662 



PUBLIC DOCUMENTS. 



true as to local disorder or riot in reference to the 

 civil government of the city or place where it breaks 

 out. Whatever power is necessary to meet such 

 emergencies, the military commander may properly 

 exercise. I confine myself to the proper authority 

 of the military commander where peace and order 

 prevail. When peace and order do prevail, it is not 

 allowable to displace the civil officers and appoint 

 others in their places under any idea that the mili- 

 tary commander can better perform his duties and 

 carry out the general purposes of the act by the 

 agency of civil officers of his own choice rather than 

 by the lawful incumbents. The act gives him no right 

 to resort to such agency, but does give him the right 

 to have "a sufficient military force" to enable him 

 "to perform his duties and enforce his authority 

 within the district to which he is assigned." 



In the suppression of insurrection and riot, the 

 military, commander is wholly independent of the 

 civil authority. So, too, in the trial and punishment 

 of criminals and offenders he may supersede the civil 

 jurisdiction. His power is to be exercised in these 

 special emergencies, and the means are put into his 

 hands by which it is to be exercised, that is to say, 

 "a sufficient military force to enable such officer to 

 perform his duties and enforce his authority," and 

 military tribunals of his own appointment to try and 

 ' punish offenders. These are strictly military powers, 

 to be executed by military authority, not by the civil 

 authority, or by civil officers appointed by him to 

 perform ordinary civil duties. 



If these emergencies do not happen, if civil order 

 is preserved, and criminals are duly prosecuted by 

 the regular criminal courts, the military power, 

 though present, must remain passive. Its proper 

 function is to preserve the peace, to act promptly 

 when the peace is broken, and restore order. W hen 

 that is done, and the civil authority may again safely 

 resume its functions, the military power becomes 

 again passive, but on guard and watchful. 



This, in my judgment, is the whole scope of the 

 military power conferred by this act, and in arriving 

 at this construction of the act I have not found it 

 necessary to resort to the strict construction which 

 is allowable. 



What has been said indicates my opinion as to any 

 supposed power of the militarv commander to change 

 or modify the laws in force, 'f he military commander 

 is made a conservator of the peace, not a legislator. 

 His duties are military duties, executive duties, not 

 legislative duties. He has no authority to enact or 

 declare a new code of laws for the people within his 

 district under any idea that he can make a better 

 code than the people have made for themselves. The 

 public policy is not committed to his discretion. The 

 Congress which passed this act undertook, in certain 

 grave particulars, to change these laws, and these 

 changes being made, the Congress saw no further 

 necessity of change, but were content to leave all the 

 other laws in full force, but subject to this emphatic 

 declaration, that as to these laws, and such future 

 changes as might be expedient, the question of expe- 

 diency and the power to alter, amend, or abolish, 

 was reserved for "the paramount authority of the 

 United States at any time to abolish, modify, control, 

 or supersede the same." Where,'then, does a mili- 

 tary commander find his authority "to abolish, mod- 

 ify, control, or supersede" any one of these laws? 



The enumeration of the extraordinary powers ex- 

 ercised by the military commanders in some ofj the 

 districts would extend this opinion to an unreasona- 

 ble length. A few instances must suffice. 



In one of these districts the Governor of a State 

 has been deposed under a threat of military force, 

 and another person called a Governor has been ap- 

 pointed by the military commander to fill his place ; 

 thus presenting the strange spectacle of an official 

 intrusted with the chief power to execute the laws 

 of the State whose authority is not recognized by the 

 laws he is called upon to execute. 



In the same district the judge of one of the crimi- 

 nal courts of the State has been summarily dealt 

 with. The act of Congress does give authority to the 

 military commander, in cases of necessity, to trans- 

 fer the jurisdiction of a criminal court to a military 

 tribunal. That being the*specific authority over the 

 criminal courts given by the act, no other authority 

 over them can be lawfully exercised by the military 

 commander. But in this instance the judge has, by 

 military order, been ejected from his office, and a 

 private citizen has been appointed judge in his place, 

 by military authority, and is now in the exercise of 

 criminal jurisdiction " over all crimes, misdemeanors, 

 and offences" committed within the territorial juris- 

 diction of the court. This military appointee is cer- 

 tainly not authorized to try any one for any offence 

 as a member of a military tribunal, and he has just 

 as little authority to try and punish any offender as 

 a judge of a criminal court of the State. 



It happens that this priyate citizen, thus placed on 

 the bench, is to sit as the sole judge in a criminal 

 court whose jurisdiction extends to cases involving 

 the life of the accused. If he has any judicial powei 

 in any case, he has the same power to take cogni- 

 zance of capital cases, and to sentence the accused to 

 death, and order his execution. A strange spec- 

 tacle ! where the judge and the criminal may very 

 well " change places; for if the criminal has unlaw- 

 fully taken life, so too does the judge. This is the 

 inevitable result, for the only tribunal, the. only 

 judges, if they can be called judges, which a military 

 commander can constitute and appoint under this 

 act, to inflict the death penalty, is a military court 

 composed of a board, and called in the act a " mili- 

 tary commission." 



I see no relief for the condemned against the sen- 

 tence of this agent of the military commander. It is 

 not the sort of court whose sentence of death must 

 be first approved by the commander and finally by 

 the President ; for that is allowed only where the 

 sentence is pronounced by a "military commission ;" 

 nor is it a sentence pronounced by the rightful court 

 of the State, but by a court and by a judge not 

 lothed with authority under the laws of the State, 

 but constituted by the military authority. As the 

 representative of this military authority, this act for- 

 bids interference " under color of State authority" 

 with the exercise of his functions. 



In another one of these districts a military order 

 commands the Governor of the State to forbid the 

 reassembling of the Legislature, and thus suspends 

 the proper legislative power of the State. In the 

 same district an order has been issued " to relieve 

 the treasurer of the State from the duties, bonds, 

 books, papers, etc., appertaining to his office," and 

 to put an "assistant quartermaster of the United 

 States volunteers " in place of the removed treasurer, 

 the duties of which quartermaster-treasurer are thus 

 summed up: He is to make to the headquarters of 

 the district "the same reports and returns required 

 from the treasurer, and a monthly statement of re- 

 ceipts and expenditures ; he will pay all warrants for 

 salaries which may be, or become, due, and legiti- 

 mate expenditures for the support of the penitentiary, 

 State asylum, and the support of the provisional 

 State government ; but no scrip or warrants for out- 

 standing debts of other kind than those specified will 

 be paid without special authority from these head- 

 quarters. He will deposit funds in the same manner 

 as though they were those of the United States." 



In another of these districts a body of military 

 edicts, issued in general and special orders regularly 

 numbered, and in occasional circulars, have been 

 promulgated, which already begin to assume the di- 

 mensions of a code. These military orders modify 

 the existing law in the remedies for the collection of 

 debts, the enforcement of judgments and decrees for 

 the payment of money, staying proceedings insti- 

 tuted, prohibiting, in certain cases, the right to bring 

 suit, enjoining proceedings on execution for the term 



