Page images



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.

Sır, – 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, I 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 in 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 organized communities, Congress could and must recognize the existence of that war, and apply itself by the means belonging to war to the vindication of the national authority, the preservation of the national territory, and the restoration of a republican government under the national Constitution in each of the rebellious States, as was said by the Supreme Court in The Prize Cases 2 Black, 635, 673. It is a proposition never doubted that the belligerent party, who claims to be sovereign, may exercise both belligerent and sovereign rights. The territory possessed by the rebels might lawfully and constitutionally be treated by the United States as enemies' territory, in the language of the court in the same case, and persons residing within this territory, whose property may be used to increase the revenues of the hostile power, are in this contest liable to be treated as enemies, though not foreigners. They have cast their allegiance and made war on their government, and are none the less enemies because they are traitors. Where all lawful governments have been extin guished by the rebellion on the theatre of active military operation, where war really prevailed, there is a necessity to furnish a substitute for the civil authority thus overthrown to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. The right to govern by military law under such circumstances was fully conceded in the opinion of the Supreme Court of the United States in Ex parte Milligan, 4 Wall. 2, 127. The test is there suggested that the right to govern by military power depends upon the fact that the courts are actually closed, and that it is impossible to administer criminal justice according to law. But while the war continues, although military power may be the only government in territory held by force of arms, the military commander may make use of such local tribunals as he may find it convenient to employ in subjection to his paramount authority. It then remains to consider, 1st, whether the State of Texas has been, during the Rebellion, so deprived of all constitutional and lawful government as a State, and so in armed hostility to the Government of the United States, as to be subject to military law when the possession of her territory was regained by the military of the United States ; and, 2d, whether the right to hold and govern the State by military power is terminated. To the first question there can be but one answer. In the language of Chief Justice Chase, in Texas v. White (2 L. T. Cts. Rep. 79 ;) [3 Am. Law Rev. 765), decided at the present term of the Supreme Court, “ No one has been bold enough to contend that while Texas was controlled by a government hostile to the United States, and in affiliation with a hostile confederation, waging war upon the United States, senators chosen by her legislature, or representatives elected by her citizens were entitled to seats in Congress; or that any suit instituted in her name could be entertained in this court. All admit that, during this condition of civil war, the rights of the State as a member, and of her people as citizens of the Union, were suspended. The government and citizens of the State, refusing to recognize their constitutional obligations, assumed the character of enemies, and incurred the consequence of rebellion."

The second question is one of more importance and difficulty. Having suppressed the Rebellion so far as it was maintained by an armed force, it became the duty of Congress to re-establish the broken relations of the State with the Union ; and the same authority which recognized the existence of the war is, in my judgment, the only authority having the constitutional right to determine when, for all purposes, the war has ceased. The rights of war do not necessarily terminate with the cessation of actual hostilities. I can have no doubt that it is competent for the nation to retain the territory and the people which have once assumed a hostile and belligerent character within the grasp of war until the act of restoring the relations of peace can be accomplished, and that it is for Congress, the department of the National Government to

which the power to declare war is intrusted by the Constitution, to determine when the war has so far ended that this work can be safely and successfully completed. The Act of March 2, 1867, is, in my opinion, a legislative declaration that in Texas the war which sprang from the Rebellion is not, to all intents and purposes ended, and that it shall be held to continue until, in conformity with the legislative will, a State government, 'republican in form, and subordinate to the Constitution and laws of the United States, for which the act makes provision, shall have been re-established. It is true that in several acts of Congress the suppression of the Rebellion and the end of the war have, in express terms, or by implication, been recognized; but it will be found, on examination, that these phrases have been used in regard to special subjects, which does not seem to me inconsistent with the proposition that for some purposes the rights of war are not ended, while, in respect to captured and abandoned property, a limitation of the right to commence suits in the Court of Claims, dating from the end of the Rebellion, has been fixed by statute ; and for the purpose of settling the question of the pay of officers in the volunteer army, the date of the President's proclamation, declaring the insurrection at an end, has been adopted to interpret the precise "close of the war.” It does not seem to be inconsistent with either of these enactments that Congress should declare that the States, whose civil governments have been destroyed, should continue under military authority until such governments could be restored. Every act of Congress, too, is presumed to be constitutional unless the contrary plainly appears. It is also presumed that Congress will provide for the restoration, through constitutional governments, of the rebellious States, as speedily as in its judgment public safety will allow; but until civil authority is restored, and the rights of persons and property can be protected in the region which has been the theatre of war by organized governments, the direction by Congress to employ a military force to give that protection and to preserve the peace would seem to be the only alternative with anarchy. It appears by the papers in the case that the trial of Weaver before the military commission was fairly and carefully conducted, and that the murder of which he was convicted was wanton and cruel. A freedman who had been at work for Weaver, and had chosen to leave his employment to go and work for another man, went to him in the field, near his house, in the morning, to ask for the wages that were due him. Weaver seized an ox-bow, and beat him severely with that. He then sent his hired man to his house for a doublebarrelled gun, loaded with buckshot, and on his return with it, shot the freedman through the head, killing him instantly. There appears to have been neither provocation nor resistance. This atrocious act was committed in the sight of the wife of the man murdered, who stood by her own door. The finding of the commission has been approved by the military commander, and has been certified to be regular and proper by the Judge Advocate General. I find no reason in law for the President's withholding his approval. - (Attorney General Hoar, in answer to Secretary of War, May 81, 1869.)

CALIFORNIA. UNITED STATES CIRCUIT COURT. - In re Hastings. Proctor stricken from the Rolls. W. Hastings, proctor in admiralty, brought a suit in the United States District Court against the ship Gentoo, claiming damages for alleged ill treatment. The case was tried before Judge Hoffman, who delivered an opinion, and entered a decree dismissing the libel. An appeal was taken by Mr. Hastings to the Circuit Court, and the decree of the District Court was affirmed by Judge Field. Under these circumstances, Mr. Hastings gave a notice of a motion to be made before Judge Hoffman, the result of which was the following order :-

A rule having been heretofore entered requiring Mr. Hastings, a proctor of this court, to show cause on this day why he should not be stricken from the rolls of the court, or otherwise proceeded against as for contempt; and the said Hastings being here present in court, and being called upon to answer said rule, admitted and avowed that he filed with the clerk a certain paper purporting to be a notice of motion, which paper is as follows:

“In the Circuit Court of the United States for the District of California. - Sigmund Austin et al., Libellants and Appellants, v. the ship Gentoo (L. Freeman, Claimant), Appellee. — In Admiralty. You will please to take notice that as soon as appellants can obtain an impartial hearing I will move the court to set aside the decree made by the Circuit Court in the above-entitled cause, and grant a hearing thereof, on the following grounds; namely: First. That the decision is clearly against evidence. Second. That the decision is clearly against law. Third. That the decision was made without examination of the pleadings, proofs, further proofs, or written arguments in said cause, or the questions of law raised and submitted therein for consideration and adjudication, and without due or any consideration or deliberation. Fourth. That said decision is the result of either prejudice or corruption, and made in wilful violation of a known duty. And you will further take notice, that on the hearing of said motion the pleadings, proofs, and further proofs adduced in said cause and the opinion of the court below, the brief or written argument submitted by appellee, and the brief or written argument submitted by appellants, will be read and referred to on the hearing of said motion and affidavits to be filed.

“W. W. HASTINGS, Proctor for Appellants. “June 23d, 1869. “To Messrs. Casserly & Barnes, Esqrs., Proctors for Appellee.”

And the said W. Hastings having also admitted that he had served a copy of same on W. H. L. Barnes, proctor and advocate of this court, and thereupon having asked the court twenty days' time to prepare his defence and to make good and substantiate the charges and statements contained in said notice, which was by the court refused, and it appearing from the files of this court, and also by the confession of the said Hastings, that he had filed and served the paper hereinbefore set forth — it is therefore adjudged by the court that the said W. Hastings is guilty of a contempt of this court; and it is ordered that the name of the said W. Hastings be stricken from the roll of attorneys, counsellors, solicitors, proctors, and advocates of this court, and this judgment and order be entered on the minutes.

CONNECTICUT. SINCE 1854, there has been but one nisi prius court of general jurisdiction in Connecticut, — the Superior Court; although county courts, for the trial of cases involving small amounts, had been previously maintained almost since the foundation of the colony. For several years past, the dockets of the courts in the principal counties have been so large, that a contested suit was rarely tried on the merits until three or four years after its commencement; and the last legislature therefore created a Court of Common Pleas for Hartford and New Haven counties, having exclusive jurisdiction of all cases not within the cognizance of justices of the peace, and not involving over $500.

UNITED STATES CIRCUIT Court. - At the April term, the case of Curtis v. Smith was tried before Shipman, J., on an issue closed to the court. A., who was domiciled in Illinois, died leaving a fund to B., in trust, to apply whatever of it might be necessary for the maintenance of C. during his minority, and pay the

« PreviousContinue »