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THE WEEKLY CONSTITUTIONALIST
OPINION OF ATTORNEY GENERAL
BTANBERY AS TO THE POWERS
OF THE MILITARY COM
MANDERS.
THE LINE WHICH SEPARATES MILITA
RY AND CIVIL JURISDICTIONS.
MILITARY COMMANDERS HAVE MO
AUTHORITY TO REMOVE
CIVIL OFFICERS.
THE REGULAR STATE OFFICIALS EN
TITLED TO HOLD THEIR OFFICEB.
MILITARY COMMANDERS CANNOT
TAKE COGNIZANCE OF PAST
OFFENCES.
THE PRESIDENT HAS A DUTY TO PER
FORM WHICH CANNOT BE AVOIDED
OR DELATED.
The Persona who are Qualified to Vote
Under the Reconstruction Art.
Attorney General's Office, £
Washington, June 12. $
The President— Sir : On the 24th ultimo I
had the honor to transmit for your considera
tion 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 questions, upon which the
military commanders require instructions.
The original act recites in its preamble that
“no legal State governments or adequate pro
tection for life or property exist” iu those ten
States, and that “it is necessary that peace and
good order should be enforced” in those States,
“until loyal and republican State governments
can be legally established.”
The first and second sections divide these
States into five military districts, subject to the
military authority of the United States as there
inafter prescribed, and make it the duty of the
President to assign from the officers of the
army a general officer to the command of each
district, and to furnish him with a military force
to perform bis duties and enforce his authority
within bis district.
The third section declares, “That it shall be
the duty ot each officer assigned as aforesaid 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 to this end, hemay allow
local civil tribunals to take jurisdiction of and
try offenders, or, when in his judgment it may
be necessary for the trial of offenders, he shall
have power to organise military commissions
or tribunals for that purpose; and all interfer
ence under color of State authority with the
exercise of military authority under this act
shall be null and void.”
The fourth section provides, “ That all per
sons put under military arrest, by virtue of this
act shall be tried without unnecessary delay,
and no cruel or unusual punishment shall be
inflicted, and no sentence of any militant com
mission or tribunal hereby authorized, affecting
the life or liberty of any person, shall ue exe
cuted until it is approved by the officer in com
mand of the district; and the laws and regula
tions for the governor nt of the army shall nr
be effected by this act, except in so tar as they
conflict with its provisions: Provided, That no
sentence of death under the provisions of this
act shall be carried into effect without the ap
proval of the President.”
The fifth section declares the qualification of
voters in aU elections, as well to frame the new
constitution for each State, as in the elections to
be held under the provisional government uu
tll the new State constitution is ratified by Con
gress, and also fixes the qualifications of the
delegates to frame the new constitution.
The sixth section provides, “That until
the people of said rebel States snail be, by law,
admitted to representation in the Congress of
the United States, any cavil governments
which may exist therein shall be deemed pro
visional only, and in ail respects subject to
the paramount authority of the United Buies
at any time to abolish, modify, control or su
persede the same; and in all elections to any
office, under such provisional governments,
all persons shall be entitled to vote, and none
other, who are entitled to vote under the pro
visions oi the fifth section of this act, and no
person shall be eligible to any office under any
such provisional governments who would be
disqualified from bolding office under the pro
visions of the third at tide of the said Constitu
tional Amendment.”
The duties devolving npon the commanding
general by the supplementary act relate alto
get tier to the registration of voters and the
elections to be held under the provisions of
that act. And as to these duties they are plain
ly enough expressed ia tl\e act, aud it is not
understood that any question not heretofore
considered in the opinion referred to, has
arisen or is likely to arise as to them. My‘ at
fentiou, therefore, is directed to the powers
aud duties of the military commanders under
the original act’
We see clearly enough that this act contem
plates two distinct governments iu each of these
ten States, the one military, the other civil. —
The civil government is recognized as existing
at the d.de of the act. The. military govern
n n ut is created by the act. Both are provision
al, and both are to continue until the new State
constitution is framed and the State is admitted
to represent ttioa in Congress. When tha
event takes place, both these provMonal gov
ernments are to cease. In contemplation of
this act, tliis military authority and. this civil
authority are to be carried on together. The
people iii these States are made subject to both,
and must obey both, iu their respective juris
dictions.
There is, then, an imperative necessity to de
fine as clearly as possible the line which sepa
rates the two jurisdictions, and the exact scope
of the authority of each.
Now as to the civil authority, recogniz-'d by
tne act as the provisional civil government, it
covered every department of civil jurisdiction
in each ol these -States. It had all the charac
teristics and powers of a State government,
legislative, judicial and executive, and was in
the full and lawful exereise of all these powers,
except only that it was not entitled to repre
sentation as a State of the Union. This existing
government is uot set aside; it is recognized
‘more than once by the act. It is not in any one
of its departments, or as to any one of its func
tions, repealed or modified by this act, save only
in the qualifications ol voters, the qualifications
of persons eligible to office, the manner of
holding elections, and the mode of framing the
constitution of the State. The act does not in
any other respect change the provisional gov
ernment, nor does the act authorize the military
ar hority to change it. lte power of further
changing it is reserved, not granted, and it is
reserved to Congress, not delegated to the mil
pa ry commander.
Congress was not satisfied with the organic
law, or constitution, nnder which this civil gov
ernment was established. That constitution
was to be changed in. only one particular to
make it acceptable to Congress, and that was in
the matter of .the elective franchise. The pur
pose, the sole object of this act is to effect that
change, and to effect it by the agency of the
people of the State, or such of them as are made
voters, by means of elections provided for in
the act, and in the meantime to preserve order
and to punish offenders, if found necessary, by
military commissions.
We are, therefore, n<Uat a loss to know what
powers we e posses ed by the existing civil au
thority. The o lly question is upon the powers
conferred on the military authority. Whatever
power I not given to the miliiary remains
with the civ II government.
We si ?, fir»t of all, that each or these Bta!c*
it “ made subject to ire military authority of
the United Bute*”—not to the military author
ity alto-'.' •ther, but with thi3 express limitation,
Has here! nailer prescribed.”
We must, then, examine what Is thereinafter
perilled, to find tU* extent aud nature of the
pOYJT grauUM.
This, then*,.is what is g anted to the military
commander: the power or duty “to protect all
persons in the r rights of person and property,
to supp.ess insurrection, disorder, aud vio
-- nee, ami to punish, or cnt*e to be punished,
all disturbers of the public peace and crimi
nals, ’’ aud Le 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 com gander.
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 pro
perty. Considered by itself, and without refer
ence the context and to other provisions of the
act, it is liable, from its generality, to be mis
understood.
What sort of protection is here meant? What
violations of the rights of persons, or of pro
perty, are here intended ? In what manner is
this protection to be given ? These question &
arise at once.
It appears that some of the military com
manders have understood this grant of power
as ail comprehensive, conferring on them the
power to remove the executive and judicial offi
cers of the State, and to appoint other officers
in their places, to suspend the legislative power
of the Bute, to take under their control, by
officers appointed by themselves, the collection
and disbursement of the revenues of the State,
to p: ohibit the execution of the laws of the
State by the agency of its appointed officers
and agents, to change the existing laws in mat
ters ass: cting purely civil and private rights, to
suspend or enjoin the execution of the judg
ments and decrees of the established Star?
courts, to interfere in the ordinary administra
tion of justice in the State courts, by prescri
bing new qualifications for jurors, and to change,
upon the ground of expediency, the existing
relations of the parties to contracts, giving pro
tection 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 educa
tion and training have not been of the kind to
fit them tor the delicate and difficult task of
giving construction to such a statute as that
row uraer consideration. They require in
struction, and nearly all of them have asked for
*nsti action to solve their own doubts, and to
*jrn*sh to them a safe ground for the perform
ance of their duties.
There can be no doubt as to the rule of con
struction according to which we most 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 anew jurisdiction, never
granted before, by which, in certain particulars
and for certain purposes, the established prin
ciple 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 in thus stated in Dtoarris on Statutes , p.
b 52: “A statute creating a .new jurisdiction
ought to be construed strictly.”
To consider, then, m the first place, the terms
of the grant. It is of a power to protect all
fersons in their rights to person and property,
t 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 sus
tain the existing frame ot 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, unlaw
ful force, and criminal infraction. It is given
to meet the contingency recited in the pre
amble, of a want of “adequate protection for
life and propertyand the necessity also recit
ed, “that peace and good order should be en
forced.”
Guided by this rule, and the light of other
rules of construction familiar to every lawyer,
especially of those which teach us that, in giv
ing construction to single clauses, we mu6t
look to the context and to the whole law, that
general clauses are to be controlled by particu
lar clauses, and that 6uch construction is to be
put ou a special clause as to make it harmouize
with the other parts of the statute, so as to
avoid repugnancy. I proceed to the construc
tion of this part of the act.
This construction is made more apparent
wheu we look at the immediate context, and
see in what mode, and by what agency, this pro
tection is to be secured. This duty, or power,
of protection is to be performed hythesup
pre.-sioa of insurrection, disorder, and vio
h nee, and by the punishment, either by the
agency ot the State courts, o. by military com
missioners, when necessary, of all disturbers
of the public peace and criminals; and it is
deinar, and that all interference, under color of
Blate authority, with the exercise of this urili
tury authority, shall be null and void.
Ti.o t ext succeeding elans * provides for a
speedy trial of lire offender, forbids the inflie
tio i of c uel aud unusual punishment, and re
quires that sentences of these courts, which in
volve the liberty or life of the accused, shall
have the approval of the commanding gener.d,
and as to a sentence ol dt'Hb, the approval ot
the President, before execution.
ATI tiiese special provisions have reference to
the preservation of order and protection against
vioh cce and enn e. They touch no other de
partment or if action of the civil administra
tion, save only its civ 11 jurisdiction, and even as
to that the clear meaning of this act is, that it ia
not to be interfered with by the military au
thority, unless wl eu a necessity for such inter
ference may happen to arise.
l sec no authority, nor any shadow of au
thority, for interference with any other courts
or any other jurisdictions, than criminal courts
in the exercise of criminal jurisdiction. The
existing civil authority in all Us other depart
ments, legislative, executive and judicial, is left
untouched. Tuere is no provision, eveu under
t.ie plea of necessity, to establish, by military
authority, courts or tribunals tor the trial of
»-n : i cases, or for the nos >ction of such civil
| rights of person or proper,y as come within the
! cognizance of civil courts as eontra-distinguish
-led from criminal courts In point of fad there
was no foundation for such a grant ot power,
forthe Civil (lights act, and the Freedman’s
finreau act, neither of which-is superceded by
this? f, m.ule ample provision for the protec
tion of all n -rely civil rights where the laws or
courts of these States might fail to give full,
impartial protection.
I find uo 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
pow • would justify the removal or the ap
po'utine i. of such an officer. There is nosuch
g.aut expressed or even implied. On the con
trary, the act clearly forbids it. The regular
State officials, duly elected and qualified, are
o-titled to hold their offices. They, too, have
rights which the military commander is bound
to protect, not authorized to destroy.
We find iu the concluding clause of the sixth
section of the act that these officials are recog
nized, aud express provision is made to per
petuate them. It is enacted that “in all elec
tions to any office under such provisional gov
<*' niceats, all persons shall be entitled to vote,
and rone otl ers, who are entitled to vote under
tl e p. ovisions ot the fifth section of this act;
end no persons shall be eligible to any office
under such provisional government who would
be disqualified from hold -g office under the
provisions of this act.”
Tb>s provision not only recognizes all the of
ficers of ti e 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
a..y other agency or any other power, either
State o. Federal, civil or military.
I find it impossible under the provisions
of th’s act to comprehend such an official
as a Goveruor of one of these States appoint
ed to office by one of these military com
manders. Certainly he is not the Governor re
cognized by the laws of the State, elected by
the people of the Si ite and clothed as snch
with the chief executive power. Nor is he
appointed as a Mibtary Governor, for a Stale
which his no laWiul Governor under the press
ure of an existing necessity to exercise) pow
er* a large, t : e inteutlon, no donht, was to ap
point h!in to fi i a vacancy occasioned by a mil
i ty ord r, ar. ! to put h:m in the plicc of the
removed Governor - o exrente the functhms ot
the offi’c as provided bylaw. To law takes
no cog’- ziMce of such an officii!, end lie is
clothed’ y/,h no anthoiirr or color of au
•thor'y. What is true as to the T? > rumor is
equ*!ly true a# I > the other L-'gid-Ure,
Executive ami Jadioitl officers of.the St Ue.
It the military mu oust ou* from
j his office he can oust them all; if he can fiil
ore vacancy, he can fill all vacancies, and thus
u-urp all civil jurisdiction jnfo hispwn hands,
or the bauds ot those who hold their appoint
ments from him, and subject to his power of
removal, aud thus frustrate, the very right se
cured 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 elect
ing their own officers is still left with the peo
ple, and it must be pr^erved.
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 hap
pen that an insurrection in one of these States
may be so general and formidable as to require
the temporary suspension of all civil govern
ment and the establishment of martial law in
Its place. And the same thing may be true as
to local disorder or not, 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. 1 confine
myself to the proper authority of the military
commander, where peace and order prevail.
When peace and "order do prevail, it is not
jllowable to displace the civil officers and ap
point others in their places under any idea that
the military commander can better perform his
duties and carry out the great purposes of the
act by the agency of civil officers of his own
choice rather than by the lawful incumbent.
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 per
form his duties and enforce his authority within
the district to which he is assigned.” Iu the
suppression of insurrection and riot the mili
tary commander is wholly independent of the
citil authority; so, too, in the trial and punish
ment of criminals and offenders he may super
cede the civil jurisdiction. His power is to be ex
ercised in these special emergencies, and the
means are put into bis hands by which it is to be
exercised, that is to say, “a sufficient military
force to enable such officer to perform his du
ties and enforce his authority,” and military tri
bunals, of bis 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 du
ties.
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 doue, 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 o"f
the military power conferred by this 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 com
mander 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 legisla
tive duties. He has uo authority to enact or
declares new code of laws for the people|with
in his district under any idea that he can make
a better code than the people have made for
themselves. The public policy is not commit
ted to his discretion. The Congress which
passed this act undertook in certain 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 fall force, but subject to this emphatic
declaration, that as to these laws and such fu
ture changes as might be expedient, the ques
tion of expediency and the power to alter,
amend, or abolish, was reserved for “ the para
mount authority of the United States at any
time to abolish, modify, control, or supersede
the .same.” Where, then, does a military com
np.nder find his authority “to abolish, inodily,
control, or supercede ” any one of these laws ?
The enumeration of the extraordinary powers
exercised by the military commanders in some
of the districts would extend this opinion loan
unreasonable length. A few instances must
suffice.
In one of these districts the Governor of a
State has been deposed under a threat of rnili
ta.y force, and another person, called a Gov
ernor, has been appointed by the military com
mander to fill his place. Thus presenting the
strange spectacle of an official entrusted 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 au
tliority to the military commander, iu cases of
necessity, to transfer the jurisdiction of a crim
inal court to a military tribunal. That being
lists specific authority over the criminal courts
given by the act, no other authority over them
can bo lawfully exercised by the military com
mander. But in this instaucc the j'ldg has, bv
military order, been ejected from his office, and
a private citizen has been appointed judge iu
his place, by military power, and is now in
the exercise of criminal jurisdiction “ over all
crimes, misdemeanors and offenses ’’Jcommit
ted within the territorial jurisdiction of tire
court. The military appointee is certainly not
authorized to try any one for any offense as a
member of a military tribunal, and he has just
as little authority to try aud punish any offend
er as a judge of a criminal court of the State.
It appears that this private citizen, thus
placed ou the bench, is toVit as the sole judge
in a criminal court whose jurisdiction extends
to cases involving the life ot the accused. If
he luis any judicial power in any case, he has
the same power to take cognizance of capital
cases, aud to sentence the accused to death,and
order hU execution. A strange spectacle!
where the judge and the criminal may very well
“change places;’’ for it the crimiyaL has un
lawfully taken liic, so too does the judge. This
is the inevitable resuU, lor the only tribunal,
the only judges, if they can be called judges,
which a military commander can constitute aud
appoint under this act, to iuflict the death pen
alty, is a military court composed of a board,
and called in the act a “ military commission.”
I see no rtliefJor the coudcmned agaiust the
sentence of this agent of the military command
er. It is not the sort of court whose sentence
of death must-be first approved by the com
mander and finally by the President ;• for that
is allowed only where the sentence is pro
nounced 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 axthqrity under the laws of the
State, but constituted by the military authority.
As the representative ot this military authority,
this act forbids interference “ under color ot
State authority,” with the exercise of his func
tions.
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 issaed “to relieve the treasurer of the
State from the duties, bonds, book 9, papers,
&c., appertaining to his office,” and to put an
“assistant quartermaster of United States vol
unteers ” in place ot the removed treasurer;
the duties of which quartermaster-treasurer are
thus summed np: He is to make to the head
quarters of the district “ the same reports and
returns required from the treasurer, and a
monthly statement of receipts and expendi
tures; he will pay all warrants for salaries
which miy be or become dne, and legitimate
expenditures for the support of the penitenti
ary, State asylum, and the support of the pro
visional State government; but no scrip or
warrants for ontstanding 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 mili
tary edict*, issued in general and special orders
regularly numbered, and in occasional circu
lars, nave been promulgated, which already be
gin to assume the dimensions of a code. The c e
military orders modify the existing law in the
remedies for the collection of debts the en
forcement of judgments and decrees for the
payment o* money, staying proceedin';* insti
tuted, prohibit!.?;?, in certain cases, the right so
uiing suit, enjoining proceedings on execution
.or i:ijj term of tw its mouitis, n-iyjn» new
li-ui* in c i lain ease*, ©sbibiUking’ homestead
ex 'Lip: on-, declaring What *b«ii a legal
tender, 4bo‘! brag la cartel* <».**•* the remedy
by Jordan akylfekin*- “a*
heretofore authorized” ia cr-es ex contractu,
but notin “other cases known as actions ex
ctehcto,” and changing, in several particulars,
Ibe tO til? puni-ljuieut of
crimes, and directing that the crimes referred
to “ shall be punished by Imprisonment at hard
labor for a term not exceeding teu years nor
less than two years, in the discretion of the
court having jurisdiction thereof.” One ot
these general orders, being number ten of the
series, contains no less than seventeen sections
embodying the various changes and modifica
tions which have been recited.
The question at once arises in tho mind of
every lawyer, what power or direction belongs
to the court having jurisdiction of any of these
offenses to sentence a criminal to any other or
different .punishment than that provided by the
Jaw which vests him with jurisdiction. The
concluding paragraph of this order, No. 10, ia
in these words: “ Any law or ordinance hereto
fore in force in North Carolina or South Caro
lina, inconsistent with the provisions of this
general order, are hereby suspended and de
clared Inoperative.” Thus announcing not only
a power to suspend the laws, but to declare
them generally inoperative, and assuming full
powers ot legislation by the military auth »rity.
The ground upon which these extraordinary
powers are based is thus set forth in mUitvry
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 in
consistent 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 com
manding genera], are hereby declared to be in
force, and in conformity therewith civil officers
are hereby authorized to continue the exercise
of their proper functions, and will be respected
and obeyed by the inhabitants.”
This construction of his powers under the
act of Congress places the military commander
on the same footiug as the Congress of the
United States. It assumes that “the paramount
authority of the United States at auy time to
abolish, modify, control, or supercede,” is vest
ed in. him as fully as it isweserved to Congress.
He deems himself a representative of that para
mount authority. He puts himself upon an
equality with the law-making power of the
Union, the only paramount authority in our
government, so far, at least, as the enactment of
laws is concerned. He places himself on higher
ground than the President, who is simply an
executive officer. He assumes, directly or indi
rectly, all the authority of the State, legislative,
exective and judicial,*and in effect declares “I
am the State.”
I regret that I find it necessary to speak so
plainly of this assumption of authority. I repeat
what I have heretofore said, that I do nos doubt
that all these orders have been issued under an
honest belief that they were necessery or expe
dient, and fully warranted by the act of Con
gress. There may be evils and mischiefs in the
laws which these people have made for them
selves through their own legislative bodies
which require change; but none of these can
be so intolerable as the evils and mischiefs
which must ensue from the sort of remedy ap
plied.- One can plainly see what will be the in
evitable confusion and disorder which such dis
turbances of the whole civil policy of the State
most produce. If these military edjpts are al
lowed to remain even during the brief time in
which this provisional military government
may be in power, the seeds will be sown for
snob a future harvest of litigation as has neve*
been inflicted upon any other people.
There is,in my opinion,an executive duty to be
performed here, which cannot safely be avoid
ed or delayed.. For, notwithstanding the para
mount authority assumed by these command
ers, they are not even as to their proper execu
tive duties, in any sense, clothed with a par
amount .authority. They are, at last, subordi
nate executive officers. They are responsible
to the President for the proper execution of
their duties, and upon him rests the final re
sponsibility. They are his selected agents.
Hi3 duty is uot all performed by selecting such
agents as he deems competent; but the duly
remains with hiip to see to it that they
execute their duties faithfully aud according to
law.
It is true that this act of Congress only re
fers to the President in the r» liter of selecting
and appointing those commanders, and in the
matter ot their powers and duties undcnsdhe
law the act speaks in terms directly to them ;
but this does not relievo them from their re
spon.-dbUily to tho President, nor does it re
lievo him from the constitutional oblb-ation
imposed upon him to see that all “the laws ho
tailhfully executed.”
It can scarcely be. necessary to cite authority
tor so plain a proposition as this. Neverthe
r. ss, as we have a recent decision completely iu
Po*l*l, I may as well refer to it.
Upon the motion made by the State of Mis
sissippi before the Supreme Court of the Uni
ted Suites, at its laU term, lor leave to tile a
bill against the Presideut of the United States
to enjoin him against executing the very acts
of Congress now under consideration, the opiu
i°n of the court upon dismissing tint motion,
and it seems to have been unanimous, was de
livered by the Chief Justice. I make the fol
lowmg quotation from the opinion : “ Very
different is the duty of the President in the cx-
Irnhr.m the P°wer to see that the laws are
b ithfui.y executed, and among those laws the
m . tl * biIL B y first of these
m-md In .u quired aßsi S** funerals to eom
dlivd ® ever ‘?,! miUtar y districts, and to
offic rs mill^ ry force to enabl e such
Pv t?,™T haVge t heir duties under the law/
By the supplementary act other duties are im
posed on the several commanding generals, ami
their duties must necessarily be performed m
der the supervision of the President afcoln
m.untu-in-chief.' The duty thus imposed on
the President is in uo just sense ministerial. It
is purely executive and political.”
Certain questions have been propounded
ST®”? 1 , l . heß « mil itary distills touchimr
the construction of the power of the military
shp U MUt e «r t0 w ol lf titUte mil »fary tribunals for
skier 1 1 f offendere > which I will next cou-
Whilst the act does not in terms displace the
regular criminal courts ol the States it does
whpntnV P ° W f t 0 the “Hilary commander,
J ud j? men t a necessity arises, to take
the administration of the criminal law into his
try and P UDisll Offenders by
means of military commissions.
In giving construction to this power, we must
not torget the recent and authoritative exposi
tion given by the Supreme Court of the United
states as to the power of Congress to provide
tor military tribunals for the trial of citizens in
time of peace, aud to the emphatic declaration
as to which there was no dissent or difference
of opinion among the judges, that such a power
is uot warranted by the Constitution. A single
extract from the opinion of the minority, as
delivered by the Chief Justice, will suffice:
“We by no meaos assert that Congress can es
tablish and apply the laws of war where no war
has been declared or exists.. Where peace ex
ists the laws of peace must* prevail, ijfbat we
do maintain is, that when the nation isTuvolveu
in war, and some portions of the country are
invaded, and all are exposed to invasion, it is
within the power of Congress to determine in
what States or districts snch great and immi
nent pnblic danger exists as justifies the au
thorization of military tribunals for the trial of
crimes and offenses agaiust the discipline or
security of the army or against the public
safety.”
Limiting myself here simply to the construc
tion ot this act of Congress and to the question
in what w*y it should be executed, I have no
hesitatioD in saying that nothing short of an
absolute or controlling necessity would give
any color of authority for arntigoing a citizen
before a military commission. A person charg
ed with crime in any of these military districts
has rights to be protected—rights the mc,st
sacred and inviolable, and among these the
right of trial by jury according to laws of the
land. When a citizen is arraigned ■ before a
mi'itary commission on a criminal charge he
i9 no longer nnder the protection of law, nor
surrounded with those safe-guards which are
provided in the Constitution.
This act, passed in a time of peace, ail.
the court*, State and Federal, are in Lhe undis
turbed exereise of their jurisdiction, »u ItOfizcs,
at tiic direction o: a u» iitery oili.er, tne Si/aare,
trial and condcuiuatiou of the citizen. The ac
-1 ciued may be sentenced to death, and tiw tea-'
, M ;uve u«n r w without an indictment.
without eonnsel, without a ju, r. and \
judge. A sentence which forfeitsall
perty ot the accused requires no approval
U .fleets tb« liberty el the
the approval of the comraandiuo- gene!!? S
if it affects his life it requires the?nS , ant L
the general and of the President MmS-TaiSd
executive authority rule throughout, Tht
trial, the sentence, and the elecntiou S
habeas corpus from any State court °
voted, for this law declares that “an Stir*
ference, under color of State authority w\,h
the exercise of military authority under
shall be null and voi .” W “ 8 ac, »
I repeat it, that nothing short of an absolute
necessity can giveanv color of anthoiHv to“
military commander to call into exercise
a power. It to a power the exercise of wbteb
may Involve him and every one coni»Ai. i
the gravest responsibilities. The ocoaain^fi"
Executive for such instrncUons as ma» K
deemed necessary and proper. 1 w
Questions have ariseu whether, under this
power, these military commissioners can take
cognizance of offenses committed before the
passage of the act, and whether they can trv
and punish tor ac s not made crimes or offenses
by Federal or State law.. e 8
lam clearly of opinion that they have no
jurisdiction as to either. They can take coir,
nizance of no offense that has not happened
after the law took effect. Inasmuch ns the tri
bunal to punish and the measure or degree ot
punishment are established by this act, we must
construe it to be prospective, and not retroac
tive. Otherwise it would take the character ol
an ex post facto law. Therefore, in the absence
of any language which gives the act a retro
spect, I do not hesitate to say it cannot apply to
past offenses. J
There is no legislative power given under this
military bill to establish anew criminal code
The authority given is to try and punish crimi
nals and offenders, and this proceeds upon the
idea that dimes and offenses have been com
mitted ; bnt no person can be called a criminal
or an offender for doing an act which, when
done, was not prohibited by law.
But as to the measure of punishment, I regret
to be obliged to say that it is left altegether to
the military authorities, with only this limita
tion, that the punishment to be iuflicted shall
not be cruel or unusual. The military commis
sion may try the accused, fix the measure of
punishment, even to the penalty of death and
direct the execution of the sentence. It is’only
when the sentence affects the “ life or libertv ”
qf the person that it need be approved by the
commanding general, and only in cases where
it affects the life of the accused that it needs also
the approval of the President.
As to crimes or offences against the laws of
the United States, the affittary authority can
take no cognizance of them, nor in any way in
terfere with the regular administration ol jus
tice by the appropriate Federal courts.
In the opinion heretofore given upon other
questions arising nnder these laws, I gave at
large for your consideration the grounds upon
which my conclusions were arrived at, intend
ing thereafter to state these conclusions in a
concise and clear summary. 1 now proceed to
execute that purpose, which is made especially
necessary from the confusion and doubts which
have arisen upon that opinion in the public
mind, caused in part by the errors of the tele
graph and the press in its publication, and in
part by the inaptitude of the general reader to
follow carefully the successive and dependent
steps of a protracted legal opinion.
SUMMARY.
WHO ARB ENTITLED TO REGISTRATION.
1. The oath prescribed in the supplemental
act defines all* the qualifications required, and
every person who can take the oath is entitled
to have his name entered upon the list of
voters.
2. The board of registration have no authori
ty to administer any other oath to she person
applying for registration than the prescribed
oath ; nor to administer any oath to any other
person, tonching the qualifications of the ap
plicant, or the falsity of the oath so taken by
him. The act to guard against falsity in the
oath provides that, if false, the persou taking
it shall be tried and punished for perjury.
No provision is made for challenging the
qualifications of the applicant, or entering
upon any trial or investigation of his qualifica
tions, either by witnesses or any other loan ot
proof.
3; As to citizenship ancl rest TI C (is
The applicant for registration must be a chi
zen of the State and of’ the, United States, and
must be a resident of a county included in the
election district. He may be regi-t'-mi if he
has been such citizen for a period less th m
twelve months at the time he applies for regis
tration, but he cannot vote at any election un
less his citizenship has then extended to tho full
term of one year. As to such a per son the ex
act length of his citizenship should be noted
opposite his name on the lb f, so that it may
appear on the day of election, upon reference
to the list, whether the lull term has then been
accomplished.
4. An uunatnrnlized person cannot take this
oath, but an alien who has been naturalized can
take it, and no other proof of naturalization can
be required Irom him.
5. No one who is not twenty-one years of age
at the time of registration can take the oath, lor
he must swear that be has then attained that
age.
6. No one who has been disfranchised for par
ticipation in any rebellion against the United
States, or lor felony committed agaiust the
laws of any State or of the United States, can
safely take this oath.
The aetnal participation in a rebellion, or the
actual commission of a felony, does notair.onnt
to disfranchisement. The sort of disfranchise
ment here meant is that which U declared by
la .y passed by competent authority, or which
has been fixed upon the criminal by the sen
tence of the court which tried him lor the
crime.
No law of the United States has declared the
penalty of disfranchisement for participation in
rebellion alone. Nor is it known that any such
law exists iu either of these ten Suites, except
perhaps Virginia, as to which State special in
structions will be given.
7. As co disfranchisement arising from having
held office followed by participation in rebellion.
This i- the most important part of the oath,
and requires strict attention to arrive at, its
meaning. I deem it proper to give the exact
words. The applicant must swear or affirm as
follows: . •
“That I have never been a member of any
State Legislature, nor held any executive or ju
dicial office in any State, and afterward engaged
in any insurrection or rebellion against the
United Slates,or given aid or comfort to the ene
mies thereof; that I have never taken an oath
as a member of Congress of the United Spates,
or as officer of the United States, or as a mem
ber of any State Legislature, or as an executive
or judicial officer of any State, to support the
Constitution of the United States, or given aid
or comfort to the enemies thereof.”
Two elements must concur in order to dis
qualify a person under these clauses: First,
the office and official o*th to support the Con
stitution of the United States; Second, enga
ging afterwrrd iu the rebellion. Both must ex
ist to work disqualification, and must happen
in the order of time mentioned.
A person who has held an office and taken the
oath to support the Federal Constitution and
has not afterward engaged in rebellion is not dis
qualified. So, too, a person who has engaged
in rebellion, but has not, therefore, held an
office, and taken that oath, is not disqualified.
8. Officers of the United States.
As to these the language is without limita
tion. The person who has at any time prior to
' the rebellion held any office, civil or military,
nnder the United States, and has taken an offi
cial. oath to support the Constitution of the
United States, is snbject to disqualification.
9. Military officers of any State, prior to the
rebellow, are not subject to disqualification.
10. Municipal officers , that is to say, officers
of incorporated cities, towns, and Tillages, such
as mayors, aUjermen, town council, police, and
other city or town officers, are not subject to
disqualification.
11. Persons who have prior to the rebellion
been members of the Congress of the United
Statro, or members of the State Legislature, are
*ubji et to disqualification. But those who have
been members Os conventions Lamin'’' or
amending the constitution *or a State, prior to!
toe rebellion, are not enbjeet to disqualification.
12. AH the exccavlve or Judicial officer of any
took ua qqkh to supyrihha <
I uuioq of. the United States are subject to dto
oualifica iou, and in these I include county on
cers, as to whom I made a reservation in the
opruiou heretofore given. After Axil considera
te I have arrived at the conclusian that they
a e subject to disqualification if they were re
quired to take, as a part of their offlcivl oeth,
the oath to support the Constitution of ths Untied
States.
18. Persons who exercised mere agencies or
employments under State authority are not dis
qualified ; such as commissioners to lay o«t
roads, commissioners of pnblic works, visitors
of State institutions, directors of State banks or
other State institutions, examiners of banks,
notaries public, commissioners to take acknowl
edgments of deeds and lawyers.
engaging in rebellion.
Having specified what offices held by any one
prior to the rebellion come within the meaning
oi tue law, it is necessary next to set forth what
subsequent conduct fixes upon such person the
of engaging in rebellion. I repeat, that
nn?n<r iff mußt exl#t 118 t(> -any person to die
Linn*! l °.v he rebe llion, and afterward, participa
tion m the rebellion.
enot’o-Gw, acl t 0 u P on a person the offense ©I
answer? re *? el,lon uader this law mast ba
tent of“mH and voluntar y act, done with the In
lawful nnrl'JS 0r further ing the common un
sei yee“v e ‘ j A P er8 ° n forced into the rebel
anthorltv LhTl pt *° n ' or under a paramount
and he . £ ould not disobey,
if left to thp U fr“ DOt ha ' e eQ tered such service
not to 01 own will, can
lVuSJ 1 . b disqualified from voting.
iiSS^SfiSeSS
he rebellion, andsnot of a merely sanitary char-
C T rlbu , ted to Them i
•mwklch beol *“ c ' l wtth
J 0 ™* contributions to the rebel cause, in
™ f teles or mili tary assessments,
a P Prß ° n may be compelled to pay or
ennfr do . not . <*i«qualify. But voluntary
contributions to the rebel cause, even such in
direct contributions as arise from the volunta
ry loan of mouey to rebel authorities, or pur
chase of bonds or securities created to afford
tbe means of carrying on the rebellion, will
work disqualification.
A- 11 those who, in legislative or other
official capacity, were engaged in the further
ance of the common unlawful purpose, where
the duties of the office necessarily had relation
to the support of the rebellion,- such as mem
bers of the rebel conventions, congresses, and
legislatures, diplomatic agents of the rebel
confederacy, and other officials whose offices
were created for the purpose of more effectually
carrying on hostilities, or whose duties apper
tained to the support of the rebel cause, must
be held to be disqualified.
But officers who, during the rebellion, dis
charged official duties not incident to war, but
only such duties as belong even to a state of
peace, and were necessary to the preservation
of order and the administration of law, are not
to be considered as thereby engaging in rebel
lion or as disqualified. Disloyal sentiments,
opinions, or sympathies would not disqualify,
but where* a person has by speech or by writing
incited others to engage in rebellion he must
come under the disqualification.
17. The duties of the board appointed to super
intend the elections.
This board, having the custody of the list ot
registered voters in the district for which it is
constituted, must see that the name ot the per
son offering to vote is found upon the registra
tion li*t, and if such proves to be the fact, it is
the duty of the board to receive his vote. They
cannot receive the votq of any person whose
name is not upon the fist, though he may be
ready to take the registration oath, and al
though he may satisfy them that he was una
ble to have his name registered at the proper
time, in consequence of absence, sickness, or
other cause.
The board cannot enter into any inquiry as
to the qualifications of any person whose name
is not on the list, or aqp to the qualifications of
any person whose name is on the list.
18. The mode of voting is provided in the act
to be by ballot. The board will keep a record
and poll-book ol the election, showing the
votes, list of voters, and the persons elected by
a pluraH/y of the votes cast at the election, and
make returns of these to the commanding gene
ra] of lhe district. ♦
19. The board appointed for registration and
lor superintending the elections must take tbe
oath prescribed by the act of Congress, ap
proved July 2, 1862, entitled “An act to pre
j-cribe an oath of office.”
I have the honor to be,
With great respect,
Henry Stanbery,
Attorney General.
Printers are Manufacturers.— The fol
lowing, says the Floridian , is an official letter
from Commissioner E. A. Rollins, in answer to
inquiries addressed to him by ns whether print
ers are liable to be taxied as manufacturers,
which we publish for the information of onr
brethren press:
Treasury Department. 1
Office of Internal Revenue, 5
Washington, May 23,1867. )
Messrs. Dyke § Sparkawk:
Sms—l reply to yours of the 10th inst., that
a printer is liable to the special tax as a manu
facturer, if the articles he prints exceed in value,
when printed, SI,OOO per annum.
A printer is understood by this office to be
any person or firm whose business is to take
impressions from type, or engraved surfaces,
upon paper Or Other materials.
"The exemption of manufactured articles from
specific ad valorem duties in no way affects the
liability of the maker thereof to the special tax
a» a manufacturer.
Proprietors of publications who do not print
the works they publish, are not liable as manu-.
lacturers in respect thereof, bat are liable as
dealers, if their sales exceed SI,OOO per annum.
Manufacturers may, without additional liabil
ity, sell their products at the place of manufac
ture or at their principal office, provided no
wares are kept except as samples at such office.
Very respectfully,
[BignedJ E. A. Rollins,
Commissioner.
“ The Southern Orphans’ Association.”—
Anxiety for Riches.—Why any one should
address the Baltimore Sun with inquiries rela
tive to the “ list of prizes” of any of these
miserable devices for getting money called
“ charitable gift entertainments,” aud the like,
is more than we can divine. We have, with
other journalists who have the welfare of the
community at heart so often exposed these
things, that if the public is not sufficiently
warned against them, we most despair of
“ turning Ephraim from his idols.” > We receiv
ed letters from parties in different towns of
both Pennsylvania and Delaware yesterday, de
siring to procure copies of the drawing of the
“ Grand Charitable Presentation Concert in Aid
of the Southern Orphans’ Association,” to take
place in Baltimore on the 17th of June— that
is, yesterday. These parties each confess of
having purchased several tickets in the aforesaid
scheme, and doubtless there are many thous
ands in the like category, far and near, and
especially in the South, the advertisements hav
ing appeared in numerous papers in that quar
ter, and circulars been freely sent ont, ss there
is always by the “professional” conductors of
such enterprises. But we had no idea that any
such drawing would take place a* announced,
and certainly onr reporters were notable to
discover or hear of any such violation of the
law actually in progress in this city yesterday.
Onr correspondents may be sure, however, that
shonld it ever accidentally happen to come oft,
“the list of prizes” will not appear in the Sun.
This gr ind scheme embraces .50QJKX) tickers,
everyone of which is to “have something,”
and as it took four days to complete the draw
ing of another delusive “charitable” P l,6 *®® 1 *
tion affair in this city some time ago, which had
only 80,000 tickets to draw, Interested purilea
may make the calculation *• to how long U
would inks to get through with this ‘ gr*oo
out*. According to oar arUhmst?
days would br required. Doc* an/ one thtnk
»o much valuable Ante is Ukely to b
to it?