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 authority. The only question is upon the powers conferred on the military authority. Whatever power is not given to the military, remains with the civil government.

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 altogether, but with this express limitation, "as hereinafter prescribed."

We must, then, examine what is thereinafter provided, to find the extent and nature of the power granted.

This, then, is what is granted to the military commander: 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 have 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-comprehensive, 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 affecting 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 protection to one party by violating the rights of the other party.

I feel confident that these military 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 statute as that now under consideration. 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 must interpret this grant of power. It is a grant of power to military authority, over civil rights and citizens, in time of peace. It is a new jurisdiction, never granted before, by which, in certain particulars and for certain purposes, the established principle that the military shall be subordinate to the civil authority, is reversed. The 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 clauses, we must look to the context and to the whole law, that general

clauses are to be controlled by particular clauses, and that such construction is to be put on a special clause as to make it harmonize with the other parts of the statute, so as to avoid repugnancy, I proceed to the construction of this part of 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 preserve, not to abrogate; 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 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 formed by the suppression of insurrection, disorder, and violence, and by the punishment, either by the agency of the State courts, or by military commissioners, 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 provides for a speedy trial of the offender, forbids the infliction of cruel and unusual punishment, and requires that sentences of these military courts, which involve the liberty or life of the accused, shall have the approval of the commanding 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 eveu as to that the clear meaning of this act is, that it is to be interfered with by the military authority, unless when a necessity for such interference may happen to arise.

I see no authority, nor any shadow of authority, for interference with any courts or any other jurisdiction, than criminal courts in the exercise of criminal jurisdiction. The existing civil authority in all its other departments, legislative, executive, and judicial, is left untouched. There is no provision, even under the plea of necessity, to establish by military authority, courts or tribunals for the trial of civil cases, or for the protection of such civil rights of person or property as come within the cognizance of civil courts as contradistinguished from criminal courts. In point of fact, there was no foundation for such a grant of power, for the civil rights act, and the Freedmen's Bureau act, neither of which is superseded by this act, made ample provision for the protection of all merely civil rights where the laws or courts of these States might fail to give full, impartial protection.

I find no authority anywhere in this act for the removal by the military commander of the proper officers of a State, either 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. The 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 section 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 case of vacancies, 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 office by one of these military commanders. Certainly he is not the governor 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 military governor for a State which has no lawful governor, 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 removed 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 equally true as to all the other legislative, executive, and judicial officers of the State. If the military commander can oust one from his office, he can oust them all. If he can fill one vacancy he can fill 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 frustrate 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 people, 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 insurrection 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 martial law in its place. And the same thing may be 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 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 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. When 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 military commander to change or modify the laws in force. The 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 expediency 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 military commander find his authority "to abolish, modify, control, or supersede" any one of those laws?

The enumeration of the extraordinary 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 deposed under a threat of military force, and another person, called a governor, has been appointed by the military commander to fill his place. Thus presenting a 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 criminal 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 transfer 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 jurisdiction of the court. This military appointee is certainly 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 private 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 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 "change 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 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 "military commission."

I see no relief for the condemned against the sentence 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 clothed with authority under the laws of the State, but constituted by the military authority. As the representative of this military authority, this act forbids interference "under color of State authority" with the exercise of his functions.

In another 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, &c., appertaining to his office," and to put an "assistant quartermaster of 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 receipts and expenditures; he will pay all warrants for salaries which may be, or become, due, and the legitimate expenditures for the support of the penitentiary, State asylum, and the support of the provisional State government; but no scrip or warrants for outstanding debts of other kind than those specified will be paid without special authority from these headquarters. 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 dimensions of a code. These military orders modify existing law in the remedies for the collection of debts, the enforcement of judgments and decrees for the payment of money, staying proceedings instituted, prohibiting, in certain cases, the right to bring suit, enjoining proceedings on execution for the term of twelve months, giving new liens in certain cases, establishing homstead exemptions, declaring what shall be a legal tender, abolishing in certain cases the remedy by foreign attachment, abolishing bail "as heretofore authorized" in cases ex contractu, but not in "other cases, known as actions ex delicto," and changing, in several particulars, the existing laws as to the punishment of crimes, and directing that the crimes referred to "shall be punished by imprisonment at hard labor for a term not exceeding ten years nor less than two years, in the discretion of the court having jurisdiction thereof." One of these general orders, being numbered ten of the series, contains no less than seventeen sections, embodying the various changes and modifications which have been recited.

The question at once arises in the mind of every lawyer, what power or discretion belongs to the court having jurisdiction of any of these offences to sentence a criminal to any other or different punishment than that provided by the law which vests him with jurisdiction. The concluding paragraph of this order No. 10 is in these words: "Any law or ordinance heretofore in force in force in North Carolina or South Carolina, inconsistent with the provisions of this general order, are hereby suspended and declared inoperative." Thus announcing, not only a power to suspend the laws, but to declare them generally inoperative, and assuming full powers of legislation by the military authority. The ground upon which these extraordinary powers are based is thus set forth in military order No. 1, issued in this district : "The civil government now existing in North Carolina and South Carolina is provisional only, and in all respects subject to the paramount authority of the United States at any time to abolish, modify, control, or supersede the same." Thus far the provisions of the act of Congress are well recited. What follows is in these words: "Local laws and municipal regulations not inconsistent with the Constitution and laws of the United States, or the proclamations of the President, or with such regulations as are or may be prescribed in the orders of the commanding general,