provision not only recognizes all the officers 

 of the provisional governments, but, in cases of va- 

 cancies, very clearly points out how they are to be 

 filled ; and that happens to be in the usual way, by 

 the people, and not by any other agency or any other 

 power, either State or Federal, civil or military. 



I find it impossible under the provisions of this act 

 to comprehend such an official as a governor of one 

 of these States appointed to officeliy one of these 

 military commanders. Certainly he is not the gov- 

 ernor recognized by the laws of the State, elected by 

 the people of the State, and clothed as such with the 

 chief executive power. Nor is he appointed as a mil- 

 itary governor tor a State which has no lawful gov- 

 ernor, under the pressure of an existing necessity, to 

 exercise powers at large. The intention, no doubt, 

 was to appoint him to fill a vacancy occasioned by a 

 military order, and to put him in the place of the re- 

 moved governor, to execute the functions of the office 

 as provided by law. 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 the governor is equallv true as 

 to all the other legislative, executive, and judicial 

 officers of the State. If the military commnnder can 

 oust one from his office, he can oust them all. If he 

 can fill one vacancy he can till all vacancies, and thus 

 usurp all civil jurisdiction into his own hands, or 

 the hands of those who hold their appointments from 

 him, and subject to his power of removal, and thus 

 ite the very right secured to the people by this 

 act.. Certainly this 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 peo- 

 ple, and it must be preserved. 



I must not be understood as fixing limits to the 

 power of the military commander in case of an actual 

 insurrection or riot. It may happen that an insur- 

 rection in one of these States may be so general and 

 formidable as to require the temporary suspension 

 of all civil government, and the establishment of mar- 

 tial law in its place. And the same thing mnv be 



