Evening star. [volume] (Washington, D.C.) 1854-1972, 1867-09-05

ed by the military authority of the Distric
Commander.
J. The question remains, whether a person
re siding out OF the military district can come
here and by the process OF q court Of the Uni
ted States enforce remedies rightfully prohib.
tied as TO all persons belonging within the dis
trict, and which comics sedIy could not be pros
ecuted by any party in the State courts. Un-
less this question be answered in the negative,
1t follows that Stranger coming within this
military command brings with him rights and
privileges not possessed ny persons residing
exemption IN his own person from the obliga-
tion resting upon all residents to obey the or
ders Of the military commander, but also ths
power TO deprive any CaroiinIan, againsi
whom such stranger prosecutes demand, OF
whatever Tights and inmunines may have
been given or assured to the people OF the Car
olinas by General Orders No. TO-
4. No question or issue has vet arisen be.
tween the courts of the United States IN this
military district and the district commander.
II appears. however, that an Issue is invited
ulatlons prescribed in General Orders No /,
have not been considered or passed upon by
any OF the courts Of the United States, except
in the South Carolina circuit, where, as has
been seen, the provisions of the order were en-.
forced. The only judicial precedent, there
fore, is against the action Of the Marshal OF
North Carolina, VINO is not even a judicial Of
fcer. The process in the hands OF his deputy
was not issued upon any Judgment. decree or
order in which the court had passed upon the
powers, duties or orders ofany military officer.
1t is TO be presumed that perfect harmony OF
action does exist, and will continue to exist,
between the Federal judiciary and the mill :.
tary authorities of the Uniteo States In the Sec.
ond Military District. FL.
hands Of deputy Marshal has been tempe.
rarliy suspended; the matter is held under
advisement by the District Commander until
the real nature and character Of the proceed
n ~ IN hA n nod hxy<. ool s,r~x
ton and report. Upon the coming in Of such
report, one of several views may be properly
taken Of the matter; the Marshal may be al.
lowed to 60 on further action may be defer
red until the next term OF the Cireu t Court In
North Carolina, when, on the return the Mar
shall may then make, the court Will decade
whether or not 1t will observe the regulations
prescribed by competent military authority !:
or the whole subject may be reported TO the
General-in- Chief for his further instruction
and final disposition.
6. Beyond the temporary suspension by the
Post ComDander OF the execution Of the civil
process in question, and the approval of such
action by the Major General Commanding the
District there has been no hindrance or inter.
wolves no unusual delay, because tine Marshal
Is not required by law to make any return I'M.
til the next term OF the court.
!. Although 1t may be assumed the District
Commander would, unless otherwise ordered.
continue in force the order suspending the
execution OF the process in the hands Of the
Marshal and ali other like process, il will be
observed that 9 question has not yet been de-
cided by the District Commander The case
for his defnisive action has not yet been pre-
sented; and the delay is mainly owing to the
refusal of the Marshal to give to the military
authorities the information in bis possession
which is essential to final action.
The case as IL now stands involves the in
admissible proposition that any Marshal or
Deputy Marshal of court OF the United
States sittIrg in a rebel State, may execute any
process whatever in his hands against all per.
soas within the State for which he is appoint.
ed, no matter If that process be one for the ar
rest OF garrison. or Of the Commanding ON.
Ger OF Military Post, or OF the District Com
mrHder; conclusion that practically subor-
dinates the military government established
by Congress in these States, to the authority
and caprice of a subordinate civil function
ary. H I ..st-z
Q. The true intent and meaning of the seve.
raj acts Of Congress for the government of the
rebel States is, that in the absence OF all legal
civil government therein, the paramount au-
thority OF Congress over them shall be exer-
cised by the General In Chief OF the armies:
and, subordinate to him, by the Generals com
mandlng the several Military Districts, as
they were constituted on the nine tee n ID day OF
July, one thousand eight hundred and sixty
seven. when the last OF the Supplementary Acts
became law.
10. 1t was not contemplated by Congress
that any court whatever, held 10 the rebel
States, and still less than any Marshal, Dep.
uty Marshal, Sheriff or Constable, should do
or be suffered to do any act IN derogation OF
the orders of the General in. Chief of the
armies, or OF the Generals comman ding Mill
tary Districts The Supreme Court of the
United States has recently, in well known
case. SO construed its own authority in refus.
ing to interfere with the execution OF the Acts
these States.
II. In june. 1866, after the peace proclama.
tion. the Secretary OF War, your iiIustrious
predecessor, approved Of my refusal to obey
the mandate OF the United Estates Court ,for
South Carolina; and when in conseQ uence of
such refusal, the court ordered nv arrest I
was instructed to take into custody all the par.
ties who might engage In that proceeding 1t
did not become necessary to execute these in
siruehons: Inc executive communication
now mentioned is the only one ever received
by the undersigned on the subject OF his of.
fetal relation to the courts OF the United States
in this Military District
IL. The reported remark of the learned and
distinguished Ohief Justice that "the military
does not extend in any respect to the
courts OF the United States" was made before
the passage of the act of Congress OF july 10.
claratory act in conseq uence of certain opinions
of the Attorney General, the highest law off,
Ger OF the Government. And to prevent SINH
lar endorsements to the execution OF the acts
OF Congress, II was among,other things enacted:
"rha1 no District Commander or member of
the Boards Of Registration, or any of the off,
bound in his action by any opinion of any civil
officer OF the United States" 1t would be diff
cult by legislative provisions 10 define within
narrower limits the preroRatives of civil au-
thorily in the Military Districts.
l3. The modes Of procedure of the Circuit
ana District Courts OF the United States, ana
the action Of their ministerial officers in the
execution OF process, have hitherto, by the
laws OF Congress and the rules of practice
prescribed by the Supreme Court, confermed
substantially with the practice and procedure
OF Inc courts OF the State or Territory in which
the Fed. raj Courts are respectively held.
IA. Congress having substituted military au.
Ii ority for that of certain illegal governments
in these States, 1t cannot be doubted that a
Federal Court, sitting in this M Miiitary District
having the power 10 modify its own rules
and appreciating the true intent and meaning
In the exlgency which suggested those provis-
ions OF General Orders No. 10 relating 10 pro.
ceedings in certain civil actions, sufficient
ground to move the court 10 conform TO the
prescribed In that order, ana there.
by preserve ths harmony heretofore existing
between the Federal judiciary, the local courts
and the military authority in the rebei States.
Is. BY the foregoing recapitulation, It will
be apparent that no ssne exists between the
military authorities In this District and any
OF the Courts of the United States therein: thai
no court In this n ilitary District has refused
to conform to the military regulations Dre- i
scrioed sor the government Of the people
thereof; that the Marshal Of North Carolina
~ 50 far as PC claims exemption a. Q public
to have ihe sanction OF the judicial tr1bunsl Of
which 10 10 the servant; that the action OF the
Post Commander at Wilmington has boon con.
lined to the temporary suepfnsion OF an exc.
cption for the collection Of debe,th hat ths Dfs.
trjct Commander holds the case under consid,
The actson OF the Commanding ofYIcer of III.
Post. thar the M0rnhal In vim = >hAan recnn.tnd