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Weaver's Case.—We give in full the opinion of the Attorney General in this case, taken from the Law Times Departments Reports for 1869, p. 83. It sustains the legality of the Reconstruction Acts on what we have long been persuaded is the only consistent hypothesis; whether it is a correct hypothesis is another and a very different thing. On that we give no opinion, but only present this opinion it as an intelligible and intelligent argument in support of one side of a grave constitutional question on which there has been talked no end of nonsense.

Sib, — Your letter of March 24, 1869, submitting for my opinion as to the proper action to be had in the premises the case of Weaver, a citizen of Texas, who was tried before a military commission appointed by the commanding general of the Fifth Military District, under authority of sect. 3, Act of March 2, 1867, to provide for the more efficient government of the rebel States, and found guilty of murder, and sentenced to be hanged (the record having been forwarded for the action of the President, as required by sect. 4 of said Act, and returned by him to your department upon the 1st of February last without any action upon the same), was received on the 26th of March last. The grave importance of the questions involved required such careful and deliberate consideration that, under the pressure of other official duties, I have not been able until this time to give it sufficient attention. Having now carefully examined it, 1 proceed to state the conclusion to which I have arrived. From the papers accompanying your letter, it appears that Weaver, a citizen of Bastrop County, in Texas, was indicted for murder in that County. By request of J. J. Thornton, district judge of the Second District in Texas, made to General Reynolds, the commander of the Fifth Military District, accompanied by a statement that a trial could not properly be had in the State courts, and asking that he may be tried by the military authorities, a military commission was organized at Austin, Texas, before which, on the 17th of September, 1868, and the days following, Weaver was arraigned and tried. He was defended by counsel, was found guilty and sentenced to be hanged, and the question on which you desire my opinion seems to be this: Whether the general commanding the Fifth Military District had authority to take a man from the civil power and try him by military law; or, in other words, whether a military commission in Texas, in September, 1868, had jurisdiction over a citizen not in naval or military service, charged with the murder of another citizen, and under indictment and arrest in the State courts therefor. From the letter of Judge Thornton to General Reynolds, above referred to, which is made a part of the record in this case, it appears that Weaver was under indictment in the District Court for the Second Judicial District of Texas for murder, and that the civil courts were so badly situated and managed, that if left with them no trial could probably be had. Exceptions to the jurisdiction of the commission were filed by Weaver, who objected, 1st, that he was entitled to a trial by jury; 2d, that the Constitution of the United States provides that no person shall be twice put in jeopardy of life or limb for the same offence; that the offence with which he was charged belonged entirely to the civil courts of the State of Texas, and that he would be unable to plead the finding of the commission in bar in the District Court in Bastrop County; 3d, that before the date of the order convening the commission, he was under indictment in the civil court, and was under arrest to await trial therein, and that the said indictment for the same offence was still pending against him; 4th, because the District Court of Bastrop County was fully organized, and prepared to pass upon all cases brought before it; 5th, because the said Weaver was a citizen, not connected with the army of the United States, and the deceased was also a citizen. These exceptions were overruled by the commission. The statute of March 2, 1867, entitled "An act to provide for the more efficient government of the rebel States," declares in its preamble that no legal State governments adequate for the protection of life and property then existed in the rebel States therein enumerated, and included among them the State of Texas; and that it was necessary that peace and good order should be enforced in said States, until loyal and republican State governments could be legally established. It was therefore enacted that the said rebel States should be divided into military districts, and made subject to the military authority of the United States, as thereinafter presented; that it should be the duty of the President to assign to the command of each of said districts an officer of the army; to detail a sufficient military force to enable such officer to perform his duties and enforce his authority in the district to which he was assigned. The 3d and 4th sections of said Act are as follows: [The Attorney General here sets forth the 3d and 4th sections m extenso.]

As the State of Texas had not in September, 1868, and has not since adopted a constitution in conformity with the provisions of the act, and has not become entitled to representation in the Congress of the United States, the act was operative in Texas at the time the military commission was organized for the trial of Weaver, and the commanding general exercised the discretion intrusted to him by the 3d section by deciding that it was necessary for the trial of an offender to organize a military commission for that purpose. If, therefore, this statute of March 2, 1867, is a constitutional and valid statute, it then appears that the jurisdiction of the military commission was complete, and there is no legal obstacle to the execution of its sentence. It is obvious, in the first place, that under the Constitution, Congress has no right to subject any citizen of a State to trial or punishment by military power in time of peace. But the power to declare war is, by the Constitution, expressly in Congress. It has also power to suppress insurrection, and to make all laws necessary and proper for carrying into execution all the powers vested by the Constitution in the Government of the United States, or any department or office thereof. The power to declare war undoubtedly includes not only the power to commence a war, but to recognize its existence when commenced by others; to declare that there is a war, and thereupon to make provision for waging war; to determine, so far as the nation can assert and force its will, how long the war shall continue, and when peace is restored. The Constitution has made no provision in terms for a rebellion of that magnitude which has occurred,-involving the destruction of all the legitimate and constitutional government in whole States of the Union, and involving a war between those States and the National Government. But the Constitution is a frame of government, and clearly implies the endowment of that Government with all powers necessary to maintain its own existence, and the vindication of its authority within the scope of its appropriate functions. When war was waged upon the United States by States of the Union, as

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