v r i - n.' , t - - t lu i II (T .u VOL. XVI HO. 225. WILMINGTON. N- C, WEDNESDAY MORNING, JUNE 19, 18G7. AVHOIiE NTOEBER 4,638. ;, I I ,i- ! T II 12 DAILY J OURN A L . KNGKLIIAIU) 4t PIUCE. Proprietors. - . Terms f Raberlptlni Dany Taper, one year, inyarlably in adTanc,ttO 00 ' . six month. , u J" , 5 00 three months, " ' 8 00 " one month, " 1 00 YTockly Taper, one yew, " j" 3 00 - eixmonths, " " 2 00 All letters on bnslnos connected with this office must be addressed to the proprietor!. ... - , IlaUi of Adrertislag i AfiTKATiazvzirrt will be inserted at the rate of $1 per square for the first insertion; $3.60 per week j and $3 per month. , Tra lines or loss are conntod as a square, ton;; r Adrortiscments In proportion. Advertisements Inserted eyerr other day are charged as new at each and every insertion. Advertisements ordered on the inside will he charged 60 per cent, additional to shore rates. " Marriage, Death and Obituary Notices ar charged as Advertisement!. - No publication roflectlng upon private character will be allowed In our columns, either as advertise ments or otherwise. ' S . -tar, No publication made without a responsi ble same. , . TIIE DAILY JOURNAL. WILmNOTON. n. a WEDNESDAY. JUNE Id. 1867. G0YERX3IEST IN TIIE SOUTH. DELATIONS OF THE CIVIL AND MILITARY AUTHORITIES. Opinio ef the Attorejr Q.aera.1 tm. to the Powers or the Military Commanders, ana ' lidinsry of the ttacUfleatlons of Voters. ' ' ' ! Attorney Gewebjll's Office, ) June 12, 18G7. J The President : r. N I Sib On the 21th ultimo I had theiionor to transmit for your consideration my opin ion upon some of the questions arising un- uer tne reconstruction acts therein re ferred to. I no-w proceed to tire mr ODin ion on the remaining questions, upon which the military commanders require instruc tions, ' . . First, as. to tho powers and duties of these commanders. ' . ( The original act recites in its preamble that " no legal State governments or ade quate protection for life or property exist " in those ten States, and that "it is neces sary that peace and good order should be enforced " in those States " until loyal and republican stato governments can bele . gaily established. " t The first and second sections divide these States into live military districts; subject to tho miutary authority of the United btates as thereinafter prescribed, ana 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 his duties and enforce his authority within his district .!' The i third section declares, " that it -shall be the duty of oach offlcer assigned as aforesaid to protect all persons in thqir rights of person and property, to suppress insurrection, disorder, and violence, and to puaish, or cause to be punished, all dis turbers of the public pcaco and criminals ; nnd, to this end, he may 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 Bhall have power to organize military com missions or tribunals for that purpose ; and all interference under color of State authority with the exercise of military au thority under this act shall be null and void." . . The fourth section provides" i" that all persons put under military arrest by virtue ox this act snail uo tricu witnout unneces sary delay, and no cruel or unusual punish'1 went shall be inflicted ; and no sentence of any military commission or tribunal hereby authorized, affecting the life or liberty of any person, shall be executed until it is ap proved by the officer in command of the ,.- district, and the laws and regulations for tho government of the army shall not be affected by this act, except in soMar as they conflict with its provisions : Provided. , That no sentence of death 'under the pro- visions oi wis act auan do cameu into effect without the approval of the Presi dent." , . . , . . i The fifth section declares the qualification of voters in all elections, as . well to frame the new constitution for each State as in the elections to be neia under the provi- Bional government until the new State con stitution is ratified by Congress, and also fixes the qualifications of the delegates to frame the new constitution! ' . . ! ' The sixth section provides, "That until the people of the said rebel States shall be . by law admitted to representation in the ' Congress of the United States any civil governments which may exist therein shall bo deemed provisional only, ana in oil re epects subject to the paramount authority .11 TT .'i i fl 1 t A A 1 IJL. OI mo umioa ouiies at any ume to auousu, modify, control, or supersede the same , and in all elections to any office under such provisional governments all persons shai be entitled to vote, and none others, who . are entitled to vote under the provisions of the liita section of this act ; and no person shall be eligible to any ollloo under any such provisional governments who wouli be disqualified from holding office under the provisions of the third article, of said constitutional amendment." ' I . Tho duties devolved upon the eommand ine treneral by the supplementary act re late altogether to the registration of voters -:&nd the elections to be held under the pro ''visions of that act And as to these duties. they are plainly enough expressed in the act; ana it u uui uiiuciswAfu tuau uj tion not heretofore considered in the opin ion referred to has arisen or ia likely to arise in resrect to them. My attention; therefore, ia directod to the powers and du ties of the military commanders tinder the oriP".-j. act. " : ' ' . ' y'e eee clearly enoueh that this act con' tcmpb'.cs two distinct governmenta in each of these ton Btates tie one military, the other civil. The civil government is re- cogruzp i as existing at the date of the act The military government is created by the act Dc'-h aro providonal, and both are to conUn-ao uuld the new State constitution i3 fr-. 1 aal the State is admittod to rei . rcrc-Utioa in Corrjesa. ..When that event !a!ccs r' ice, both theso prov: icrl noycrn Mcr.' i f "J to conao. la c ' :sr; Uion of tLi j ' i x .ry r ,1 t i'y r - ;1 j c ci t 3 ci' A t"thor---"..cr. -Tha both, and must obey boUi, in their respec tive jurisdictions. - r There is, then, an imperative necessity to define as clearly as possible the line which separates the two jurisdictions, and the exact scope of the authority of each. Now as to the civil authority, recognized by tho act as the provisional civil govern ment, it covered every department of civil iurisdiction in each of these States. It. iad ail tho characteristics and powers of a State government, legislative, judicial, and executive, and was in the full and lawful exercise of all these, powers, ' except only that it was not entitled to representation as a State of the Union. This existing gov ernment is not 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 oi its functions, repealed or mourned by this act, save only in the qualifications of voters, the qualifications of persons eli gible to office, the manner of holding elec tions, and the mode of framing the consti tution of the State. The act does not in any other respect change the provisional government nor does the act authorize the military authority to change it The power of further changing it is reserved, not granted, and it is reserved to Congress, not delegated to the military commander. Uoncrees was not satiahed witu the or gauio law, or constitution under which this civU government was established. Thai constitution was to be changed in only one particular make it acceptable to- Con gress, and that was in the matter of the electiveiranchiie. The purpose, the sole object of this act is to effect that change, and to effect it by tho agency of the people oi the State, or such oi them as are made voters, by means of elections provided for in the act, and in the mean time to pre serve order ;and to punish offenders, - if found necoflsary, 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 conierrcd on the military au thonty. " Whatever power is not given to the military remains with the civil govern ment -. We see, fiirBt of all, that each of these States is "mode subject to the military authority of; the United State not to the military authority altogether, but with f Vi i a .TtiMDB I litnUofiATi ' no tinikirinff a9 prescribed." I . - We must, then, examine what is there inafter provided, to find the extent and na ture of the pewer granted. This, then,! is what is granted to the mil ltary commando the power or duty "to protect all parsons in their rights of per son 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, jor, if necessary, ho 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 j all persons in-their rights of person and property. Considered by it self, and without reference to - the context and to other provisions of the act it is lable, from its generality, to be misunder stood. : j 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 com manders have understood this grant of power as all-comprehensive, conferring on them the power to , remove the executive and judicial j officers of the State, and to appoint other ollicers in their places, to suspend the legislative power of the State, to take under their control, by officers ap pointed 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 offi cers and agents, to change the existing aws in matters affecting purely civil and private rights, to suspend or enjoin the ex ecution of judgments and decrees of the established State courts, to interfere in the ordinary administration of justice in the State courts, by prescribing new qualifica tions for jurors, and to change, upon the ground of expediency, tho existing rela tions of the j parties to contracts, giving protection to one party by violating the rights of the other party. I feel confident that tnese military o Ul cers, in all they have done, have supposed that they hod full warrant lor their action. Their education and training have not been of the kind to fit them for the delicate and difficult task o'f 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 bo 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 be fore, by which, in certain particulars and Hor certain purposes, the established prin- cipie uiat me miuiary suau ue BUDoruinare to the civil authority, is reversed. The .rule of construction to be applied to such a grant of power is thus stated in JJwams on Statutes page 652 : "A statute creating a new jurisdiction ought to be construed strictly." i U aided by this rule and in the light oi other rules of reconstruction familiar -to every lawyer, especially of those which teach us that in giving construction to sin gle 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 oi tms pan oi mo out. To consider, then, in the first place, the terms of the grant , It is of a power to pro tect all persons m 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 euect, it is a police power, and the protection here intended is protec tion of persons and property against vio lence, nnlawiui lorce, and criminal infrac tion! It is given to meet the contingency recited in the preamble, of a want of "ade quate protection for life and property," and the necessity also recited, " that peace and good order should be enforced..', s . This construction is made" more appar ent when we look at the immediate oontext, and see in what mode and by what agency this protection is to be eccurod. This duty or power of protccticn ntDto periormcd der, and violence, and by the punishment i either by the agency of the State courts or by miutary commissioners, when neces-; sary, of all disturbers of the public peace and criminals ; and it is declared that all interference, under color of State authori ty, with the exercise of this military author ity shall be null and void. The next succeeding clause provides lor a speedy trial of the offender, forbids the infliction of cruel and unusual punishment, and requires that sentences of these mili tary courts which involve the liberty orlife of the accused shall have the approval of the commanding general, and as to a sen tence of death, the approval of tho Presi dent before execution. . ? All these special provisions have refer ence to the preservation of order, and pro tection against violence and crime. ' They touch no other department" or function of the civil administration, save only its crim-i iual jurisdiction," and even as to that the clear meaning of this act is, that it is not to be interfered with by the military au thority, unless when a necessity for such interference may happen to arise. ; . L see no authority, nor any shadow of authority, for interference . with any other courts or any other jurisdiction, than crim inal courts in the exercise of criminal ju risdiction. Tho existing civil authority in all its other departments, legislative, exe cutive, and judicial, is left untouched. There is no provision, even under the plea of necessity, to establish, by military au thority, courts, or tribunals for the trial of civil cases, or for the protection of such ci vil rights of person or property as come within the cognizance of civil courts as con tradistinguished from criminal courts. Iu point of fact there was no foundation for such a grant of power, for the Civil Rights act, and the ifreednian s Uureauact neith er of which is superseded by this act, made ample provision lor the protection oi all merely civil .rights where the laws or courts of these Stirtes might fail to give full,, im partial protection. . - I find no authority an where in this act for the removal by th(Tmilitary commander of the proper officers of a State, either ex ecutive or judicial, or the appointment of persons to their places. Nothing short of express grant of power would justify the removal or the appointment of such an cm cer. There is no such grant expressed or even implied. On the contrary, the act clearly forbids it The regular State of ficials duly elected and qualified are en titled to hold their offiqes. They, too, have rights which the military commander is bound to protect not authorized to destroy. ' We And 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 provis ions of the fifth section of this act : and no person shall be eligible to any office under such provisional governmenta whofwould 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 tne people, and not by any other agency or any other pow er. either StatoLpr federal, civil or military. I find it . impossible, under the provisions of this act, to comprehend sack an official as a Gov ernor of one of these States appointed to office bvoneof these military commanders. Certainly he is not the Governor recognized by the laws of the State, elected by the people of tlie btate, ana clothed as Buch with the chief executive power. Not is he appointed as a military governor ror State which has no lawful Governor under the pressure of an existing necessity, to exercise powers at large. The intention, no doubt, was to aDDomt him to nil a vacancy occasioned by a mil itarr order, and to DUt bim in the place of the re moved Governor to execute the functions of the office as provided by law. The law takes no cog nizance 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 Ju dicial officers of the State. If the Military Com mander can oust one from his office, no can oust them all. If he can fill one vacancy, he can fill all .r . a n -11 : :i 2 : .. .1 : -a: - vacancies, ana wins usurp au civu junauivuuu in to his own hands or the hands of those who hold their appointments from bim and subject to his power of removal, ana tnus rrustrate tne very rip it Boo.nrod to the people bv this act. Ccrtain- it gives with all its severity, the right of electing their own omcers u stui leit witu uie peopie, ana it miint V preserved. . I must not be understood as fixing limits to the power of the military, commander in case of an acta al insurrection or riot. , It niay happen that an insurrection in one of these btates may be .so general and formidable as t require the tempo rary suspension of au civil government ana tne establishment of martial law in its place, and the same thing mav 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 la neoeasary to meet sucn emergencies lue raw- tarv eommader mav properly exercise. I confine myself to the proper authority of the Military Commander, where peace and order pre vaiL 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 Mil itary Commander can oetter .penorm nis auties and carry out the eeneral purposes of the act by the agency of civil officers of his own choice, rather than by the lawful incumbent. The act gives mm no right to resort to such agency, but does give him the richt to have sufficient military force to enable him to perform his duties ana enforce ms signed. In the suppression of insurrection and riot, the mili tarv commander is wholly independent of the civil authority So, too, in the trial and punish ment of criminals and offenders, ho may super cede the civil jurisdiction. His power is to be ex ercised 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 eucnomcerto perrorm ms auties ana enforce his authority, and military tribunals of his own appointment to try and punish offenders. These are strictly military powers ? to be executed dj military aumorny, not or tne ciyii auuiurujr ut by civil officers appointed by him to perform or dinary 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 prper function is to preserve the peace, to act promptly when tne peace is Bro ken, aad restore order. When that is done, and tho civil authority may again safely resume its fanctions, the military power again becomes pas sive, but on guara ana watcamu tms, in my judgment, is the whole scope of the military pow VJ W1UC11CU VJ Ml, UU &U M&A.1U w MUM construction of the act. I have not found it ne cessary to resort to the strict construction wmch 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 mili tary 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 bis district un der any idea that he can make a better code than the people have made for themselves. Thepub lio policy is not committed to his discretion. The Onnsrreaa which passed this act undertook, in cer' tain gravs particulars, to change these laws, and these chancres beinz made, the Congress saw no further necessity of change, but were content to leave all the oth6r laws in fall force, but subject to this emphatic declaration, that as to these laws and such futnre changes as might be expedient, the question of expediency and the power to alter, or abolish, was reeervea lor me paramours au thoritv of the United Etates at any time 'to abol ish. modifr. control . cr enrerseda the eame Where, then,' does a military commander find Td$ authority " to abolish, mo ..:y, control, or enor sene," any one of te laws ? The er-eration of the estr&orl .ary powers of the districts would extend this opinion to an unreasonable length. A few instances must suf- In one of theae districts the Governor of a State has been deposed tinder a threat of military J rorco, ar.a another person, cauea a uovernor, na been appointed by the military commander- to fill bis place ; thus presenting tl ftratige efiectacle of an ofdcial entrusted with " the chief puwvr to execute the laws of the State, whose authority is not recognized, by the laws he is called upou to execute. ' ' In tho same dixtrict the judge of one of the criminal courts of the Ftate has been summarily dealt witu. The act or uongrea aos give au thority to the military commander, in casts of necessity, to transfer the jurisdiction of a crimi nal court to a military tribnaaL That being the specific authority over the criminal courts given by the act, no other au'hority over them can be lawfully exercised by the military commwidtr. But in this inaUnco the jndge has, by military order, been ejeeted from his offiee, ana a private citizen has been appointed judge iu his place by military suinomy, m uw m mo cipiciae tu criminal jnrisdietion "over au crimes, misdemean ors and offences," committed within the territorial jurisdiction of the conrt. This military appointee is certainly not aotnorizoa to try any one ror any oif'ence as a number of a military tribunal, and he ban juatas little authority to try and punish any offender as a judge of a criminal court of the State. . i ... ' r - . . t It happens that this private citizen, thus pW.ed on the-bench, is to sit as tne sole judge in a crim inal court Whose jurisdiction extends to cases in volving the life of the. accused. If he has any ju dicial power in any case, he has the same power to take cognizance of capital cases, and to sentence the accused to cleat n, ana order ms execution, a strange spectacle 1' where the iudze and the crim inal may very well "change places"; for if the criminal has unlawfully taken life, so, too, does the judge, 'ltiis is the inevitable result; for the only tribunal, the only judges, if they can be call ed judges, which a military comnifendor can con stitute and appoint under this act to inflict the 'death penalty is a military court composed of a toara, ana cauea in the act a " military commts sion." i - !- . I see no relief for the condemned against the sentence of this acent of the military commander. It ia not the sort of court whose sentence of death must.be first approved by the commander and fl nally by the President, for that is allowed only where the sentence is pronounced by " military commission." Hot is it a sentence pronounced by tne rigntroi court oi tne state, but by a court ana by a judge not ciotnea with authority under tne laws of the state, but constituted by the military authority. Asthe representative of this military autnonty, tins act forbids intrtrerence ' under color.of State authority " with tho exercise of ihis functions. In another one of thene districts a military order commands the Governor of the State to forbid the reassembhng of the Legislature, and thus 6U3- Eends the proper legislative power of the State a the same district an order has been issued " to relieve the Treasurer of the State from the duties, bonds, books, papers, fcc. appertaining to his of fice," and to put an "assistant quartermaster of United btates volunteers in place of tlie removed Treasurer; tne duties or whicli quartermaster treasurer are thus summed up: He ia to make to headquarters of the district " the eame reports ana returns required from the .Treasurer, and a montuiy statement ol receipts and expenditures : he will pay all warrants for salaries which may be. oribecome,- dtio, ana legitimate expenditures for the support of the penitentiary, State asylum, and tne support of the provisional Stats government; but no scrip or warrants for outstanding debts of other kind than those specified will be paid with out specifd 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 regu larly numbered, and in occasional circulars, Live been promulgated, which already begin to assume the dimensions of a code. These military orders modify the exist ing law in the remedies for the collection of debts, the enforcement of judg' ments and decrees for the payment of money, staying proceedings instituted, pro hibiting, in certain cases, the right to bring suit, enjoining; proceedings on execution for the term of twolve months, giving new liens in certain cases, establishing homestead exemptions, declaring what shall be a legal tender, abolishing in certain cases the remedy by foreign attach ment, abolishing bail as heretofore authorized' incases ex contractu, but not in "other cases known as ex delicto; : and changing, in scvera. particulars, the existing laws as to the punish ment of crimes, and directing that the crimes re ferred 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 iurisdiction thereof." une of these gener al orders, being number ten of the series, contains no less than seventeen sections embodying the va rious cnanges ana nioditi cations whicn nas e been recited. : The question at once arises in the mind of eve ry lawyer, what power of 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 iurisdiction. Tho concluding oar- agrapn ot tms -order Wo. lu, is in these words: "Any law or ordinance heretofore in force in North Carolina or Sonth Carolina, inconsistent with the provisions of this general order, are here by suspended and declared inoperative." Thus announcing not 6nly a power to suspend the laws but to aeciare them generally inoperative, and as suming full powers of legislation by the military authority. . ! a xhe ground upon which these extraordinary powers are based is thus set forth in Military order Ho. 1, issued Jn this district: "The civil government new existing in North and South Car' olina, is provisional only, and in alt respects sub ject to the paramount authority of the United States at any time to abolish, niedify. control, or supersede the same." Thus far the provisions of tne act ot uonerees axe well reciteo. wnat lol- lows is in these words:. "Local laws and muni cipal regulations not inconsistent with the Consti tution and laws of he United States, or the pro clamation or tne rresiant. or witn such regula tions as are or may be prescribed in the orders of tne commanding general, are hereby declared to no in xorce, anain coaiormity therewith, civu ofli cers are hereby authorized to continue the exer cise of their proper functions, and will be respec ted ana oneyea oy tne inhabitants. -' w - The construction of his powers under the act of uongress piacus tne military commander on tne same footing as the Congress of the United States. it assumes tnat " the paramount authority of the united Mates at! any time to. abolish, modify. control, or supersede," is Tested in him as folly as it is reserved to Congress. He deems himself a representative of that paramount authority. no puis utuiBcui itjjuu au eijuiuuj vfiui me law making power of the Union, the only paramount authority in our government, ao far, at least, as the enaotment of laws is concerned. He places himself on higher ground than the President, who is simply an executive omcer. lie assumes, di rectly or indirectly, all the authority of the State legislative, executive and judicial, and in effect declares " l am tne Btate." ., irezret tnat i una it necessary to speak so plainly of this assumption of authority, I repeat what I have heretofore Baid. that I do not doubt that all these orders have been issued under an honest belief, that they were necessary or expedi ent, ana rauy warranted Dy tne act or 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 thevils 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 ot 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 go vernment may be in power, the seeds will be sown for such a future harvest of litigation as has never been inflicted noon anv other people. ' There is. in mv opinion, an executive duty to be performed here which cannot safely be avoided or delayed ; for notwithstanding the paramount authority assumed 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. Thev are responsible to the President for the proper execution of their duties, and upon him rests the final responsibility. - They are his se lected agents. His duty is not all performed by selecting Buch agents as ne deems competent: but the duty remains with him to see to it tha: they execute their, duties faithfully and according to law. It ia 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 con stitutional obligation "imposed upon him to see that all the lawa be faithfully executed." it can searceiy be necessary to cite authority for so plain a proposition as this. Kever M we Lave a roceut decision completely ia j c; Irnyta nscllrrfer toit.- ' . - it1 naJa ty t-e 1 :3 c: States at its late, term, for leave to file a bill gainst the President Of the United States to en join him against executing the very acts of Con gress now under consideration, tne opinion or tne court upon dismissing that motion and it seems have been unanimous was delivered by the Chief Jnstir e. I make the fUlowing quotation froDi lho opinion : "Very iifien-Bt is tluTdutyof the Prf-sHluta in am exem of the power to soe 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 gene rals to command in the several military districts,; and to detail eumcient military force to enabic such oflicerB to discharge their duties under the law. By the supplementary act, other duties are imposed tn the several commanding generals, and their dunes must necessarily be performed under the e upervision cf the President as commander-in-chief. The dutyythKt imposed on the President is in no just sense ministerial,! It is purely executive and political," .. . .- -. -. ' jertun questions iave been propounded from one of these military districts touching the con struction of the power of tho military command er to constitute military tribunals for. the trial of Ofi'onders, wfftch 1 will next consider. . ; V hilst the act does not in terms displace the regular criminal courts of the btate, it does give the power to the military commander, when in his jadgmfst a necessity arises, - to take the adminis tration of tha criminal law into his own haurfp. and to try and puawh offenders by means of miu iary commissions. . - in giving construction to this power we lnuat not forget the recent and authoritative exposition given oy tne supreme txmrt of the Unued sutes as to the power of Congress to provide for milita ry tribunals for the trial of citizens in time of peace, and to the emphatio d claration as to j which there was no dissent or difference of opin-i ion 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 the Chief Justice will suffice. "We by no moans 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. 1 What we do maintain is, that when tne 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 de termine in what States or districts sutu great and imminent public danger exists as justifies the au thorization of military tribunals for the trial of crimes and offences against the discipline or secu rity of the army or against the public safety. liiiniraig myseir nere simply to tne construc tion of this act of Congress, and to the question in what way it should be executed, I have no hes itation in saying that nothing short .of an abso lute or controlling necessity would give any color of authority for arraigning a citizen belore a mil itary 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, ac cording t-Tlaws of the land. When a citizen is ar raigned before a militarv commission on a crimin al charze. he is no loncrer under the protection of law, nor surrounded with those safeguards which . . .1 . .1 .i . . . . mi piuviueu ui uio uonsutution. Ihis act, passed in a time of peace, when all the courts, State and Federal, are in the undisturbed exercise of their Iurisdiction, authorizes, at the discretion ot a military officer, the seizure, trial. and condemnation of the citizen. The accused may be sentenced to death, and the sentence may be executed, without an mdctment. without coun sel, without a jury, and without a judge. A sen-. tence which forfeits all the property of the accused requires no approval. If it affects the liberty of tne accused it requires the approval of the com manding General ; and if it affects his life, it re quires tne approval or tne General and or the President. ilditaryNind executive authority rule throughout, in the trial, the1 sentence, and the ex ecution. No Juibeaa corpus from any State Court can: be invoked ; for this law declares that "all interference, under color of State authority, with il .- . ; . i , . , . , mo cicixiBB vi military aumomy under tms act, shall be null and void." I repeat it, that nothing short of ' an absolute necessity can give any color of authority to a mil itary commander to call into exercise such a power. It iSj power, the exercise of which may involve him and every one concerned in the gravest re sponsibilities. The occasion for its'exercise should be reported at once to tha executive for such in structions as may be deemed necessary and pro per. v " 5 " t'-: - yuestions nave arisen whether, tinder this pow er, these military commisonera can take eoeni. zance of offences committed before tho passage of we act, ana wneiner tney can try ana punish for acts not made crimes or offences br Federal op State law, s j ":: I am clearly of Opinion that thev have no inris- diction as to either. ; They can take cognizance of no effence that has not happened after the law took effect. Inasmuch as the tribunal to punish, and the measure or degree of punishment are es tablished by this act, we must construe it to be prospective, and not retroactive. Otherwise it would take tho character of an ex vast fanfa law. Therefore, in the absence of any language which gives the act a retrospect. I do not hesitate to sav it cannot apply to past offences. ;inere is no legislative pawer 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 of fender for doing an act which, when done, was not prohibited by law. ; . f Uttt, as to the measure of punishment. I recrret to be obliged to say that it is left altogethetto the uui;ulttunu, wiw pniytnw umitation tnat !,P!. nt "flwwea e?14!1 ot be cruel or unusoal. The military commission may try the acouseu, nx tne measure oi punishment, even to the penalty of death, and direct tho execution of the sentence. It is onlv when the sentence airct the " life or liberty " of the person that it need be approved by the commanding eeneral. and only in cases where it affects tho life of the ac cused that it needs also the approval of the Presi dent. - . ,. . ; . . . ;. Aslto crimes or offences acaintit tha hn nf iha United States, the military authority can take no cognizance of them, nor in an-vwsv intrferf? with the regular adninistration of justice by the ; ap propriate Federal courts. ; , in the opinion heretofore eiven uocn other ntipa- tions arising under these laws. I cave at lrtrrt for your consideration the grounds upon which ; my conclusions were arrived at, intending thereafter to state; these conclusions' in a concise and ;clear summary.: now propose to executejtbat purpose, which is made especially neeessary from the con. fusion and doubts whicn have arisen upon that opinion in the public mind, caused in part bv tha errors of the telegraph and the press in its publi cation, and in part by the inaptitude of the gene ral reader to follow carefully tho successive and dependent Bteps of a protracted legal opinion. ; :: KOI" : p STJMHAKT. - i' - WHO AaZ ES TITLED TO BEGISTKATtOK. 1. The oati prescribed in the sUDPlemental 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 voiers. a. ine ooara or registration have no authority to administer any other oath to the persons ap plying for registration than this prescribed oath ; uur iu auiumiBbor any oaw to any person touch ing the qualifications of the applicant, or the fal sity 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 quali fications of the applicant, or entering upon any trial or investigation f his qualifications, either by witnesses or any other form of proof. . 3. As to citizenship and residence, t H The applicant for registration magt be a citi 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 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 cit izenship has then extended to the fall 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 elec tion, upon reference to the list, whether the full term has then been accomplished,; v; : 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. -at , -5, ISO one who is not twenty-one year of age at the time of registration can take the oath, for he muBt iBwear that he has then attained that age.- -' Ko one who has been disfranchised for parti cipation la any rebellion against the United States, or for -felony committed against the laws of any Etate or of the United States, can safely take this The actual participation in a rebellion, or the actual commission of a felony, does not amount ta disfranchisement. The sort of disfranchiae aent here meant is that which is declared by law passed by competent authority, or which has been fixed noon the criminal by tne sentence of the court Xkli'Jh tried him for the crime. - - . -No law of the Uni:ed States hai declared the fer,lty of Us:''-hi8eT',m,,t f"-r part Ration lat .eri1 W3 t., - ,. I rui; tno -n any ' ""!'"?! ."ji-ic crcftl-r-"-' i f scept i - , as t3 vlu i k j f . . 1 i 7. A lu ilhf)-anchijemiii arhinQ from Jiaiitig lufbl ol' folio'twi by frrrticipatiim in rtbellionl. This is the most important part of the oath, and requires strict Attention to" arrive at its meaning. I deem it proper to give th exact word. The applicant must swear or affirm as fellows r 1 " That I have never ben a member 1 of any Ste legislature, nor hold any executive or jnli cittlftico ia any State, and afterwards engaged jin an Hnrtureet'ion or rebellion against the. United States, or given aid or comfort to the cntmips threof; that I have never taken an oath as; a member of Corgress of the United States, or as an offiser of the United SUtcs or as a member tl any State Legislature, or as an executivo or judi cial officer of any State, to support the "Constitu tion of the United Statos, and afterwards engaged in insurrection or rebellion against the United States, or given aid or comfort to the enemifes thereof." . ... i ., ' . . j Two elements must concur in order to disqual ify a person under these clauses : First, the df fice andofficial oath to support the Constitnt-' in of the United States ; second, engaging after ward in rebellion, lioth must exist to work diis- qu&lificat.cu, and must happen in the order pf time mentioned. - ': A person who has held an ofCse and ttkfri the oath to Kiiipiwt the Foderal Cotmtitutian, and lias not afterwards engaged in rebellion, in not dis qualified. So, too, a person who has engaged in rebel iin, but has not Theretofore held an offieo and aken that oath, is not disqualified. " 1 - s. 0fcr ftfltm Uidtea Mates. . .-..4 . j An to Uie the kuijruajfe is without limitation. TBe person who has ut any time prior to tho rel')lion held any oftlco, civil or military, under the thiUxV HtateK and h:w taken an official oath to support the Constitn tiou of the United Statea, Is suhject to disquallUcatlon, tmnwipai ojnrrra oi any state, prior to tlie re-buil-lion, are not subject to disanattttcaUon. ; w - t 10. Mimk-iiMl ojltctrs, that is to say, onicers of lncer- poraiea cities, towns, ana villages, sum as mayors, iu dermen, town council, poBee, and other city or town ollicers, are subject to tliwqiialiacatlon.. ; 11. 1'erHons who have, prior to the rebellion, bean members of the Congress of the United States, tr mem- ners or a Mate lLsiaiure, are sunject to ulHqualtuca tion. liut those who have been memln-TS of couvem tions framing or amending the constitution or a State, prior to the rebellion, are not suhject to dhNiualhlcation. - 12. AU the executive or judicial oftlcers of any State who took an oath to support the Constitution of the united 8taten are - suhject to (lisquallncaUon, anil in these I include county ollicers, as to whom 1 made a reservation in the opinion heretofore given. After full consideration I have arrive! at tlie conclusion that they aresnijjecttodisctuauncationutney were required to take as a part of their onlchu oata, the oath to support UieConMiOitioiititlm nitM StaU. ia. Persons who exercised mere agencies of employ ments under State authority, are not disqualified : such as eoinmlHsioncrs to lay out roads, couunissioners of public fw -ks; visitors of Btate institutions, dU-ectors sf state bunks or other State Institutions, examiners f nanks, notaries public, commissioners to take acknow ledgciuenUi of deeds, and lawyers. . r r . j EXGAI' n REBELLION. " Having stieciiied what offices held by any one brio to the rebellion come within the meaning of tho law, It is necessary next to set forth what subsequent conduct ft xes upon suth person the offence of engaging In ro- ouiiiou. i repeal, mat two unngs must exist as to any person to disqualify him from voting t-Hrst, the otllce held prior to the rebellion, and afterwards, participa tion iu the rebellion. k . i 14. An act to ox upon a person tlie offence of engag ing in rebellion under this law must be an overt an voluntary act, dope with the intent of aiding or furthen. 1" uic tumiuou uiiiuwiui yurjiose. a person iorcea Pinto the reil service by conscription, or under a para. mount authority which he could not salelr disobev. and wno wouiu not jiave entered such semce u leit nee te the exercise of his own will, cannot be held to be di qualified from voting. -.- is. iere acta ofciiarity, where the intent Is to reliev the wants of the object of such charity, and not done ia aid of the cause in which he may have been eugageilL do not disqualify. - But oraranized contributions of food and clothing for the general relief of peivoiia engaged ll, .!') ! i . ... n,.,1 i ,. t.f a . . ..1 w .... 1 . ....... hut contributed to enable them to perform their unlawv ful object, may be classed with acts whlchdo dlsquahfy; Forced coutributiuns to the rebel cause, in tho form of taxes or military assessments, vfrhich a person mnj uo couiH.'ufHt' ro pay or coumoute, uo not niuaiiiy, tiui voluntary contributions to tne rebel cause, evea such indirect contributions as arise from the vohintarv loan of money to reljel authorities, or pnrchaseof bonls or securities created to atrord the means of carrying on the rebellion, will work disnualiiicaUon. i 10. All thowe who, in legislative or other onlcial capa tity.were engaeed In the furtherance of the comma n unlawful purpose, where the duties of the ottlee no cessariiy nad reiauon to the support of the rebellion! sucn as members or the reei conventions, congessesl ana legislatures, diplomatic agents of the rebel Com reaeracy, and other officials whose offices were created for the purpose of more cffectuallv can-vino- on hostiii; ties, or whose duties appertained to the support of the iraiia muw, must, uc ueiu to dc aisquaiiued. ; " . Hut officers who. durlnir tho rebeliioiL official duties not Incident to war, but only such duties as belong even to a Btate of peace, and were necessary to the preservation of order and the administration of law, are not to beconsidered as thereby engageing lu rebellion or as elsquallfled. Disloyal sentiments, opin ions, 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 disqualifi cation. ---t'r ' . ft ' - 17. The 'duties of Vie board appointed tolper(njena the eMii'ms. ' . This boanl, having the custody of the list of reglster erl voters In the district for which it Is constituted, must see that the name of the person oilering to vote Is found upon the registration list, and if such proves to be the fact, It is the duty of the boarl to receivehis vote. They cannot receive the vote of any person whose name is not upon the list, though he nmy be ready o take the registration Bath, ami although he may satisfy them that he was unable to have his name registered at the proper time in consquence ot absence, sickness, or unit Uwnc t ,'.;- the board cannot enter into' any inquiry as to tlie qnaliiicatious of any person whose namo is not on the list, or as to tho qualifications of any person whose name is on the list. -y . . ' is. Hie mode of voting is provided In the act to be by oautH. l .ie board will keen a record and null-hook of the election, showing the voti 11 f tri mTI T persons elected by putrality of the votes cast at the eiec: tion, and make returns of these to the commanding general of the district. . 19. Tlie board appointed for registration and for ' su perintending the elections, must take the oath prescriii ed by tlie act of Congress approved July 3, 182, enUtJed "an act to prescribe m oatli of office." . , I have the honor to be, with great respect, p - . '3 w1 -.-,'HB!t Stakueky, Attorney (Jcn'L Educational. MRS. RANS031S FEMALE SEMINARY, WIIiMINQTONi N'.'O,' THE BECOlfo TEKJI OF THIS INSTITUTION win begin on the 3d of February and elose on the 28th of June next. : 2 - ; - : I A lkiard of Visitors," composed of srentlemon whose names will be announced hereafter, has been invited.. , This Board will be present at' Uu examinations, and will visit the Institution at other times to examine Into all matters pertaining to the Seminary, and a full report of its observa tions will be made; . .r, ; .-. , 4 - It is important that pupils intending to enter tor tne next term snouiu ao oo as eoou as poasi- . For particulars, apply to ; , ; , Ms. ItOBltBT UANSOAI, i . t - - 1'rlncipaL i Jan. 28 ' . 104-tf N. C. MILITARY AXD P0LYTECNIC ACADEMY, ! HILLSBORO'i N. G. ' A GEE AT 6CH.OOL OF Theoretical and Applied Science. mH& second Sesston of tne Klnth Aede JL mic year, opens Jaly 1st, 17. i Principal studies of regular course, Matfternal ical and Pv steal Sciences, Engineering, Architec ture and Drawing,' Latin, French and Belles Let- vreo, jcuucs, rouucai riconomy ana History, . . Diplomas conferred upon graduates in the reg ular course. - . . , ; . J 4 Persona desiring to qualify themselves for Cir.il Engineering or Surveyors, Ac, are ottered a special course of Engineering, Architecture and Drawing, which they may follow, throughout or in part, to the exclusion of all studio unnecessary to their purpose. A Commercial coarse is given to those who wish to prepare for business hie. - - - No military duties required beyond enough drill for healthy exercise, ilxpenaes moderate. Loca tion healthy? l " For tircalars containing full Information, ad dress - ' ' . G.,3. E. COLSTON, . . HUlsboro' N.C. may 23 ' ; . ;m 202-eodtIstJaly U -B I If G n A M f C D 0 0 Lr , ; f iiEBAKETiijLE, sr. a. . ; : L ', EAltV Term of Session of 1807 opens July 24th. Course f inotrndin CLASSICAL, ItlATUt-ilATICAL AND CCILL-CIAL. ' 7 Address - ' , - - -. ' , J -7 .COL. EINGIIA5L V jane 11 , ,t 213-ln i ' "Irsi E. At iVi:i:zz S v October 4 ca - 1 Printing. THE JOUEITAL ESTABLISHMENT. 1 LtJ X N ' I ill - IPDBBSSG1S.: SUPERIOR WORillfl GOOD WORK GUARANTEED! The Journal Office Is now better than ever prepared to do all kinds of rUIS AND 0RYVMENTAL JOB PRINTING! ' In the best styles of the art. -: , ; RAILROAD & STEAMBOAT COLOR PRIIUTIWC ; AXD KVEHT DESCBXPTIOK OF MERCANTILE PRINTING, : ' ' , 'Will roeeiye special attention. . ' , Wddinj, Business and Visiting Cards Printed in the handsomest styles, on short notioe. BLLL-IIEADS, ' 1 . " "'i' :-.f . f "-'.. - - , CIRCULAp, ' t. ' . 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