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.
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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
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