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 footing as the Congress of the United States. It assumes that "the paramount authority of the United States at any time to abolish, modify, control, or supersede," is vested in him as fully as it is reserved to Congress. He deems himself a representative of that paramount 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 indirectly, all the authority of the State, legislative, executive, 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 not doubt that all these orders have been issued under an honest belief that they were necessary or expedient, and fully warranted by the act of Congress. There may be evils and mischiefs in the laws which these people have made for themselves 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 applied. One can plainly see what will be the inevitable confusion and disorder which such disturbances of the whole civil policy of the State must produce. If these military edicts are allowed to remain, even during the brief time in which this provisional military government may be in power, the seeds will be sowed for such a future harvest of litigation as has never been inflicted upon any other people.

There is, in my opinion, an executive duty to be performed here, which cannot safely be avoided or delayed. For notwithstanding the paramount authority as sumed by these commanders, they are not, even as to their proper executive duties, in any sense, clothed with a paramount authority. They are, at last, subordinate executive officers. They are responsible to the President for the proper execution of their duties, and upon him rests the final responsibility. They are his selected agents. His duty is not all performed by selecting such agents as he deems competent; but the duty remains with him to see to it that they execute their duties faithfully and according to law.

It is true that this act of Congress only refers to the President in the matter of selecting and appointing 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 President, nor does it relieve him from the constitutional obligation imposed upon him to see that all “the laws be faithfully executed."

It can scarcely be necessary to cite authority for so plain a proposition as this. Nevertheless, as we have a recent decision completely in point, I may as well refer to it.

Upon the motion made by the State of Mississippi before the Supreme Court of the United States at its late term, for leave to file a bill against the President of the United States, to enjoin him against executing the very acts of Congress now under consideration, the opinion of the court upon dismissing that motion, and it seems to have been unanimous, was delivered by the Chief Justice. I make the following quotation from the opinion: "Very different is the duty of the Presi dent in the exercise of the power to see that the laws are faithfully executed, and among those laws the acts named in the bill. By the first of these acts he is required to assign generals to command in the several military districts, and to detail sufficient military force to enable such officers to discharge their duties under the law. By the supplementary act, other duties are imposed on the several

commanding generals, and their duties must necessarily be performed under the supervision of the President as Commander-in-chief. The duty thus imposed on the President is in no just sense ministerial. It is purely executive and political."

Certain questions have been propounded from one of these military districts. touching the construction of the power of the military commander to constitute military tribunals for the trial of offenders, which I will next consider.

Whilst the act does not in terms displace the regular criminal courts of the State, it does give the power to the military commander, when, in his judgment, a necessity arises to take the administration of the criminal law into his own hands, and to try and punish offenders by means of military commissions.

In giving construction to this power, we must not forget the recent and authoritative exposition given by the Supreme Court of the United States as to the power of Congress to provide for military tribunals for the trial of citizens in time of peace, and to the emphatic declaration as to which there was no dissent or difference of opinion among the judges, that such a power is not warranted by the Constitution. A single extract from the opinion of the minority, as delivered by Chief Justice Chase, will suffice: "We by no means assert that Congress can establish and apply the laws of war where no war has been declared or exists. Where peace exists the laws of peace must prevail. What we do maintain is, that when the nation is involved 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 such great and imminent public danger exists as justifies the authorization of military tribunals for the trial of crimes and offences against the discipline and security of the army or against the public safety."

Limiting myself here simply to the construction of this act of Congress and to the question in what way it should be executed, I have no hesitation in saying that nothing short of an absolute controlling necessity would give any color of authority for arraigning a citizen before a military commission. A person charged with crime in any of these military districts has rights to be protected, rights the most 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 military commission on a criminal charge, he is no longer under the protection of law, nor surrounded with those safeguards which are provided in the Constitution.

This act, passed in the time of peace, when all the courts, State and federal, are in the undisturbed exercise of their jurisdiction, authorizes, at the discretion of a military officer, the seizure, trial, and condemnation of a citizen. The accused

may be sentenced to death, and the sentence may be executed, without an indictment, without counsel, without a jury, and without a judge. A sentence which forfeits all the property of the accused requires no approval. If it affects the liberty of the accused, it requires the approval of the commanding general; and if it affects his life, it requires the approval of the general and of the President. Military and executive authority rule throughout, in the trial, the sentence, and the execution. No habeas corpus from any State court can be invoked, for this law declares that "all interference, under color of State authority, with the exercise of military authority under this act, shall be null and void

I repeat it, that nothing short of an absolute necessity can give any color of authority to a military commander to call into exercise such a power. It is a power the exercise of which may involve him, and every one concerned, in the gravest responsibilities. The occasion for its exercise should be reported at once to the Executive for such instructions as may be deemed necessary and proper. Questions have arisen whether, under this power, these military commissioners can take cognizance of offences committed before the passage of the act, and whether they can try and punish for acts not made crimes or offences by federal

or State law.

I am clearly of opinion that they have no jurisdiction as to either. They can take cognizance of no offence that has not happened after the law took effect. Inasmuch as the tribunal to punish, and the measure or degree of punishment, are established by this act, we must construe it tob e prospective, and not retroactive. Otherwise it would take the character of an ex post facto law. Therefore in the absence of any language which gives the act a retrospect, I do not hesitate to say it cannot apply to past offences.

There is no legislative power given under this military bill to establish a new criminal code. The authority given is to try and punish criminals and offenders, and this proceeds upon the idea that crimes and offences have been committed; but 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 altogether to the military authorities, with only this limitation, that the punishment to be inflicted shall not be cruel or unusual. The military commission 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 liberty" of 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 military authority can take no cognizance of them, nor in any way interfere with the regular administration of justice by the appropriate federal courts.

In the opinion heretofore given upon other questions arising under these laws, I gave at large for your consideration the grounds upon which my conclusions were arrived at, intending thereafter to state these conclusions in a concise and clear summary. I 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 telegraph 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 ARE ENTITLED TO REGISTRATION.

1. The oath prescribed in the supplemental act defines all the qualifications required, and every person who can take that oath is entitled to have his name entered upon the list of voters.

2. The board of registration have no authority to administer any other oath to the person applying for registration than this prescribed oath; nor to administer any oath to any other person, touching the qualifications of the applicant, or the falsity of the oath so taken by him. The act to guard against falsity in the oath, provides that, if false, the person 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 qualifications, either by witnesses or any other form of proof.

3. As to citizenship and residence.

The applicant for registration must be a citizen of the State and of the United States, and must be a resident of a county included in the election district. He may be registered if he has been such citizen for a period less than twelve

months at the time he applies for registration, but he cannot vote at any election unless his citizenship has then extended to the full term of one year. As to such a person the exact length of his citizenship should be noted opposite his name on the list, so that it may appear on the day of election, upon reference to the list, whether the full term has been accomplished.

4. An unnaturalized person cannot take this oath, but an alien who has been naturalized can take it, and no other proof of naturalization can be required from him.

5. No one who is not twenty-one years of age at the time of registration can take the oath, for he must swear that he has then attained that age.

6. No one who has been disfranchised for participation in any rebellion against the United States, or for felony committed against the laws of any State or of the United States, can safely take this oath.

The actual participation in a rebellion, or the actual commission of a felony, does not amount to disfranchisement. The sort of disfranchisement here meant is that which is declared by law passed by competent authority, or which has been fixed upon the criminal by the sentence of the court which tried him for 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 in either of these ten States, except perhaps Virginia, as to which State special instructions will be given.

7. As to disfranchisement arising from having held office followed by participation in rebellion.

This is 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 judicial office in any State, and afterwards engaged in an insurrection or rebellion against the United States, or given aid or comfort to the enemies thereof; that I have never taken an oath as a member of Congress of the United States, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, and afterwards engaged in insurrection or rebellion against the United States, or given aid or comfort to the enemies thereof."

Two elements must concur in order to disqualify a person under these clauses : First, the office and official oath to support the Constitution of the United States. Second, engaging afterwards in rebellion. Both must exist 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 afterwards engaged in rebellion, is not disqualified. So, too, a person who has engaged in rebellion, but has not theretofore held an office and taken that oath, is disqualified.

8. Officers of the United States.

As to these the language is without limitation. The person who has at any time prior to the rebellion held any office, civil or military, under the United States, and has taken an official oath to support the Constitution of the United States, is subject to disqualification.

9. Military officers of any State, prior to the rebellion, are not subject to disqualification.

10. Municipal officers-that is to say, officers of incorporated cities, towns, and villages, such as mayors, aldermen, 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 States, or members of a State legislature, are subject to disqualifi

cation. But those who have been members of conventions framing or amend ing the constitution of a State, prior to the rebellion, are not subject to disqualification.

12. All the executive or judicial officers of any State, who took an oath to support the Constitution of the United States, are subject to disqualification, and in these I include county officers, as to whom I made a reservation in the opinion heretofore given. After full consideration I have arrived at the conclusion that they are subject to disqualification, if they were required to take as a part of their official oath the oath to support the Constitution of the United States.

13. Persons who exercised mere agencies or employments under State authority are not disqualified; such as commissioners to lay out roads, commissioners of public works; visitors of State institutions; directors of State banks or other State institutions; examiners of banks; notaries public, commissioners to take acknowledgments of deeds, and lawyers.

ENGAGING IN REBELLION.

Having specified what offices held by any one prior to the rebellion come within the meaning of the law, it is necessary next to set forth what subsequent conduct fixes upon such person the offence of engaging in rebellion. I repeat that two things must exist as to any person, to disqualify him from voting: first, the office held prior to the rebellion; and afterwards, participation in the rebellion.

14. An act to fix upon a person the offence of engaging in rebellion under this law must be an overt and voluntary act, done with the intent of aiding or furthering the common unlawful purpose. A person forced into the rebel service by conscription, or under a paramount authority which he could not safely disobey, and who would not have entered such service if left to the free exercise of his own will, cannot be held to be disqualified from voting.

15. Mere acts of charity, where the intent is to relieve the wants of the object of such charity, and not done in aid of the cause in which he may have been engaged, do not disqualify. But organized contributions of food and clothing for the general relief of persons engaged in the rebellion, and not of a merely sanitary character, but contributed to enable them to perform their unlawful object, may be classed with acts which do disqualify.

Forced contributions to the rebel cause, in the form of taxes or military assessments, which a person may be compelled to pay or contribute, do not disqualify. But voluntary contributions to the rebel cause, even such indirect contributions as arise from the voluntary loan of money to rebel authorities, or purchase of bonds or securities created to afford the means of carrying on the rebellion, will work disqualification.

16. All those who, in legislative or other official capacity, were engaged in the furtherance of the common unlawful purpose, where the duties of the office necessarily had relation to the support of the rebellion, such as members of the rebel conventions, congresses, and legislatures, diplomatic agents of the rebel confederacy, and other officials whose offices were created for the of purpose more effectually carrying on hostilities, or whose duties appertained to the support of the rebel cause, must be held to be disqualified.

But officers who, during the rebellion, discharged official duties not incident to war, but only such duties as belong even to a state of peace, and were necesgary to the preservation of order and the administration of law, are not to be considered as thereby engaging in rebellion 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.