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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 jurisdiction 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 degree 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 retrospect, I do not hesitate to say it cannot apply to past offences.

There is no legislative power given under this military bill to estab- lish 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 accused, 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 approved by the com- manding 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 in- terfere with the regular administration of justice by the appropriate federal courts.

In the opinion heretofore given upon other questions arising under these laws, I gave at large for your consideration the grounds upon which my conclusions were arrived at, intending thereafter to state these conclusions in a concise and clear summary. 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 pub- lic 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 l< •. al opinion.

SUMMARY.

WHO aim: ENTITLED TO REGISTRATION.

1. The oath prescribed in the supplemental act defines all the qualifications required, and every person who can take that oath is entitled to have his name entered upon the list of voters.