Posted by KatNip on September 17, 1998 at 02:32:13:
In Reply to: Must Read: New York v. United States posted by Paul Andrew Mitchell, B.A., M.S. on September 16, 1998 at 23:36:22:
“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 Statues, p. 652: ‘A statute creating a new jurisdiction ought to be construed strictly.’”
[***] “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 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 police power; and the protection here intended is protection of persons and property against violence, unlawful, 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.’”
[***] “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no foundation for such a grant of power; for the civil rights act, and the freedmen’s bureau act, neither of which is superseded by this act, made ample provisions for the protection of all merely [inferior] civil rights, where the laws or courts of these States mights fail to give full, impartial protection.” 12 Op.Atty.Gen. 182, 187, 188, 189, Henry Stanbery, Reconstruction Acts, June 12, 1867.
“Civil Rights Acts——how, construed. The [Federal] Civil Rights Act [i.e., enforcement of foreign-created rights] is in derogation of the common law and therefore should be strictly construed.” Grace v. Moseley, 112 Ill. App. 100 (1904).
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