The Newberry herald. (Newberry, S.C.) 1865-1884, June 26, 1867, Image 1
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VOL. III. WEDNESDAY MORNING, JUNE 26, 1867. NO._2
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Opinion of the Attorney-Gen
eral as to the Powers of the1
Military Commanders.
ATTORNEY-GENERAL'S OFFICE,
June 12. 1867.
The President.
Si: On the 24th ultimo, I had
the honor to transmit for your
consideration my opinion upon
some of the questions arising under
the reconstruction Acts therein
referred to. I now proceed to give
my opinion on the remaining ques
tions, upon- which the military
commanders require instructions.
First, as to the powers and
duties of these commanders.
'Ihe original Act recites, in its
preamble, that "no legal State
Governieuts or adequate )rote
tion for life or property exist' in
those ten States, and that it is I
necessary that peace antl good
order should be enforced" in those
States "until loy<l and republican
State Governments can be legally
established."
The first and second sections
divide these States into five mili
tary districts, subject to the miii
tary authority of the United States
as thereinafter prescribed, and
make it the duty of the President
to assign, from the officers of the
army, a general officerto the com
mand of each district, and to fur
nish him with a military force to
perform his duties and enforce his
authority within his district.
The third section declares. "That
it shall be the duty of each officer
assigned as aforesaid to protect all
persons in their rights of peron
and property, to suppress insur
rections, djisorder and violence.
and to punish; or cause to be pun
ished, all disturbers of the public
peace and criminals ; and, to this
end, he may allow local civil ibu
nals to take jtrisdiction of and try
offenders, or, when ii his judg
ment it may be necessary for the
trial of offenders, he shall have
- power to organize military comn
missions or tribui..ls for that pur
pose; and all interference cunder
color of State authority with the
exercise of military authority
under this Act shall be null and
void."
The fourth section p)rovides
"that -all persons put uder mili
t.ary arrest by virtue of this Act
shall be tried without unnecessary
delay, and no cruel or unusual
punishment sh all be inflicted ; and
ng sentence of any miilitary corn
inission or.tib,anal hereby authori-.
zed, affecting the life or liberty of.
any person, shall be executed
until it .is approved by the officer
in command of the distriet, and
the laws and regulations for the'
government of the army shall not
be affected by this Act, except in
so far as they conflict with its pro.
visions: Provided, That no sen
tence of death under the provisions
of this Act shall be carried into
effect without the approval of the
President."
The fifth section dchcures the
qualification of voters in all elec
tions, as. well to frame the, new
constitution for each State as in
the elections, to be held under the
provisional Gover,nment until the:
new State constitution. is ratified
by congress;' and also fixes the
qualifications of the delegates to,
frame the new constitution.
The sixth section provides -That
until the people of the said rebel'
States shall be by law adimitted to
representation i1n the Congress of.
the UJnited States. any civil gov-<
ernmnents which may exist therein
shall be deemed provisional only,
and in all respects subject to the
paramount authority of the United
States, at any time, to abolish,
modlify, control or supereede the
same ; and in all elections to any
ofiice under such provisional gov
ernments. all persons shall be en
titled 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 governmen ts who
would be disqualified from holding~
oftice under the provisions of the
third article of' said con1stituionial
amend ment.
The duties devolved upon the
commanding general by the sun
plementary Act relate altogether
to the registration of v-oterts and
provisions of that Act. And as to
these d'ities, they are pla.-iy
enough expressed in the Act ; and
it is not understood that any ques
tion 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 government is
recognized as existing at the date
of the Act. The military govern
ment is created by the Act. Both
are provisional, and bo-th are to
continue until the new State eon
stitution ig#ram}el and the State
is admitted to representation in
Congress. When that event takes
place, both these provisional gor
rnments are to cease. In con
tem'plation of this Act. this mili
tarv and this civil authority are
to be carried on together. The
people in these States are made
suject to both. an(d must obey
oth. in their respective jurisdie
There is. then. an1 imperative
3ccessity to define as clearly as
ossible the line which separates
he t-wo jurisdictions and the
exact scope of the authority of
ach.
Now as to the civil authority,
-cogniz'ed by the Act as the pro
isional civil government, it cover
d every lepartment. of civil juris
lietion in each of these States. It
:ad all the characteristics and
)owers of :a State government
egislative, judicial and executive
nd was in the full and lawful
?xercise oT'all these powers, ex
iept only lhat it was not entitled
:o representation as a State of the
nicn. This existing govern
ment is no set aside; it is recog
iized more than once by the Act.
[t is not in any one of its depart
mrents. or. as to any one of its
mcitions, repealed or modified by
:his Act, save only in the qualin
ations of voters, the qualifications 1
>f persone&.eligible to office, the
anner ofiolding elections, and 1
he mode'of framing the constitu
ion of the State. The Act does
iot in any other respect change i
he provisional government, nor .
loes the Act authorize the miili
ary authority to change it. The
>ower of further changing it is' 1
eserved, n ~'granted, and it is
eserved to Congress, not dele
rated to the military commander.
Congress was not satisfied with<
ho organic law or constitution un
er which this civil goveri nment
vas established. That constitu
ion was to be chanIged. in unlyi:
mel particula.r to make it accept
Wbe to Congress, and that was in
he mattsr of the elective fran
hise. The purpose, the sole ob
ot. of thMs'Aet is to effect that
:hange, and to effect it by the
Lgency of the people of the State,
r such of them as are made vo
:ers, by. m'enns of elections provi
led for in the Act, and in thej
neautme to preserve order and to
>unish offenders, if found neces- 1
~ary, by military commissions.
We are, therefore, not at a loss
o know what powers are pos
~essed by the existing. civ il au-1,
hority. The only question is .up
n the powers conferred on the
mitary avuthority. Whatever
power is not given to the milit.ary
remains with the civil government.
We see, 'first of all, that each of
these States is "made subject to
the military authority of the Uui
ted States"--not to the military
authority altogether, but with this
express limitation, "as hereinafter
prescribed.'
We must. then, examine what
is therein after provided, to find
the extent and natuire of the power
grantedi.
This, then, is what is granted to
the military commander: The
power or duty sto-protect all per-1
sons in their rights of person and
proprty, to suppress insurrection
lisorder and violence, and to pun
.sh, or cause to be punished, all
iiistubers of the publie peaCe and
-'iina and he mPay do this by\
the agency of the ciminai our ts
af the State. or, if necessary, he
may have resort to military tribu
as.
This comprises all the powers
given to the military commander.
Here is a general clause makiing
it the duty of the military com-g
mander to give protection to all
persons in their riht of peso
and proCperty. (ouasile 'y i
andl without reference to the~ en
text and to other provisimons of the
Act it is liable, from its gena- 1
meant What violatibns of the
rights of persons or of property
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, conferring on tben
the power of removing the exec
utive and judicial officers of the
State, and to appoint otljer eficers
in their places, to suspend the
legislative power of the State. to
take under their control, by oili
cers appointed by themselves, the
collection and di"bursement of the
revenues of the State, to prohibit
the execution of the laws of the
State by the agency of its appoint
(d officers anl agents, to change
the existing laws in niatterS at
Fecting purely civil and prnivate
rights, to suspend or e1njoin11 the
cxecutions of judgments and de
-rees of the established State
ourts, to interfere in the ordinary
administration of justice in the
State courts, by prescribing new
analifications for jurors. and to
lange. upon the ground of" expe
iency, the existing relatioins of
tle parties to coitriacts. givig
irotctioil to onie party l)y viola
in(g the rights of the other party.
I feel confident that these mili
tarv officers. in all they have done,
have supposed- that they had full
-arrant for their action. Their
ducation and training have not
been of the kind to fit them for
he delicate and difficult task of
iving construction to such a sta
.ute as that now under consider
ition. They require instruction,
d nearly all of them have asked
or instruction, to solve their own
loubts, and to furnish to them a
safe ground for the performance
)f their duties.
There can be no doubt as to the
"ule of construction according to
vhich we must interpret this grant
polwer. It is a grant of power
o military authority, over civil
ights and citizens, in time of peace.
Lt is a new jurisdiction, never 1
grated before, by which in ccr
ain particulars and for certain
>urposes, the established principle
hat the military shall be subordi
ate to the civil authority, is re
erved. The rule of construction 1
:o be applied to such a grant of
>ower is thus stated in Dwarris 1
) Statutes, page 652: "A statute 1
:reating a new jurisdiction ought
:o be construed strictly."
Guided by this rulk, and in the1
ight of oth'er rules of construction
~amiiar to every lawyer, especially
f those which teach us that in
iving construction to single clau-1
es we must look to the context
i1d( to the whole law ; that gene-.
:il clauses are to be controlled byv
~articular claoses, arnd that such1
~onstuction is to be put on a spe
ial 'elause as to make it harmomize
hii the other parts of the statute,
oas to avoidl repugnancy. I pro
~eed to the construction of' this
art of the Act.
To consider, then,. ini the first
>lace, the terms of the grant. It
s of a power to protect all persons
u their rights of' person and prop
~rt.. It is not a power to create
iew rights, but only to protect
hose which exist and are estab
ished by the laws under which
hese people live. It is a power
o preserve, not to abrogate; to
o sustain the existing frame of
;ocial order and civil rule, and not
nower' to introduce military rule
nits place. In effect. it isap
ice power, and the protection here
ntended is protection of person
md property against violence, un
awful force, and criminal infrac
;ion. It is given to meet the con
:ingency recited in the preamble,
>a want of "adequate protection1
'or lif'e and property," and the ne
:essity also recited, "that peace
md g'ood order should be enforced.
The construction is made more
ipparent when we look at the
mmediate context, and see in
vhat mode and by what agency
his protection is to be secured.
[his duty or power of protection9
s to be performed by the sup
ressionl of insurrection, disorder
d violence, and by the punish
nent. either by the ag'ency of the(
tate.courts, or byv military comn-t
nssioner's, when necessar'y, of all
listurbers of' the public peace and
:riminals :and it is dleclared that
1l interference, under color of
state authority, with the exercise
f this military authority, shall be
mil and void.t
The next succeeding clause prO
:des for a speedy trial of' the of- t
'ner, f'orbids the infliction of
tri l and unusual punishirent.
d( requires that sentences of
hese military courts which in
el'.e the liberty or life of' the a'
the commanding general. and as
to a sentence of death, the appro
val of the President. beture tXeci
tion.
All these special provisions have
reference to the preservation Of
order, and protection against vio
lence and crime. They touch no
other department or function of
the civil administration, save on
Iv its criminal jurisdiction, and
even as to that. the clear meaning
of this Act is, thft it is not to be
interferred with by the militarv
authority, unless when a necessi
ty for such interference may hap
pen to arise.
I see no authority, nor any
shadow of authority. for interfer
ence with any other courts or any
other jurisdiction, than criminal
courts in the exercise of eriiiaitl
jurisdiction. The existing civil
authority in all its other depart
menlts-le"(islative, cN'cutive and
juicial-is left untouched. There
is no provision, even under the
plea of necessity. to establish, by
military authority, courts or tri
bunals for the trial of civil cases.
or for the protection of such civil
rights of person or property as
come within the, cognizance of
tivil courts as contra-distinguish(
from criminal cotirts. In point
o fftct. there was no foundat ion
for such a grant of powor, ior the
civil rights Act and the Freed
men's Bureau Aet, neither of which
is superceded by this Act, made
ample provision for the protection
Df all merely civil rights, where
the laws or courts of these States
ight fail to give full, impartial
protection. .
I find no authority anywhere in
this Act, for the removal, by the
military commander, of the prop
,r officers of a State, either exe
utive or judicial, or the appoint
ment of such an officer. There is
rio such grant expressed or even
mplied. On the contrary, the
Act clearly enough forbids it. The
Legular State officials duly elected
md qualified are entitled to hold
-heir offices. They, too, have
:ights which the inilitanry cor
:nander is bound to protect, not
iuthorized to destroy.
We find in the concludinr clause
f the sixth section of the Act
that these officials are recogni
ed, and express provision is made
:o perpetuate them. It is enac
ed that "in all elections to any
)ffice under such provisional gov
3rnments, all persons shall be en
:itled to vote, and none others,
who are entitled to vote under
the provisions .of the fifth section
>f this Act ; and no person shall
0 eligible to any office under such
roisiona governments who
voul bedisqualified from hold
ng office under the provisions of
:his A ct'
This provision not only recog
iizes all the officers of the provis
onal governments, but, in ease of
racancies, very clearly points out
lo they are to be fi!lbd ; and
that happens to be in the usual
way by the people, and not by
iy other agency or any other
ower, either State or Federal.
ivil or military.,
I find it impossible under the pro.
'isions of this act to comnprehenad such
m official as a Governor of one of these
tates appointed to office by one or ths
ilitary Commanders. Gertainly he is
not the Governor recognized by the laws
>f the State, elected by the people of the
state, and clothed as such .with the chief
xecutive power. Nor is he appointed
L a Military Governor for a State which
ias no lnwful Governor, under the nres
ure of an existing necessity to er-a cisc
owers at large. The intention, no
loubt, was- to appoin't him to fill a Va
ancy occasioned by a military order,
md to put him in the place of the re
ioved Governor, to execute the functions
f the otlice as provided by law. The
aw takes no cognizance of such -an offi
:ial, and he is clothed with no authority
>r color of authority.
What is tt'uc as to the Governor is
~qually true as to all the ot her legislative,
,xeutve, and judicial officers of the
tate. If the Military Commander can
>st one from his office, he can oust themi
tl. If lhe can jill ore vacancy lhe can fill
ll vacancies, and thus usurp all civil
urisdiction into his own hands, or the
lands of those who hold their appoint
nents from him and subject to his power
>f removal, and thus frustrate the very
.ight secured to the people by this act
~ertaily this act is rigorous enough in
he power whl~ich it gives. With al l its
everity, the righit of electing thei r own
>flicersis still '.eft with the peopl~e, and it
nust be preserved.
I must not be understood as fixing
iits to the power of the Military Corn
nander in case of an actu:il insurrection
>r riot. It may happen that on insurrec
ion in one of these States may he so
;eneral and formidable as to require the
emiporary suspension of all civil govern
nenit, and the establi..hmn;nt ef mairtial
a in its place. A' d the same tin
na ty be true as:1 to IoeU l d isrier r ri t
r~eference to the c'iVil goverInment of the
ity or pla:ce where it breaks out. W hat
vr power isnecessary to mneet !uth emerr
properly exercise. I confine myself to
the proper authority of the Military Com
nonder 'rhere peace and order prevails.
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 Military 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 incum
bents. The act gives him no right to
resort to such agency, but does give hin
the right to have "a sufficient n:ilitary
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 ofcrimi
nals and offenders, he may supersede the
civil jurisdiction. His power is to be
exercised in these special emergencies,
and the nears are put into his hands by
which it is to be exvri:d. that is to say,
"a sufficient military force to enable such
officer to perform Lis 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 au
thority, not by the civil authority or by
civil oficers appointed by him to perform
ordinary civil duts.
If these emergencies do not happen, if
civil order is preserved, and criminals
are duly prosecuted by the regular crimi
nal courts, the military power though
present must rernain passive. Its proper
function is to preserve the peace, to act
promptly when the peace is broken, and
restore o,rdcr. When that is done and
the civil authority may again safely re
sume its fuctions, 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 construe
tion of the act, I have not found it neces
sar to resort to the strict construction
which is allowable.
What has been said, indicates
my opinion as to any supposed
power of the military commander
to change nr modify the laws in
force. The military commander
is made a conservator of the peace,
not a legislator. His duties are
executive duties, not legislative du
ties. He has no authority to
enact or declare a new code of'
laws for the people within his dis
trict under any iLea that he can
make a better code than the peo
ple have made for themselves.
The public policy is not commit
ted to his discretion. The Con
gress which passed this Act un
dertook in certain grave particu
lars to change these laws, and
these change 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 emphat
ic declaration, that as to these
laws and such future changes as
might be expedient, the question
of expediency and the power to
alter-, amend or abolish, was re
served for 'the paramount au
thority of the United States at
any ti~me to abolish, modify. conk
trol or supereede the same.
Where, then, does a military comn
mander find his authority "to abol
ish, modify, control or supercede'
any one of these laws ?
The enumeration of the extra
orinary powers exercised by the
military commanders in some of
the districts would extend this
opinion to an unreasonable length.
A few instances must suffice.
In one of these districts, the
Governor of a State has been de-]
posed uder a threat of military
frce, and another person, called a
governor, has been appointed by
the military commander to fill his
place ; thus presenting the strange
spetacle of an official entrusted
with the chief power to execute
the laws of t'he State, whose au
thority is not recognized by the
laws he is called upon to execute.
In the same district, the judge
of one of the crimirial courts of
the State has been summari
dealt with. The Act of Congress
does give authority to the milita
rv commander, in cases of necessi
tr. to iransfer the jurisdiction of
a' riminal court to a military tri
hunal. That being the specific
authority over the criminal courts
ivenr hv the Act, no other author
Itv over them can be lawfully ex
ecised by the military comm an
ier. But in this instance, the
judge has, by military order, been
eeetd from his office, andapr
vale citizen has been appointed
ind&ge in his pla-e by military au
thoity, and is now in the exercise1
of criminal jurisdiction "over all
crimes, misdemeanors and offen
es" committed within the terri
toial jurisdiction - of the court.
This military appointee is certain
lv not authorized to try any one
o any offnce as a member of aj
military tribunal, and he has just
slittle authority to try and pun-t
h an V oifi'nderas a judige of a
criminal court of the State. (
Tt happens that this privatt cit-.
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.;
power in any case, he has the
same power to take cognizance of
capital cases, and to sentence_ the
accused to death, and order his
execution. A strange spectacle !
where the judge and the criminal
may very well "chcange places ;'
for if the criminal has unlawfully
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
I military commander can' consti
tute and appoint under this Act
to inflict the death penalty is a
military court composed of aboard,
and called in the Act -a "military
,oinnission.
I see no relief for the condemn
ed against the sentence of this
agent of the military commander.
It is not the sort of court whose
sentence of death must be first ap-'
proved by the commander and ti
nally by the President, for that is
allowed only where the~sentence
is pronounced by a "military com
mission." Nor is it a sentence
pronounced by the rightful court
of the State, but by a court and
by a judge not clothed with au
thority under the laws of the
Statt, but constituted by the mili
tary authority. As the represen
tative of this military authority,
this Act forbids interference "un
der color of State autfiority' with
the exercise of his functiQns.
In another one of these districts,
a military order cpminmands the
Governor of the State to forbid
the re-assembling of the Legisla
ture, and-thus suspends the prop
er legislative power of the State.
In the same district, an order has
been issued "to relieve the Treasu
rer of the State frem the duties,
bonds, books, papers, &e., apper
taining to his office." ,and to put
an "assistant quartermaster of
United States volunteers" in place
of the removed Treasurer , the'du
ties of which auartermaster-treas
urer are thus summed up : He is
to make to the headquarters of
the district "the same reports and
returns required from the Treasu
rer, and a monthly statement of
receipts and -expenditures; he
will pay all warrants. for: salaries
which may be, or become, due,
and legimate expenditures for the
lupport of the penitentiary, State
'.sylum and ,the support of the
provisional State government ;
but no script or warrants for out-.
standing debts of other kind than
those specified will be paid -with
ot special -authority from thiese
h~eadquarters. lHe will deposit
fundls in the same manner as
ihough they were those of the
United'c States."
In another of these dlistricts, a
:ody of military edicCts. issued in
enral and spe~cial orders regu
aly numbeUred, and in ,occaKonal
~ircuars. have been promulgated,
which already begin to assumec
he dimensions of a code.. Thece
nilitarv orders orders modify'the
~xisting law in the remedies - fr
th collection of debts, the en
orcment of judgements and de
res for the payment of money,
staying procedings instituted.
~rohibiting, in certain cases, ~.the
ight to bring suit, e'njoining pro
eedings on execution for the.
~erm of twelve months, ging
2ew liens in certain cases, estab
ablishin g homestead exemnptions,
eiclning what shall, be a legal
~ender, abolishing in* certain -ea
es the remedy by foreignr attach
nent, abolishing bail "as hereto
ore authorized' in 'cases ecs'con
Lractu. but not in 'fother ceases,
~nown as actions e.r delicto," an
3hanging, in several jiarticulars,
:he existing laws as to. the. pun
shment off crimes, and directing
hat-the-crimes ref erred to Bshall
e punished by imprisonment at
ard labor for a term not 'exceed
ng ten years nor less than two
cars, i~n the diseretion of the
our t having jurisdiction thereof."
)ne of these general orders, being
umber ten of the series, contains
o less than seventeen sections,
mbodying- the various cha~ng'es
md mifiticationls which have
enCf recited.
The question at once arises mf
he mind of every lawyer, what
ower or discretion belongs to the
~ourt having jurisdiction of any
>f these offences to sentence a
riminal to any other or different
mnishment than that provided
y the law which v~ests him with
urisdict ion. The con cluding para
~raph of this order. No. 10. is in
hse words : "Any lawgr ordmn
ne heretofore in force in North
arolina or South Carolina, i'scon-:
istent with the provisions oftbis 1'
ed and. declared inoperativ.'
Thus announcing not only apewe'
to suspend the laws, . but -ie-e
c:are them generally noperative -
and assuming full powers of Iegis
lation by the military authority.:.
The ground upon" whieh these
extraordinary powers are bas is .
thius set forth' in Yiitary -e
No. 1. isied in this dis"ict:' e
civil governments now exis't ,
North and South Carblina' o
visional only, and in ~all espects
subject to the paramount authority
of the United States, at any time
to abolish, modify, coitrol U r
supercede the same."- Thus faz
the provisions of the' Act of %n.
gress are well recited. Whs = -
lows is in these words: "Lod
laws and municipal regulatios;
not inconsistent with theCsi --
tution and laws of th.e g , .
States. or the proclamation .o,r,
President, or with such e - -
tions as are or may be; pres;d
in the orders of the commading
general. are hereby declared e
in force. and in -onformify ' e
with, civil- officers are hereb - -
thorized to continue 'the- 'e1
of their proper functions, anN-i
be respected ~ and obeyed by Ali
inhabitants:'. -
This construction of his po%Ver.
under the Act of Congresas.Plp'
the military commander on_.e
same footing as the Congressf
the United States. It assu e,
that "the paramount authoritf'
the United States at any tin-e tp
abolish. modify, control or - super
cede." is vested-in him-as. tully as
it is reserved to. CongresT H'e -
deems himself a representati- C %f -
that paramount authoity. i Ap
puts himself upon an equality'*ith
the - law-making - power -of.At..d
Union, the only paramouat-a'
thority in. our government3 ,o4
at least, as the enactment,. -
is.concerned. He place.
on higher ground than _the
dent, who is simply an exe
officer. 'He assuines, dire
indirectly, all the authorit -
State, legislative, execut&if
judicial; and in effect deelarel
am the State." - " _
I regret that I find it ?necea
to speak so plainly of thisa
tion of authority.. repea
I have heretoforP said, rhat -- -
not doubt that all-hese )011
have been issued under an ion
belief that they were necess --
expedient, and fully -Nyarrante bw
the Acts of Congress. TheTe ' ~ -
bef ev~ils and misehif i.f the . - -
which these pe-ople haemtifk
themseves. throught thiodr
legislative 'bodies, whinh rR fr
change; but neneof thee''aie
so intolerable as'-the eisT6
mischiefs which must ens'ae :fr n
the sort of,reme'dy applied. -Oii
can plainly see what will be the
inevitable confusion and disordet
which such disturbances "of th~e
whole civil policy -of'.the State&
must produce. If these- military
edicts are allo'wed tor~emaliiden
during the brief .ti'me in :Iwhi
this provisional guilitary goVe
men t~ may be in power,..the se
will be sown for such afuture hai'
vest of litigation as hai'neverbeg.
inflited upan au oth&er ecl~,
There 1s. mn my opunon,.
executiVe duty to'blie erfosred
here wvhich cannot sNfey be-hyot -
ed- adelayed-; foi- 'hotith~
ng the paramount' mth'oiit
sumed bytsb "cm ade
are not, even as to theit p
cxeativ.dtis 'in sifby't- -
c.lothed with -a paaonattk
ty. -'They. are, a, leat, -sab' .
nate executi.ve ofiicers. T-boy>ik'.
responsible to the-, Pes4at
th,e proper~ .exe@p of
at performe'd -by seheti
aent.s as he -deems con
but the dntv renmains- wit-h h t~
see to it that :they exbetEi1
dties fait hfully and a~crirg?to
law.
It is true that this Act of Gon
gress only refers to the President
in the matter of selecting and ap
poin ting these commanders, and in
the matter of their powers and
duties under the law, the Act
speaks in terms directly to them;
but this does not relieve them from
their responsibility to the Presi
dent, nor does it r~elieve him from
the constitutional obligation im
posed upon him, to see that all "the
laws be faithfully executed."
It can scarcely be necessary tc,
cite authority for so plain a pro
position as this. Nevertheless, as
we have a recent decision com
pletely in point, I may as well -
rfer to it.
'Upon the motion made by the
state of Mississippi before the Su
reme Court of the United States