664 



PUBLIC DOCUMENTS. 



to invasion, it is within the power of Congress to 

 determine in what States or districts such great and 

 imminent public danger exists as justifies the author- 

 ization of military tribunals for the trial of crimes 

 and offences against the discipline or security of the 

 Army or against the public safety.'' 



Limiting myself here simply to the construction of 

 this act of Congress, and to the question in what 

 way it should be executed, I have no hesitation in 

 saying that nothing short of an absolute or control- 

 ling necessity would give any color of authority for 

 arraigning a citizen before a military commission. A 

 person charged with crime in any of these military 

 districts has rights to be protected, rights the most 

 sacred and inviolable, and among these the right of 

 trial by jury according to the laws of the land. When 

 a citizen is arraigned before a military commission 

 on a criminal charge, he is no longer under the pro- 

 tection of law, nor surrounded with those safeguards 

 which are provided in the Constitution . 



This act, passed in a time of peace, when all the 

 courts, State and Federal, are in the undisturbed 

 exercise of their jurisdiction, authorizes, at the dis- 

 cretion of a military officer, the seizure, trial, and 

 condemnation of the citizen. The accused may be 

 sentenced to death, and the sentence may be exe- 

 cuted, without an indictment, without counsel, 

 without a jury, and without a judge. A sentence 

 which forfeits all the property of the accused re- 

 quires no approval. If it affects the liberty of the 

 accused, it requires the approval of the command- 

 ing general ; and if it affects his life, it requires the 

 approval of the general and of the President. Mili- 

 tary and executive authority rule throughout in the 

 trial, the sentence, and the execution. No 7i,abeas 

 corpus from any State court can be invoked ; for this 

 law declares that all interference, under color of 

 State authority, with the exercise of military au- 

 thority under this act, shall be null and void." 



I repeat it, that nothing short of an absolute neces- 

 sity can give anv color of authority to a military 

 commander to call into exercise such a power. It is 

 a power the exercise of which may involve him and 

 every one concerned in the gravest responsibilities. 

 The occasion for its exercise should be reported at 

 once to the Executive for such instructions as may 

 be deemed necessary and proper. 



Questions have arisen whether, under this power, 

 these military commissioners can take cognizance of 

 offences committed before the passage of the act, 

 and whether they can try and punish for acts not 

 made crimes or offences by Federal or State law. 

 _ I am clearly of opinion that they have no jurisdic- 

 tion as to either. They can take cognizance of no 

 offence that has not happened after the law took 

 effect. Inasmuch as the tribunal to punish, and the 

 measure or decree of punishment, are established 

 by this act, we must construe it to be prospective 

 and not retroactive. . Otherwise it would take the 

 character of an ex post facto law. Therefore, in the 

 absence of any language which gives the act a re- 

 trospect, I do not hesitate to say it cannot apply to 

 past offences. 



There is no legislative power given under this 

 military bill to establish a new criminal code. The 

 authority given is to try and punish criminals and 

 offenders, and this proceeds upon the idea that 

 crimes and offences have been committed ; but no 

 person can be called a criminal or an offender for 

 doing an act which when done was not prohibited by 

 law. 



But as to the measure of punishment, I regret to 

 be obliged to say that it is left altogether to the 

 military authorities, with only this limitation, that 

 the punishment to be inflicted shall not be cruel or 

 unusual. The military commission may try the ac- 

 cused, fix the measure of punishment, even to the 

 penalty of death, and direct the execution of the 

 sentence. It is only when the sentence affects the 

 "life or liberty" of the person that it need be ap- 



proved by the commanding general, and only in 

 cases where it affects the life of the accused that it 

 needs also the approval of the President. 



As to crimes or offences against the laws of the 

 United States, the military authority can take no 

 cognizance of them, nor in any way interfere with 

 the regular administration of justice by the appro- 

 priate Federal courts. 



_ In the opinion heretofore given upon other ques- 

 tions arising under these laws, I gave at large for 

 your consideration the grounds upon which my con- 

 clusions were arrived at, intending thereafter to 

 state these conclusions in a concise and clear sum- 

 mary. I now proceed to execute that purpose, which 

 is made especially necessary from the confusion and 

 doubts which have arisen upon that opinion in the 

 public mind, caused in part by the errors of the 

 telegraph and the press in its publication, and in 

 part by the inaptitude of the general reader to follow 

 carefully the successive and dependent steps of a 

 protracted legal opinion. 



WHO ARE ENTITLED TO REGISTRATION. 



1. The oath prescribed in the supplemental act 

 defines all the qualifications required, and every per- 

 son who can take that oath is entitled to have his 

 name entered upon the list of voters. 



2. The board of registration have no authority to 

 administer any other oath to the person applying for 

 registration than this prescribed oath ; nor to ad- 

 minister any oath to any other person, touching the 

 qualifications of the applicant, or the falsity of the 

 oath so taken by him. The act to guard against 

 falsity in the oath, provides that, if false, the person 

 taking it shall be tried and punished for perjury. 



No provision is made for challenging the quali- 

 fications of the applicant, or entering upon any trial 

 or investigation of his qualifications, either by wit- 

 nesses or any other form of proof. 



3. As to citizenship and residence. 



The applicant for registration must be a citizen of 

 the State and of the United States, and must be a 

 resident of a county included in the election district. 

 He may be registered if he has been such citizen for 

 a period less than twelve months at the time he ap- 

 plies for registration, but he cannot vote at any elec- 

 tion unless his citizenship has then extended to the 

 full term of one year. As to such a person the exact 

 length of his citizenship should be noted opposite 

 his name on the list, so that it may appear on the 

 day of election, upon reference to the list, whether 

 the full term has then been accomplished. 



4. An unnaturalized person cannot take this oath, 

 but an alien who has been naturalized can take it, 

 and no other proof of naturalization can be required 

 from him. 



5. No one who is not twenty-one years of age at 

 the time of registration can take the oath, for he 

 must swear that he has then attained that age. 



6. No one who has beeu disfranchised for partici- 

 pation in any rebellion against the United States, or 

 for felony committed against the laws of any State 

 or of the United States, can safely take this oath. 



The actual participation in a rebellion or the actual 

 commission of a felony, does not amount to disfran- 

 chisement. The sort of disfranchisement here meant 

 is that which is declared by law passed by competent 

 authority, or which has been fixed upon the criminal 

 by the sentence of the court which tried him for the 

 crime. 



No law of the United Staes has declared the 



Eenalty of disfranchisement for participation in re- 

 ellion alone. Nor is it known that any such law 

 exists in either of these ten States, except perhaps 

 Virginia, as to which State special instructions will 

 be given. 



"7. As to disfranchisement arising from having held 

 office, followed by participation in rebellion. 



This is the most important part of the oath, and 

 requires strict attention to arrive at its meaning. I 



