Year: 1867

= II < :
itultural anb Commercial yterests
,, JUNE ~, 1861
itary authority under this act, shall be null ant
void" -.
repeat it, that nothing short of an absolute ne
cessity can give any color Of authority to Militia
ry Commander to call into exercise such power
It is power, the exercise of which may involve
him, and every one concerned, in the gravest re-
sponsbilities The occasion for its exercise should
be reported at once to the Executive for such in
structions as may be 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 juris
diction as to either. They can take cognizance Of
no offence that has not happened after thelaw took
effect Inasmuch as the tribunal to punish, and
the measure or degree Of punishment, are estab-
hshed by this act, we must construe it to be pros
pective, and not retroactive. Otherwise it would
take the character of an er post tacto law There
fore, in the absence of any language which gives
the act retrospect do not hesitate to say it can
not apply to past offences.


There is no legislative power given under this
Military bill to establish 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 nc
person can be called criminal or an offender fol
doing an act which, when done, was not prohibited
by law.


But as to the measure of punishment, 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 OF
unusual The military commission may try the
accused, fix the measure of punishment, even te
the penalty of death, and direct the execution oi
the sentence 1t is only when the sentence affects
the 'life or liberty Of the person that it need be
approved by the Commanding General, and only il
needs also the approval of the President.


As to crimes or offences against the laws of the
United States, the Military authority can take nc
cognizance of them nor in any way interfere with
the regular administration Of justice by the ap.
propriate Federal Courts.


In the opinion heretofore given upon other ques-
tions arising under these laws gave, at large, fol-
your consideration, the grounds uponwhich my con.
clusions were arrived at, intending thereafter to
state these conclusions in concise and clear sum-
mary. now proceed to execute that purpose,
which is made especially necessary from the con.
fusion 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 publ
cation and in part by the inaptitude of the gener
al reader to follow carefully the successive and de-
pendent steps of protracted legal opinion.


SUMMARY.


WHO ARE ENTITLED TO REGISTRATION.


l. 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.


g 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
ganst flsy in the oath, provides that if false the
person taking it shall be tried and punishedfo for per-
jury. go


No provision is made for challenging the qualif.
cations of the applicant, or entering upon any trial
or investigation of his qualifications, either by wit
nesses or any other form Of proof.


8. As to citizenship and residence.


The applicant for registration must be citizen
of the State and of the United States, and must
be resident of a county included in the election
district He may be registered if he has been such
citizen for period less than twelve months at the
time he applies for registration but he cannot vote
at any election unless his citizenship has then ex-
tended to the full term of one year As to such q
~ op cbo
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 then been &C
complished.


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 requi-
red from him.


S. 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 parti-
cipaton in any rebellion against the United States,
or for felony committed against the laws Of any
State or the United States, can safely take this
oath.


The actual participation in rebellion, or the
actual commission Of felony, does not amount to
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.


I. As to disfronc1isen,ent arising from having
held office toAoeced Iy participation IN rebellion.


This is the most important part Of the oath, and
requires strict attention to arrive at its meaning
deem it proper to give the exact words The ap-
plicant must swear or affirm as follows:


''That have never been member Of any State
Legislature, nor held any executive or judicial Of


flee in any State, and afterwards engaged in an in
surrection or rebellion against the United States,
or given aid or comfort to the enemies thereof :;
that have never taken an oath as member OF
Congress of the United States, or as an officer of
the United States, or as member of any State
Legislature, or executive or judicial officer Of
any State, to support the Constitution of the Uni
ted 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 dlsqual-
ify person under these clauses: First, the office
and official oath to support the Constitution Of the
United States: Second, engaging afterwards In re-
bellion. 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 dis