The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1869-06-17
MILITARY COMMISSIONS.
Opinion Of Attorney General HOar
ON the Trial of IN Citizen by the
Military i'm Texas---Ehe Proceed.
ing Legal under tlAe RecOnsfruc.
1iOn Acts

Military in Texas---Ehe Proceed
ing Legal under tlae RecOnsfruc.
/ GiOn Acts
WASHINGTON, June ), 1869.
The following has just been promulgated
ATTORNEY GENERALS OFFIcEl
May 81, 1869.
Hon. .Jola A. Ra,clfas, Secretary Of Var:
SIR Your letter of March 24 1863, sub
hitting for my opinion, as to the proper ac-
| ton TO be had in the premises, the case of
| James Weaver, citizen of Texas, who was
! tried before military commission appointed
by tue commanding general of the Fifth
military district under authority of section
! three of the act of March 2, 1861. to provide
| for the more efficient government of the
/ rebel States and found guBlty of murder
| and sentenced to be hanged. The record
| having been forwarded Tor the action of the
/ President as required by section four of
! said act, and returned by him to your de-
partment upon the lst day of February last,
without any action upon the same. was re-
eeiVed on the 26Eh of March last. The grave
/ importance of the questions involved re-
quiretl such careful and deliberate consid-
/ Grafton that, under the pressure of other Of
! fetal duties, have not been able until this
! time TO give IL sufficient attention. Having
now carefully examined ii, L proceed 10
state the conclusion to which 1 have arrived.
From the papers accompanying your letter
/ il appears that James Weaver, citizen of
! Bastrop county, Texas, was indicted for
murdcrin that county. BY request OF j. j
| Thornton, District Judge of the second Dis
trct of Texas, made to General Reynolds,
the commander of the Fifth Military Dis
trict, accompanied by statement that a
trial could nOt probably be had i'll the State
courts. and asking that he may be tried by
the military authorities, a military commits
sion was organized at Austin, Texas. before
which, on the 18th of September, 1865. and
the days following, Weaver was arraigned
! and tried. He was defended by counsel.
| was found guilty and sentenced to be hang
! ed, and the questiCn 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 military conf
mission in Texas, in September, 1868. had
jurisdiction over 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 Cen
! eral Reynolds. above referred to, which is
MAG part of the record in this case, it APP
pears 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 man
aged that If left with them no trial could
probably be had. Exceptions TO the juris-
! diction of the commission were filed by
/ Weaver. who obiected-tirst, that he was
| the constitution of the Unitel States pro-
vides that no person shall be twice put in
/ jeopardy of life orlimb for the same offence !;
/ that the offence with which he was charged
/ belonged entirely to the civil courts of the
| State of Texas, aud that lie would b. una
| BILE to plead the finding OF the commission
| in bar in the District Court in Bdstrop coun-
| ty; thirdly, that before t. e date OF the or
| der converting the commission he was under
/ indictment in the civil court, aud was under
arrest to await trial therein. and that the
! said Indictment for the same offence was
still pending against him; tourthly, because
the District Court OF Bastrop county was
| fully organized and prepared TO pass upon
all cases brought before ii; filthy, because
| the said Weaver was a citizen, not connect
! ed with the army of the II ited States. aud
| the deceased was also citizen. These OK
/ ceptionS were oYerruled by the commission
| The statute of March 2 1867. entitled An
act to provide for the more efficient govern
ment OF the rebel States" declares in its pre-
/ amble that no legal STATE governments ade-
| quate for the protection OF life and property
| then existed in the rebel States therein emu
merated, 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
1t was. therefore. enacted that the said rebel
States should be divided into military dis
tTicts and made subject to the military au-
thOrity of the United States, as hereinafter
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 en-
force his authority i'm the district to which
he was assigned. The third and fourth sec
tions of said act are as follows:
Section 3. And be it further enacted, That
it shall be the duty OF each officer assigned
as aforesaid TO protect all persons in their
rights of persons and property, to suppress
instruction, disorder and violence, and to
punish or cause to be punished all disturb
ers of the public peace and criminals; and to
this end he may allow local civil tribunals
to take jurisdiction of and to try offenders,
or when in his judgment may be necessa-
~ for the trial of offenders he shall have
power TO organize military commissions or
tribunals for that purpose, and all interfe-
rences under color of State authority with
the exercise of military authority of this
act shall be null and void.
Sec. 4. And be it further enacted, That
:sll persons put under military arrest by vir-
tue of this act shall be tried without unne-
cessary delays; no cruel treatment or unu-
sual punishment shall be Inflicted. and
sentence of any military commission or tri-
bunal hereby authorized, affecting the life
or liberty of any person, shall be executed
until it is approved by the officer in COM
mand of the district; and the laws and reg
ulations fol the government or the army
shall not be affected by this act except in
provided that no sentence of death under
the provisions of this act shall be carried
into effect without the approval OF the Pres
ident.
The act also provided that its provisions
shah become imperative when the states
had adopted the Consultations, approved Dy
Congress, and Senators and Representative
were admitted therefrcm, "and that until
the people of said States should be BY law
admitted TO representation in Congress, any
civil governments which may exist therein
shall be deemed provisional only, and in all
respects subject to the paramount authority
of the United States at any time 20 abolish.
modify, contract or supersede tire same"
As the State of Texas had not In September,
1865, and has not since adopted constltu-
ton in conformity with the provisions OF the
act, and has not become entitled TO represen-
tation In the Congress of the United states
the act was operative in Texas at the time
the military commission was organized Tor
the trial OF Weaver, and the Commanding
General exercised the discretion entrusted
to him by the third section. By deciding that
il was necessary for the trial of the offender
to organize military commission for that
purpose. If, therefore, this statute of March
2, 1867, is 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
the sentence.
1t - obvious, K the first place, that, under
the Constitution OF the United States. Con-.
gress has no right TO subject any citizen OF d
Seate % trial or punishment by military
power In tune Of peace. But the power %