THE DAILY EVENING TELEGRAPH PHILADELPHIA, MONDAY, JUNE 17, .1867.
CP1R10N OF THE ilTOBNBT GENERAL
An to the Powers of the Milttfirjr Com
manders, and Kummaif Of the Q !
cations I Voters.
Attokh.t 0hbial'8 Omon,
"Washikotoh, June 12, 1H67.
The Presidsnt Sir: On the 84th ultimo, 1 had
the honor to transmit for your consideration my
opinion upon some of the questions arlsinc under
the reconstruction acts therein referred to. 1 now
proceed to give ray opinion on ibe remaining que..
tlonsTupon which the military commander, re-
FirVuas'w thpowers and datle. of these com-
n,i'Dieeor!Klnal act recites in Us preamble that no
legal State governments or adequate protection
Jo? life or property exist" In those -ten States, and
that "It I. necessary that peace and good order
hoold be enforced" In those S-ates 'until loyal
nod republican State government can be legally
The Urst and second sections divide these State.
Into live military districts, subject to the. military
VnThorltyof the Uuited States as thereinafter pre
crlhed, and malte it the duty of the President to
s en. from the officers of the army, a general offl
Serw he command of each district, and to famish
him with a military force to perform hi. datle. and
enforce hi. authority within his dlatrlct.
The third .ectiou declare. "That it .hall be the
duty of each officer assigned as aforesaid to protect
all person. In th-lr rights of person and property,
to suppress Insurrection, disorder and violence,
and to punish, or cause to be punished, all disturb
ers of the public peace and criminals, and to thl.
nd be may allow local civil tribunals to take ja.
rlsdiotlon of .nd try offenders, or, when In his
fadgment It may be necessary for the trial of of
fenders, he shall have power to organize military
commissions or tribunal, for that purpose; and
all interference undercolor of State authority with
the exercise of military authority nnder this act
ball be null and void."
The fonrth section provide. "That all person,
put nnder military arrest by virtueof thlsactshall
be tried without unnecessary delay, and no cruel
orunusnnl punishment shall be mulcted; and no
sentence of any military commission or trtbqual
hereby authorized, affecting the lite or liberty of
any person, shall be executed until it 1. approved
by the officer in command of the district, and the
law. and regulation, tor the government of the
army shall not be affected by this act, except la so
far as they conflict with Us provisions: Provided,
That no sentence of death under the provision, of
thlsactshall be carried into effect without the ap
proval of the President."
Xhe fifth section declare, the qualification of
voters in all elections, a. well to frame the new
constitution for each State as in the elections to be
held under the provisional government until the
new State constitution Is ratified by Congress, and
also Axes the qualification, of the delegates to
frame the new constitution.
The sixth section provides "That until the people
ot said rebel States shall be by law admitted to
representation Id the Congress of the United
States, any civil government, which may exist
therein shall be deemed provisional only, and in
all respect, subject to the paramount authority of
the United States at any time to abolish, modify,
control or supersede the same ; and in all elections
to an office nnder such provisional governments,
all person, .hall be entitled to vote, and Done
others, who are entitled to vote under the pro
visions of the fifth section of this act; and no
person shall be elegible to any office under any
each provisional governments who would be dis
mantled frpra holding ofllce noger the provisions
tu the third article Cf said constitutional amend
ment." The duties devolved upon the commanding gen
eral by the supplementary act relate altogetner to
the registration of voters and the election, to be
held nnder the provision, of that act. And as to
these duties they are plainly enough expressed In
the act, and It is not understood that any question
not heretofore considered in the opinion referred
to ha. arisen-or is likely to arise in respect to them.
Sly attention, therefore, 1. directed to the power,
and duties of the military commander, nnder the
original act.
We see clearly enough that this net contemplates
two distinct government. In eaoh of these ten
States; the one military, the other civil. The civil
government la recognized as existing at the date of
the act. The military government is created by the
act. Both are provisional, and both are to continue
until the new State constitution Is framed and the
State 1. admitted to representation In Congress.
"When that event takes place, both these provisional
government, are to cease. In contemplation of this
act, this military authority and this civil authority
are to be carried on together. The people in these
State, are made aubject to botn, ana mast obey
jDotn in tneir respective jurisdictions.
There 1., then, an Imperative necessity do define
as clearly as possible the line which separates the
two jurisdictions, and the exact scope ol the au
thority ot each.
Now a. to the civil authority, recognized by the
act as the provisional civil government, it covered
every department of civil jurisdiction In each of
these States. It had all the characteristics and
powers of a State government, legislative, judi
cial and executive, and was In the full and lawful
exercise ot all these powers, except only that it
vtas not entitled to representation as a State of the
Union. This existing government i. 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
ol its functions, repealed or modified by this act,
cave only in the qualifications of voters, the
qualifications of persons eligible to office, the man
ner of holdmg elections, and the mode of framing
the constitution ot the State. The act does not in
any other respect change the provisional govern
ment, nor doe. the act authorize the military au
thority to change it. The power of further chang
lng it is reserved, not granted, and it is reserved to
Don gress, not delegated to the military commander.
Congress was not satisfied with the organic law,
or constitution, under which this civil govern
ment was established. That constitution was to be
changed in only one particular to make It accept
able to Congress, and that was In the matter of the
elective franchise. The purpose, the sole objeot of
tbi. act 1. to effect that change, and to effect It by
the agency of the people of the State, or such of
them a. are made voters, by mean, of elections
provided for in the act, and in the meantime to
preserve order and to punish offenders, If found
necessary, by military commissions.
We are, therefore, not at a loss to know what
power, were possessed by the existing civil au
thority. The only question 1. upon the powers
conferred on the military authority. Whatever
power is not given to the military, remain, with
the civil government.
We see, first of all, that each of these States 1.
made subject to the military authority of the
United States" not to the military authority alto-
ether, but with this express limitation, "as here
a after prescribed."
We must, then, examine what Is thereinafter pro
Tided, to Hud the extent and nature of the power
granted.
This, then, 1. what Is granted to the military
commander: the power or duty "to protect all per
son, in their right, of person and property, to sap
press insurrection, disorder, and violence, and to
punish, or cause to be punished, all disturber, of
the publio peace and criminals," and he may do
this by the agency of the criminal courts of the
State, or, If necessary, he may have resort to mili
tary tribunals.
This comprises all the powers given to the mili
tary commander.
Here is a general clause making it the duty of the
military commander to give protection to all per
son, in their right, of person and property. Con
eldered by Itself, and without reference to the con
text and to other provision, of the act, it Is liable,
from its generality, to be misunderstood.
What sort of protection is here meant! What
Violations of the rights of persons, or ot property,
are here intended ! In what manner Is this pro
tection to bs given! These questions arise at once
It appear, that some of the military commander.
have understood this grant of power a. all-corn-prehenBlve,
conferring on them the power to re
move the executive and jndiolal officer, of the
State, and to appoint other officer. In their places,
to suspend the legislative power of ths State, to
take under their control, by officer, appointed by
themselves, the collection and disbursement of the
revenue, of the State, to prohibit the execution of
the raw. of the State by the agency of its ap-
Tolnted officers and agents, to change the existing
awe in matter, affecting purely civil and private
rights, to suspend or enjoin the execution of ths
judgment, and decrees of the established State
courts, u interfere In the ordinary administration
ol Justus in the State courts, by prescribing new
qualifications for jurors, and to change, upon the
ground of expediency, the existing relations of the
parties to contracts, giving protection to one party
fiy violating the rights of the other party.
I feel conffdent that these military officers, in all
they have done, have supposed that they had full
warrant for their action. Their education and
training have not been of the kind to fit them for
the delicate and difficult task of giving construc
tion to such a statute as that now under considera
tion. 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 be no doubt as to th. rule of construe
tlon according to which we must Interpret this
grant of power. It la a grant of power to military
authority over civil right, and citizen, in time of
peace, ft 1. a new jurisdiction, never granted be
Jure, by which, la certain particulars tuid. lor cej.
tain purposes, the established principle that the
military snail re subordinate to trie civil aotnority
Is reversed. The role ot construction to be ap
plied to such a grant ot power is thus stated in
lwarrls on Statutes," pnge fl.r'2: "A statute creat
ing a new jurisdiction ought to be construed
strictly."
Ouided by this rule, and in tne Hunt or otner
rules of construction familiar to every lawyer,
especially of those which teach na that In giving
construction to single clause, 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 witn tne otner part, of the
statute, so a. to avoid repugnancy. I proceed to
the construction ot this part of the act.
To consider, then, In the first place, the term, of
the grant. It Is of a power to protect all persons
In 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 law.
under which these ppople live. It is a power to
J 'reserve, not to abrogate; to sustain the existing
rame of social order and civil rule, and not a
power to Introduce military rule In its place. In
enect, it is a ponce power, ana tbe protection nere
Intended Is protection of persons and property
against violence, unlawful force, and criminal In
fraction. It is given to meet the contingency re
cited in the preamble, of a want of adequate pro
tection for life and property;" and the necessity
also recited, "that peace and Kood order should be
enforced."
This construction Is made more apparent when
we look at the Immediate context, and see in what
mode, and by what agency, this protection 1. to be
secured, lhls duty, or power of protection, is to
i e performed by the suppression of Insurrection,
( lsorder, and violence, and by the punishment,
i liber by the agency of the State courts, or by mili
ary commissioners, when necessary, of all dis
urbers of the public peace and criminals; and it I.
eclared that all Interference, under color of State
authority, with tbe exercise of thl. military au
thority, shall be null and void.
The next snoceedlng clause provides for a speedy
trial of tbe offender, forbids the infliction of cruel
end unusual punishment, and requires that sen
tences of these military courts, which involve the
liberty or life of the accused, shall have the ap
proval of the commanding general, and. as to a
sentence of death, the approval of the President,
before execution.
All these special provision, have reference to
tbe preservation of order and protection against
violence and crime. They touch no other depart
ment or function of the civil administration, save
only its criminal jurisdiction, and even as to that
the clear meaning of this act Is that It 1. not to be
Interfered with by the military authority, unless
when a necessity for such interference may hap
pen to arise.
I see no authority, nor any shadow of authority,
for Interference with any other court, or any other
jurisdiction than criminal courts In the exercise
ot criminal jurisdiction. The existing civil au
thority in all its other departments, legislative,
executive and judicial, Is left untouched. There
Is no provision, even under the plea of necessity,
to establish, by military authority, courts or tri
bunals for the trial ot civil cases, or for the pro
tection of such civil rights of person or property
as come within the cognizance of civil courts a.
contradistinguished from criminal courts. In
point of fact there was no foundation for such a
frant of power, for the Civil Rights act and the
'reed man's Bureau act, neither of which is su
perseded by this act, made am?! provision for
tne protection oi an merely civil rights where toe
laws or courts of these States might fail to give
full, impartial protection.
I find no authority anywhere in this act for the
removal by the military commander of the proper
officer, of a State, either executive or judicial, or
the appointment of persons to their places. No
thing short of an express grant ot power would
justify tbe removal or tbe appointment of such an
officer. There Is no Buch grant expressed or even
Implied. On the contrary, the aot clearly enough,
forbid. It. The regular State officials, duly elected
and qualified, are entitled to hold their offices.
They, too, have rights which the military com
mander la bound to protect, not authorized to de
stroy. We find In the concluding clause of the sixth
section of the act that these officials are recog
nized, 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 provisions of
the fifth section of this act; and no person shall be
eligible to any office under such provisional gov
ernments who would be disqualified from holding
office under tbe provisions ot this act."
This provision not only recognizes all the offi
cers of the provisional governments, but, In case
of vacancies, very clearly points out how they are
to be tilled; and that happens to be in the usual
way, by the people, and not by any other agency
or any other power, either State or Federal, civil
or military.
I find it impossible under the provisions of this
act to comprehend such an official as a Governor
of one of these States appointed to office by one of
these military commanders. Certainly he is not
the Governor recognized by the laws of the State,
elected by the people of the State, and clothed as
such with the chief executive power. Nor Is he
appointed as a military Governor for a State which
has no lawful Governor, under the pressure of an
existing necessity, to exercise powers at large. The
Intention, no doubt, was to appoint him to fill a
vacancy occasioned by a military order, and to put
him in the place of the removed Governor, to ex
ecute the functions of the office as provided by
law. The law takes no cognizance of such an offi
cial, 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 ja
' dlcial officers of the State. If tbe military com
mander can oust one from his office, he can oast
them all. If he can till one vacancy he can fill all
vacancies, and thus usurp an civil jurisdiction
into bis own hands, or the hands of those who
hold their appointments from him and subject to
his power of removal, and thus frustrate the very
right secured to the people by this act. Certainly
this act is rigorous enough in the power which it
gives. With all Its severity, the right of electing
their own officer, is still left with the people, and
it must be preserved.
I must not be understood as fixing limits to the
power of tbe military commander in case of an
actual insurrection or riot. It may happen that
an lnsnrrection in one of these Slates may be so
general and formidable as to require the temporary
suspension of all civil government, and the es
tablishment of martial law in Its place. And tbe
same thing may 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 is
necessary to meet such emergencies, the military
commander may properly exerciee. I conline my
self to the proper authority of the military com
mander where peace and order prevail. When
peace and order do prevail, It Is not allowable to
displace tbe civil officers and appoint others la
their places nnder any idea that the military com
mander can better perform his duties and carry
out the general purposes ot the act by the agency
ot civil officers of his own choice rather than by
tbe lawful incumbents. The act gives him no right
to resort to such agency, but does give him the
right to have "a snUicient military force" to en
able him "to perform his duties and enforce hi.
authority within the district to which he 1. as
signed." In the suppression of Insurrection and riot, the
military commander 1. wholly independent of the
civil authority. So, too, in the trial and punish
ment of criminals and offenders, be may supersede
the civil jurisdiction. Ui. power Is to be exercised
In these special emergencies, and tbe means are
put into his hands by which it Is to be exercised,
that is to say, "a sufficient military force to enable
such officer to perform hi. duties and enforce hi.
authority," and military tribunal, of his own ap
pointment to try and punish offenders. These are
strictly military powers, to be executed by military
authority, not by the civil authority or by civil
officers appointed by him to perform ordinary civil
duties.
If these emergencies do not happen, If civil or
der is preserved, and criminals are duly proseouted
by the regular criminal courts, the military power
though present must remain passive. Its proper
function is to preserve the peace, to act promptly
when the peace is broken, and restore order. When
that Is done and tbe civil authority may again
safely resume its funotlons, the military power be
comes again passive, but on guard and watchful.
This, in my judgment, is the whole scope ol the
military power conferred by this aot, and in arriv
ing at tills construction of the aot, I have not found
it necessary to resort to the strict construction
Which i. 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 military
commander Is made a conservator of the peace, not
a legislator. His duties are military duties, execu
tive duties, not legislative duties. lie has no au
thority to enact or declare a new code of law. for
the people within his district under any idea that
he can make a belter code than the people have
made for themselves. The publio policy is not
committed to his discretion. The Congsess which
passed this act undertook in certain grave particu
lars to change these laws, and these changes being
made the Congress saw no further necessity or
change, but were content to leave all the other
laws in full force, but subject to this emphatio de.
deration, that aa to these laws and such future
changes . might b expedient, the question of ex.
pedlency and the power to alter, amend or abolish,
was reserved for "the paramount authority of th
United States at any time to abolish, modify, con
trol or supersede the same." Where, then, does a
military commander find his authority to "abolish,
modify, control, or supersede' any one of these
law.1
Tbe enumeration of the extraordinary powers
exercised by the military ooromandeu in some of
tbe districts would extend this opinion to an un
reasonable length. A few Instances mnst suffice.
In one of these district, the Governor ot a State
ha. been deposed under a threat or military force,
and another person, called a governor, has been
appointed by the military commander to fill his
place; thus presenting the strange spectacle of an
official entrusted with the chief power to execute
tbe laws of the State whose authority is not recog
nized by the laVrs be Is called upon to execute.
In the same district tbe judge of one of the crim
inal courts of tbe State has been summarily dealt
with. The act of Congress does give authority to
the military commander, In cases of necessity, to
transfer the jurisdiction of a criminal court to a
military tribunal. That being tbe specific author.
Ity over tbe criminal courts given by the act, no
other authority over them can be lawfully exer
cised by the military commander. But In this In
stance the judge has, by military order, been eieou
ed from hi. office, and a private citizen has been
appointed judge in his place, by military authori
ty, and is now in the exercise of criminal jurisdic
tion "over all crimes, misdemeanors, and offences"
committed within the territorial jurisdiction of the
court. Thl. military appointee I. certainly not au
thorized to try any one for any offence as a mem
ber of a military tribunal, and he has just as little
authority to try and punish any offender as a judge
of a criminal court of tbe State.
It happen, that this private citizen, thu. placed
on the bench, Is to sit as the sole judge In a crimi
nal court whose jurisdiction extends to cases in
volving the life of tbe aocused. If be has any ju
dicial power In any case, he ha. tbe same power to
take cognizance of capital coses, and to sentence tbe
accneed to death, and order his execution. A
strange spectacle ! where the judge and the crimi
nal may very well "chance places;" for If the crim
inal has unlawfully taken life, so, too, does the
judge. This Is the Inevitable result, for the only
tribunal, the only judges, if they can be called
judges, which a military commander can consti
tute and appoint under this aot, to inflict the death
penalty, is a military court composed of a board,
and called in tbe act a "military commission."
I see no relief for the condemned against the
sentence of this agent of the military commander.
It is not the sort of court whose sentence of death
must oe first approved by the commander and
finally by the President; for that is allowed only
Where the sentence Is pronounced by a "military
commission." Nor Is It a sentence prononnced by
the rightful conrt of the State, but by a court, and
by a judge, not clothed with authority under the
laws of tbe State, but constituted by the military
authority. As the representative of this military
authority, thl. act forbids interference "under
color ot State authority" with the exercise of hi.
functions.
In another one of these districts a military order
commands the Governor of the State to forbid the
reassembling of the Legislature, and thus suspends
tbe proper legislative power of the State. In tbe
some district an order has been issued to "relieve
the treasurer of the State from tbe duties, bonds,
books, papers, &o., appertaining to his office," aui
io pui an "assistant quartermaster of the United
States volunteers" In place of the removed treasu
rer; the duties of Which quartermaster-treasurer
w uuu a uiu 1111,1 u , . 11 vv ui una l uio ucuu
quarter, of the district "the same reports and re
turns required from tbe treasurer, and a monthly
statement of receipts and expenditures; he will pay
all warrants lor salaries which may be, or become,
due, and legitimate expenditures for the support of
the penitentiary, State, and tbe support of the pro
visions Stat government; but no scrip or war
rants for outstanding debts of other kind than those
specified will be paid without special authority
from these headquarters. lie win deposit fund, in
the same manner a. though they were those of the
United States."
In another of these districts a body ef military
edicts, issued in general and special orders regu
larly numbered, and in occasional circulars, have
been promulgated, which already begin to assume
the dimensions of a code. These military orders
modify the existing law In the remedies tor the col
lection of debts, the enforcement of judgments and
decree, tor the payment of money, staying pro
ceedings instituted, prohibiting, In certain cases,
the right to bring suit, enjoining proceedings on
execution for the term of twelve months, giving
new liens In certain cases, establishing homestead
exemptions, declaring what shall be a legal tender,
abolishing In certain oases the remedy by foreign
attachment, abolishing ball "as heretofore autho
rized" in cases ex contractu, but not in "other cases,
known as actions ex delicto," and changing, in sev
eral particulars, the existing laws as to the punish
ment of crimes, and directing that tbe crime, 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 jurisdiction thereof." One of these general
orders, being number ten of the series, contains no
less than seventeen sectionsembodylng the various
changes and modification, which have been re
cited. The question at once arises In the mind of every
lawyer, what power or 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 tbe law which
vests him with jurisdiction. The concluding para
graph of this order, No. 10, is in these words:
"Any law or ordinance heretofore in force In
North Carolina or South Carolina, Inconsistent
with the provision, of this general order, are
hereby suspended and deolared inoperative." Thus
announcing, not only a power to suspend the laws,
but to declare them gecerally inoperative, and as.
suming full powers of legislation by the military
authority.
The ground upon which these extraordinary
powers are based Is thus set forth in military or
der No. 1, issued In this district: "The civil gov
vernment in North Carolina and South Carolina,
Is provisional only, and in all respects subject to
the paramount authority of tbe United S'.ates at
any time to abolish, modify, coutrol or supersede
the same." Thus far the provisions of the act of
Congress are well recited, What follows is in
these words: "Local laws and municipal regula
tions not Inconsistent with the Constitution and
laws ot the United States, or the proclamations of
the President, or with such regulations as are or
may be prescribed In the orders of tbe command
ing general, are hereby declared to be in force, and
in conformity therewith, civil officers are hereby
authorized to continue tbe exercise of their proper
functions, and will be respected and obeyed by the
inhabitants."
This construction of his powers under the act of
Congress places the military commander on the
same footing as the Congress of the United States.
It assumes that tbe "paramount authority of the
United States at any time to abolish, modify, con
trol, or supersede," is vested in him a. fully as It
is reserved to Congress. He deems himself a
representative of that paramount authority. He
put. himself upon an equality with the law-making
power of the Union, the only paramount au
thority in our government, so far, at least, as the
enactment ot laws Is concerned. He places him
self on higher ground that the President, who Is
simply an executive officer. He assumes, directly
or Indirectly, all the authority of the State, legis
lative, executive and judicial, and In effect de
clare. "I am the State'
1 regret that I find It necessary to speak so plainly
of this assumption of authority. 1 repeat what I
have heretofore said, that I do not doubt that all
these orders have been Issued under an honest be
lief that they were necessary or expedient, and
fully warranted by the act of Congress. There
may be evils and mischiefs In tbe laws which these
people have made for themselves through their
own legislative bodies, wbich require change; but
none of these can be so intolerable as tbe evils and
mischiefs wbich muBt ensue from the sort of remedy
applied. One can plainly see what will be the lu.
evitable confusion and disorder which such dis
turbances of the whole civil policy of tbe Slate
must produce. If these military edicts are allowed
to remain even during the brief time In which this
provisional military government may be In power,
tbe seeds will be sown for such a future harvest of
litigation as has never been Inflicted upon any
Other people.
There is, in my opinion, an executive duty to be
performed here which cannot safely ba avoided or
delayed. For notwithstanding the paramount au
thority assumed by these commanders, they are
not, even as to tbeir proper executive duties, in
any sense clothed with a paramount authority.
They are, at last, subordinate executive officers.
They are responsible to the President for the pro-
?er execution of their duties, and upon him rests
he final responsibility. They are his selected
agents. His duty is not all performed by selecting
such agents a. be deems competent ; but tbe duty
remain, with him to see to it that they execute
their duties faithfully and according to law. .
It is true that this act of Congress only refers to
tbe President In the matter of selecting and ap-
fiolnllng these commanders, and In tbe matter of
heir powers and do ties nnder the law, the act
speaks In terms directly to tbem; but this dons not
relieve them from tbeir responsibility to the Presi
dent, nor does it relieve him from the coustltu.
tlonal obligation Imposed upon him to see that all
"the laws be faithfully executed."
It can scarcely be neoessary to cite authority for
ao plain a proposition as this. Nevertheless, as
we have a recent decision completely in point. I
may as well refer to it.
Upon the motion made by the State of Missis.
slppl before the Supreme Court of the United"
Huites at its late term, tor leave to file a bill against 1
the President of the United Sta'es, to enjoin him
against execnting the very acts of Congress now
under consideration, the opinion of the Court upor
dismissing that motion, and it seems to have been
unanimous, was delivered by the Chief Justloe. I
make tbe following quota-Ion from the opinion:
"Very differentia tbe duly of the President In the
exercise of the power to see that the law are faith
fully executed, and among those laws the act.
named In the bill. By the first of these act. be IS
required to assign generals to command In the sev
eral military districts, and to detail sufficient mili
tary force to enable such officers to discharge their
duties under tbe law. By the supplementary act,
other dutle. ars Imposed on the several command
ing generals, and their duties must necessarily be
performed under tbe supervision of tbe President
as Commander-in-Chief. Tnedu'.y thus Imposed
on tbe President Is in no just sense ministerial. It
is purely executive and political."
Certain question, have been propounded from
one of these military districts touching the con
struction ot the power of the military commander
to constitute military tribunals for the trial of of
fenders, which I will next consider.
Whilst the act does not. In terms, displace tbe
regnlar criminal courts of tbe Slate, it doe. give
tbe power to tbe military commander, when in
his judgment a necessity arises, to tike the admi
nistration of the criminal law Into his own hand,
and to try and punish offender, by mean, of mili
tary commissions.
In giving construction to this power, we must
not forget the recent and authoritative exposition
given by the Supreme Court of the United State,
a. to tbe power of Congress to provide for military
tribunals for tbe trial of citizens In time of peace,
and to tbe emphatic declaration as to which there
was no dissent or difference of opinion among the
judges, that such a power Is not warranted by tbe
Constitution. A single extract from tbe opinion ot
the minority, as delivered by the Chief .Tustice,wlll
suffice. "We by no means assert that Congress can
establish and adply tbe laws of war where no war
hos been declared or exists. Where peace exists,
the law of peace must prevail. What we do main
tain Is, that when the nation!. Involved In war,
and some portions of tbe country are invaded, and
all are exposed to Invasion, It Is within the power
of Congress to determine in what States or district,
such great and Imminent publio danger exists as
justifies the authorization of military tribunals for
tbe trial of orimes and offences against the disci
pline or security of the army or against the publio
safety."
Limiting myself here simply to the construction
of this act of Congress, and to the question In
what way It should be executed, I have no hesita
tion In saying that nothing short ct an absolute or
controlling necessity would give any color of au
thority for arraigning a citizen before a military
commission. A person charged with crime In any
of these military district, ha. right, to be protect
ed, right, tbe most sacred and inviolable, and
among these the right of trial by jury according
to law. of the land. When a citizen is arraigned
before a military commission on a criminal charge
he is no longer under the protection ot law, nor
surrounded with those safeguards which are pro
vided in the Constitution.
Tbi. act, passed in time of peace, when all the
courts, State and Federal, are in the undisturbed
exercise of their jurisdiction, authorizes, at the
diicretlon of a military officer, the seizure, trial
and condemnation 01 the citizen. The accused
may be sentenced to death, nd. tbe sentence may
be executed, without an indictment, C,tnVitcgun
sel, without a jury, and without a judge. A sen
tence which forfeits all tbe property of the accused,
requires no approval. If It attests the liberty of
the accused it require, the approval of tbe com
manding general, and if It effect, his life It re
quire, the approval of the general and of the Pre
sident. Military and executive authority rule
throughout, in the trial, the sentence and tbe exe
cution. No habeas corpus from any State court can
be Invoked; lor tbi. law declares that "all Inter
ference, under color ot State aniuority, Xrlth the
exercise of military authority nnder thl. act, shall
be null and void."
I repeat it, that nothing short of an absolute ne
cessity can give any color of authority to a mili
tary commander to call Into exerciee such a power.
It Is a power tbe exercise of which may involve
him, and every one concerned, In the gravest re
sponsibilities. The occasion for Its exercise shonld
be reported at once to the Executive for such in
structions as may be deemed necessary and pro
per. Questions have arisen whether, nnder this
power, these military commissioners can take
cognizance of offences committed before the pas
sage of tbe act, and whether they can try and pun
ish for acts not made crimes or offences by Federal
or State law.
I am clearly of opinion that they have no juris
diction as to either. They can take cognizance of
no offence that bs. not happened after the law
took eilect. 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
wonld take the character of an ex pott facto law.
Therefore, in the absence of any language which
gives the act a retrospect, I do not hesitate to say
it cannot apply to past offences.
There is no legislative power given under this
military bill to establish a new criminal code. The
authority given is to try and punish criminals and
offenders, and this proceeds upon the idea that
crimes and offence, have been committed; but no
person can be called a criminal or an offender for
doing an act which, when done, was not pro
hibited by law.
But as to the meaanre of punishment, I regret to
be obliged to say that It Is left altogether to the
military authorities, with only this limitation, that
the punishment to be inflicted shall not be cruel or
unusual. The military comlssiou may try the ao
cused, tlx the measure of punishment, even to the
penalty of death, and direct the execution of the
sentence. It Is only when the sentence affects the
"life or liberty" of the person that It need be ap
proved by tbe commanding general, and only in
cases where It effects tbe lite of tbe accused that it
needs also tbe approval of the President.
As to crimes or offences against the laws of the
United States, tbe military authority can take no
cognizance of them, nor In any way interfere with
the regular administration of justice by the appro
priate Federal courts.
In tbe opinion heretofore given upon other ques
tions arising nnder these laws, I gave at large for
your consideration the grounds upon which my
conclusion, were arrived at, Intending thereafter
to state these conclusions in a concise and clear
summary. I now proceed to execute that pur
pose, which is made especially necessary from the
contusion and doubts which, have arisen upon
that opinion in tbe publio mind, caused In part by
the errors of the telegraph and ttie press In Its pub
lication, and In part by the inaptitude of the gene
ral reader to follow carefully the successive and
dependent steps of a protracted legal opinion.
Summary.
WHO ABB BMT1TLBD TO BEOISTB ATI0K.
1. The oath prescribed In the supplemental act
detlnes all the qualifications required, and every
person who can luke that outh is entitled to have
Lis name entered upon the list of voters. -
2. The board of registration have no authority to
administer any other oath to the person applying
for registration than this prescribed oath; nor to
administer any oath to any other person, touching
the qualifications of the applicant, or tne. falsity of
the oath so taken by him. Tbe act to guard against
falsity In the oath provides that, If false, the per
son taking It shall be tried and punished for
perjury.
ISO provision Is made for challenging the quali
fications of tbe applicant, or entering upon any
trial or investigation of his qualifications, either
by witnesses or any other form of proof.
3 As to citizenship and residence.
The applicant for registration must be a citizen
of the State and ot the United States, and must be
a resident of acounty included in the election dis
trict. He msy bo registered if be has been such
citizen for a period less than twelve months at tbe
time be applies for registration, but he cannot vote
at any election unless his citizenship has then ex
tended to the full term of one year. A. to such a
person the exact length of his citizenship should
be noted opposite his name on the list, so tbut it
may appear on tbe day of election, upon reference
to the list, whether the full term has then been ac
compllbhed. 4. An unnaturalized person cannot take this
oath, but an alien who has been naturalized can
take It, and no other proof ot naturalization can
be required from him.
6. No one who is not twenty-one year, of age at
tbe time of registration can take the oath, for he
must swear that be has then attained that age.
6. No one who has been disfranchised for partici
pation in any rebellion against the United States,
or for felony committed against tbe laws of any
State or of the United States, can safely take thl.
oath.
The actual participation in a rebellion, or the
actual commission of a felony, doe. not amount to
disfranchisement. The sort of disfranchisement
here meant is that which Is declared by law passed
by competent authority, or which has been fixed
upon tbe criminal by the sentence of the court
which tried him for the crime.
No law of the United States ha. deolared the
penalty of disfranchisement for participation in
rebellion alone. Nor Is it known that any such
law exists in either of these ten States, except per
hup. Virginia, a. to which State special in
structions will be given.
7. A. to disfranchisement arising from having
held office followed by participation In rebellion.
This Is the most important part of ths oath, and
requires strict attention to arrive at It. meaning. I
deem It proper to give the exact words. The appli
cant roust swear or a III no as follows r
"That 1 have never been a member of any State
Legislature, nor held any executive or judicial
office In any State, and afterward engaged in an
Insurrection or rebellion aratnst tbe United Sta'es,
or given aid or comfort to the enemies thereof; that
I have never taken an oath as a member of Con-
tress of tbe United States, or a. an officer of tbe
inlted States, or as a member of any state legis
lature, or ss an executive or judicial officer of any
81alg. to support (be Constitution of the United
State., and afterward engaged In Insurrection or
rebellion agnlnst the United State., or given aid or
ccmfort'lo the enemies thereof."
Two elrtSfi's must concur In order to disqualify
a person unflir these clauses: First, the office and
official oath ui: support the Constitution of the
iTnimri vcond. engaging afterwards In
rebellion. Both iriTS' to work disqualifica
tion, and must bappenrfi tn order of time meu-
tinnpit
A person who has held an-tfcQJc and taken the
oath to support tbe Federal Convention and ha.
not afterwards engaged In rebellioCnotdisquall-
fieri. Kn. Inn. ft roriinn hn hu AflffHir)U.iO rebel
lion, but has not theretofore held anoVUisau(i,
taken that oath, is not disqualified.
8. Officers of the United State..
As to these the language Is without limitation.
The person who has at any time prior to the rebel
lion beld any office, civil or military, under the
United States, and ba. taken an official oath to
support the Constitution of the United States, Is
subject to disqualification.
9. Military officers of any State, prior to the re
bellion, are not subject to disqualification.
- 10. Municipal officers, that 1. to .ay, officer, of
Incorporated cities, town, and villages, such as
mayors, aldermen, town counoll, police, and other
clto or town officers, are not subject to disqualifi
cation. 11. Person, who have, prior to tbe rebellion,
been member, of tbe Con gress of the United States,
or members of a State Legislature, are subject to
disqualification. But those who have been mem
bers of conventions framing or amending the con
stitution of a State, prior to the rebellion, are not
subject to disqualification.
1-2. All the executive or judicial officer, of any
State who took an oath to support the Constitu
tion of the United States are subject to disqualifi
cation, and in these I Include county officers, as to
whom I made a reservation in the opinion hereto
fore given. After fnll consideration, I have ar
rived at the conclusion that they are subject to
disqualification, if tbey were required to take as a
part of their official oath, the oath to support the
Constitution ot the United States.
13. Person, who exercised mere agencies or em
ployment, under State authority are not disquali
fied; such as commissioners to lay out roads, com
missioners of public works, visitor, of State Insti
tutions, directors of State banks or other State in
stitutions, examiner, of banks, notaries public,
commissioner, to take acknowledgment, of deed,
and lawyer.
BNOAoma iv rbublliow.
Having specified what offices held by any one
prior to the rebellion come within the meaning of
the law, It 1. necessary next to set forth what sub
sequent conduct fixes upon such person tbe offence
of engaging In rebellion. I repeat that two things
must exist as to any person to disqualify him from
voting: first, the office held prior to the rebollion,
and afterwards, participation in tbe rebellion.
14. An act to fix upon a person the offence of en
gaging in rebellion nnder thl. law must be an
overt and vo."::"" ch twno wiia, ice, intent of
aiding or furthering the common unlawful pur
pose. A person forced Into the rebel service by
conscription, or under a paramount authority
which he could not safely disobey, and who would
not have entered snch service if left to the free
exercise of hi. own will, cannot be held, to be dis
qualified from voting.
is. Mere acts ot charity, where the Intent is to
relieve the want, of the object ol such charity,
and sot done in aid ot tbe cause In which he may
have been en gaged, do not disqualify. But organ
ized contribution, of food and clothing for tbe
general relief of persona engaged in the rebellion,
and not of a merely sanitary character, but con
tributed to enable them to perform their unlawful
object, may be classed with acts which do dis
qualify. Forced contributions to tbe rebel canse, in the
form of taxes or military assessments, which a per
son may be compelled to pay or contribute, do not
disqualify. But voluntary contribution, to tbe
rebel cause, even such indirect contribution, as
arise from the voluntary loan of money to rebel
authorities, or purchase of bonds or securities cre
ated to afford tbe means of carrying on the rebel
lion, will work disqualification.
16. All those who, In legislative or other official
capacity, were engaged in the furtherance of the
common unlawful purpose, where the duties of the
ofllce necessarily hud relation to the support ot the
rebellion, such as member, of the rebel conven
tions, congresses and legislatures, diplomatic
agents of tbe rebel confederacy, and other officials
whose offices were created for the purpose of more
effectually carrying on hostilities, or whose duties
appertained to the supportof the rebel cause, must
be held to be disqualified.
But officers who, during the rebellion, discharged
official duties not incident to war, but only such
duties as belong even to a state of peace, and were
necessary to tbe preservation of order and the ad
ministration of law, are not to be considered as
thereby engaging in rebellion, or a. disqualified.
Disloyal sentiments, opinions, or sympathies
would not disqualify, but where a person has, by
speech or by writing, incited others to engage In
rebellion, he must come under the disqualification.
17. The duties of tbe board appointed to superin
tend the elections.
This board, having the custody of the list of
registered voters in the district for which it is con
stituted, must see that the name of the person offer
ing to vote is found upon the registration list, and
if such proves to be the fact, it Is tbe duty of the
board to receive bis vote. They cannot receive the
vote of any person whose name is not upon the
list, though he may be ready to take tbe registra
tion oath, and although he may satisfy them that
tie was unable to have bis name registered at the
proper time, in consequence of absence, sickness,
or other cause.
Tbe board cannot enter Into any inquiry as to
the qualifications of any person whose name is not
on the list, or as to tbe qualifications of any per
son whose name is on the list.
18. Tbe mode of voting is provided In the act to be
by ballot. The board will keep a record and Doll-
book of the election, showing the votes, list of
voters, and the persons elected by a plurality of
tbe votes cast at the election, and make returns of
these to tne commanding general of the district.
ill. The board appointed for registration and for
superintending the elections, must take the oath
prescribed by the act of Congress, approved Jutv
2, leea, entitled, "An act to prescribe an oath of
cmce."
I have the honor to be, with great respect,
Hbnut STANiiKitar,
Attorney General
ICE COMPANIES.
CE! ICE! ICE! ICE!
IM'OIirOIlATED 1861.
COLD SPHINCr
ICE AND COAL COMPANY,
DEALERS IN AND
Shippers of Eastern Ice ana Coal,
THOMAS E, CAIIIEE, PBESIDENT.
JOHN CiOODYEAB, NECBETAHT,
II KM It K TIIOMAN.MErEBINTEXDENT,
Having now completed our arrangement, for a full
supply or Ice, we are prepared lo enter Into contracts
with targe or small customers lor a pure article, with
guarantee of being supplied promptly tor tbe season
Wagons run dally lu all paved limits of tbe consoll
dattd city. West Philadelphia, Mantua, Tioga, Frank
lord, Brldesburg, Richmond, and Uerinautowu. A
trial is asked, bend your order, to the Office,
No. 435 WALNUT Street.
DEPOTS:
s. w. corsfb nrnum AN 1"'
MTBEETM, 1611BU1W4U1
KOB1II rESMslTfcVAKIA BAIIKOAD
ANI M 4MTEB HTKKET.
LOMllARV AN1 T WEHT V FIFTH BJTM.,
PIKE MTltEET WUABK, HVitVHiitt.V.
ARCH STREET. 600
600
nirn '
EXtEUion KtrBHiEnAion
If THE
BEST AND OU ECOKO.HICAI
OBIEEITH A PAGE,
u no, too ASCII HTBEXT,
SPECIAL NOTICES.
ACADEMY OF MUSI
TUB K1NP.TCFNTH
ITBRMRT AD
Q II A IS D
UUblCAL :KLKiJKATIOrt
TABERNACLE BApTist" CtlUHCU BUNDA
, H.'HOOL,
wnx takk it.ack
On THURSDAY KVKKIKU. June 20th, lSfi-S
A prugrsmme be. been arranged combining t
Killiiwiitv fpkhi rAf, s
'1 ho entire school will occupy the platform, And to
render Hie following pieces:
tlioru....... "The Children's JubMe'
Chorus -..."iiicMcl Blbl
( bant .,. Antlphon
Utiurtelteaud Cliorus...M..M"lleauiilull,ncl of Hps
Chorus "Polar Bt
Chorus ......."Work, for tueNlijht Is Coming
l iiorus.... ive m nom
Churns "llevonri tha HmllliiK and the Weepin
Chant... . "Uloria in ICxoelsi
Mrs. FcniMTF and Wlss lU.ACKBTjItNE hfJ
coiisenteu to sidk the following pieces :
. .uu a Backbu ,
jjueii i ne Alpine MorninR,"
Miss u. lilaukburne and Mrs. Rrhlnj
roio "lArilill Wali7, Mitts W. Hlackbn
fTffr'JJtf i"""" oi me JMKhtiugHles"..Mrs. ucnu
"Guide me. U Thou 1 1n ? T'T'H'S "'l "' W lkifrTi i'
" I n i.hyt, nun' whm ...... .... ......r u .
t. . r, y,"'ev noirof 1 HOvrnscle Chu
iiy the Chulr of luberuaclo Churl
Th Tlrrvirt nf tha Hh mill v ,
ineKevs. M. u. CI. A UK K, or Chicago' W.
BKANTIA. V. D ot Ueorula; and K.C. 1UJDY. V
of lluetou (formerly Pastors of the Church), will
pretmu and participate in the exerclies.
'1 he Choruses will he sustained by the entire Bch
accompanied by the celebrated "
"IS AT T KHLKK BAN D,"
1 heodore Herruian, Leader.
JOHN M. EVANS .TZ..... Condurj
tickets. M cents, admitting to Paiquet, Panr
l!S.lc,,nyi mHy Circle, 25 co..t; mi)
proem ed at IrumpU-r's, Keveiub. andCh. snutstrev
jqgf REPUBLICAN STATE CONVEUTItf
lUnarsBrno, April l. 187. The "Republlf
Btate Convention" will niert at. the "Herdlo iioi
in WiUU.msport.on WKUKKaDAY.tlTeKth S25
, , . ... . w nuuiinaie a ca
date lor Judge of the Supreme Court, and to inn
, v " j ."biiiiik nun, canvass.
As heretolore, tbe Convention will be couiuose
jMjyrtf.emKiive ana senatorial Delegates, chosen
the usual way, and equal lu number to liie whol
V - y..v.- WViJlDDUUWlUVWI Ul US (Jell
Asxembly.
By order of the Btate Central rnmmtiiu
no, w tt 'WUM.N.chalrmr.
J. Rohi.by'iu'nomhox, 'Secretaries. S2Q
rXJT TUB TJNDEB8IGNED CITIZENS 1
. luf"L lnBt contributions In aid of the
rerere aud Families or the deceased by the
PAlftm t.v nn Hnninm tlmal K . . . . .
the city. MOKTON McMICliAKL, to bedlHtrlDiJ
by tlie tollowlUK CoiumUiee anoolniPd hv him-
vt . r r.i.ii.
J. KlXJA
JOHN F
I JOHN O
ITT EE.
WW. MOK1.ITEAD,
D. 11. CUHMINB.
FARNUM,'
... . COMM
JAUJttd.
vvra. i. Misxey,
Biimuel Jeani s,
Charles Kvans, Quarry St.,
V. I, BlaHchurd,
Edward Paish,
B. Morris Walu.
Matthew Balrd.
Kdward Williams,
Hnmuel E. Btokcs,
Wm. P. Jenks,
Wm. H. King, Ransom St.
Joseph T. Thomas,
w rn . mii i n m
Joshua JLIpplncott, Si
Wm II Thntno.
Joseph B.Meyers,
Aian ooa,
Jnhn TTiin.wnrffi
ttn it Wortrf IJ i.l .... n VTA.
Hugh Mcilvaln, ill
win. j, iiorstuiann.
KSIT STOCKHOLDERS' MEETING. T
v FAKMiKb' AD MKCHAJUW HATIOiN,
iSArsh..
Philadei.phta, May 23, 18'
A General Meeting of tbe btockholdera of
Farmers' and Mechanics' National Bank of PI.
de.l'ti'a will beheld at the BANKING HOUBE
BATUBDAY, the 29th day of June next, at twif
o cioik, noon, ror toe purpose or taking luto const'
ation and deciding upon amendments ol the Tli
aud Filth of tbe Articles of Association of the i
Bank.
By order of the Board of Directors.
8 S8 1 JJ W. RUHHTON. J B., Cashle
OFFICE OF THE PHILADELPI
OAS WOKK8. JuwbI, 18.
Proposals will be received at this ollice, No. '.
BKVJiNTJI Btreet, until noon or the 1st day ot J
ror me saie ro tne umstees or tne miiaaeinnia
Works or the Block iu the tiermantown, Ktchmi
Aianynnk, ana bouthwailc and MoyainensinK
Companies, lobe used as Investments for the BE
U K una oi Buiu companies.
4 liu BEN J AM IN S. RILEY, CashiJ
Kk5T GEORGE W. FORD. DOCK STRE
m one door below Third, collects Bounty, l
oivii, nnwuu muu, nuu tui claims againBt the C
erumeut. For a sneedv aottiHnipnr.. nni i
Fultl), who Is well versed with all the details of
business. 6 121
rjZr BATCHELOK'S HAIR DYE. Tl
splendid Hair Dye Is the best in tbe wj
The enly true and perfect Vye Harmless, Reliable!
stantaneous. No disappointment. No ridiculous tt
."o1 vm. j, w w ij , xwiiieuieti me ill enec
jsim jjyt: invigorates the hair, leaving It soft
beautiful. The genuine Is signed WILLIAM
BATCUKLOK. All others are mere Imitations,
should be avoided. Bold by all Druggists and
funiers. Factory, No. 61 BARCLAY btreet. j
York 4 5fmv
INSTRUCTION.
JHE GREAT NATIONAL TELEGRAPHIC.
COMMERCIAL INSTITUTE,
TSO. 710 ARCH STREET, PHILADELPHIA, pj
The most thorough and complete BUSINESS (
u.uu i M ini; cn i. under the mamojemei
thoroughly competent and experienced lustructo
now oilers the best facilities lor obtaining a
PRACTICAL BUSlNKtJd EDUCATION.
Ttally Instruction given In Peurnnnstilp, Mi
mallcs. Book-keeping, and Telegraphing,
ACTUAL BUSINESS
Is conducted upon an entirely new system, an)
wuii-u i uimut Gurutuiauu uy lUAiui uuvuiueruu
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which etUctuully prevents a waste of time and
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BUCCEBS!! Sl CCEbBlt SUCCESS !! I
We bave now In actual attendance nearly Ct
HUNDRED STUDENTS, who will tentlfy to thetf
pleleness of our course, and at tbe same time rtt
sent the connuence piacea in us oy tne puuuu uiii
tne iiiNt three months, buccess is no longer uouui;
MEHCIIANTS, AND JiUliNEK JMr-.N in keii
Will tlnd It to tbeir advamaKe to call uoon ub for r.l
and reliable Clerks Hud Book-keeper.! we mttk.
misrepresentations. Tbe TKLKUHA PHIU DEPA,
WENT is nnder the control or Mr. Park Bprlug,
as a most complete and thorough operator, Is unci
fledly endorsed by the entire corps of mauauers
Western Union Telenranblc line at the main olli.l
thiscltv. Bee circulars now out. Twenty-three iut
menu constantly In operation. The beat Teaif
alwuvs In attendance. The LADIES DEI A!
MEJN'T Is the finest In the country; over twenty
failles are now in attenuance.
CONFIDENCE We will refund the entire c
ft laililftn u. ua.v nnnll fthil niRV hA (liHHaLlHllef)
our Instruction alter he has given two weeks' fail
labor in eitr er uopuruneiik
TERMS.
Commercial Course to Telegraphic Course..,
JACOli H. TAYLOR, Presid,
PARKER SPRINu, Vice-President. 2 11 mwi
BUSINESS COLLEG
. E. COBNEIl FIFTH AKO ClIEMMBTf '
Established Not. t, I8SJ. Chartered March u,
BOOK-HEKPIN. - K
Course of Instruction unequalled, consisting of I
. i . i ... . , i .. , ,...uu In lft.fi inn I .... .
this aud other ciiles, hluinrated lu Falrb;j
Book-keeping, which is the text-book of this lis:
UUIl,
OTHEB BRANCHES.
TVWranhlnv. Camnierclal Calcnlattons. Ttn.J
and Ornamental Writing, the Hiyber Mai hem J
Corieatouueuce, xorjB.ouiuiercialUaw, et-
YOUJiU MEN
Invited to visit the Institution and Judge or t
selves ol Its superior aonolutQienLM I 'lnuiinru .,
Plication FAiRRAN KS, A. M., i'rebldv
HARDWARE, CUTLERTcl
O TJ T L EH
A fine assortment of POCK n
TABLE l UTLKHV, RAZoios'
PAJEit AND TAILORS' bKAitH. KTV Rt "i
I V. UK I. MOLD'b I
Cheap Bloro.No. iw bouth ten i h iirKe,!
11 g iiirv ukKiia above wMj