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ORDERS AND PAPERS ON RECONSTRUCTION.
ADDITIONAL MILITARY ORDERS UNDER THE RECONSTRUCTION ACTS, AND THE NEW CONSTITUTION OF TEXAS.
Orders and Papers relating to Reconstruction, and General Action under the Reconstruction Laws.”
IIEADQUARTERs oF THE ARM7, ADJUTANT GENERAL's OFFICE, WASHINGTON, July 28, 1868. General Orders, No. 55: The following orders from the War Department, which have been approved by the President, are published for the information and government of the army and of all concerned: The commanding generals of the second, third, fourth, and fifth military districts having officially reported that the States of Arkansas, North Carolina, South Carolina, Louisiana, Georgia, Alabama, and Florida have fully complied with the acts of Congress known as the reconstruction acts, including the act passed June 22, 1863, entitled “An act to admit the State of Arkansas to representation in Congress," and the act passed June 25, 1868, entitled “An act to admit the States of North Carolina, South Carolina, Louisiana, Georgia, Alabama, and Florida to representation in Congress,” and that, consequently, so much of the act of March 2, 1867, and the acts supplementary thereto, as provide for the organization of military districts, subject to the military authority of the United States, as therein provided, has become inoperative in said States, and that the commanding generals have ceased to exercise in said States the military powers conferred by said acts of Congress: therefore, the following changes will be made in the organization an command of military districts and geographical departments: . The second and third military districts having ceased to exist, the States of North Carolina, South Carolina, Georgia, Alabama, and Florida, will constitute the department of the South; Major General George G. Meade to command. Headquarters at Atlanta, Georgia. II. The fourth military district will now consist only of the State of Mississippi, and will continue to be commanded by Brevet Major General A. C. Gillem. III. The fifth military district will now consist of the State of Texas, and will be commanded by Brevet Major General J. J. Reynolds. Headquarters at Austin, Texas. IV. The States of Louisiana and Arkansas will constitute the department of Louisiana. Brevet Major General L. H. Rousseau is assigned
*Continuation of the record from p.346 Hand-Book of Politics for 1868, or p. 87 Political Manual of 1868.
to the command. Headquarters at New Orleans, Louisiana. Until the arrival of General Rousseau at New Orleans, Brevet Major General Buchanan will command the department.
V. Brevet Major General George Crooke is assigned, according to his brevet of major general, to command the department of the Columbia, in place of Rousseau, relieved.
VI. Brevet Major General E. R. S. Canby is reassigned to command the department of Washington.
VII. Brevet Major General Edward Hatch, colonel 9th cavalry, will relieve General Buchanan as assistant commissioner of the Bureau of Refugees, Freedmen, and Abandoned Lands in Louisiana.
By command of General Grant.
E. D. Townsen D,
ATToRNEY GENERAL's OFFICE, August 20, 1868. ALEXANDER MAGRUDER, Esq., United States Marshal Northern District of Florida, St. Augustine, Florida.
SIR: Your letter of the 12th instant reached me yesterday, and has received an attentive consideration. Colonel Sprague's information to you must have been based upon his own construction of General Meade's order lately issued, and not upon any special instructions from the President to Colonel Sprague, through General Meade or otherwise, as no such special instructions have been issued by the President. You add: “Under some circumstances I should be glad to have the aid of the military, and, if practicable, would be pleased to have instructions given to the military to aid me when necessary. I ask this, as Colonel Sprague informs me under his instructions he cannot do so.” This desire and request for the aid of the mili: tary under certain circumstances I understand to refer to the occasional necessity which may arise that the marshal should have the means of obtaining the aid and assistance of a more considerable force than his regular deputies supply
for execution of legal process in his district. The 27th section of the judiciary act of 1789 establishes the office of marshal, and names among his duties and powers the following: “And to execute throughout the district all lawful precepts directed to him and issued under the authority of the United States, and he shall have power to command all necessary assistance in the execution of his duty, and to appoint, as there may be occasion, one or more deputies.”— (1st 87.) You will observe from this that the only measure of the assistance which you have power to command is its necessity for the execution of your duty, and upon your discreet, judgment, under your official responsibility, the law reposes the determination of what force each particular necessity requires. This power of the marshal is equivalent to that of a sheriff, and with either embraces, as a resort in necessity, the whole power of the precinct (county or district) over which the officer's authority extends. In defining this power Attorney General Cushing— and, as I understand the subject, correctly— says it “comprises every person in the district or county above the age of fifteen years, whether civilians or not, and including the military of all denominations—militia, soldiers, marines—all of whom are alike bound to obey the commands of a sheriff or marshal.” While, however, the law gives you this “power to command all necessary assistance,” and the military within your district are not exempt from obligation to obey, in common with all the citizens, your summons, in case of necessity, you will be particular to observe that this high and responsible authority is given to the marshal only in aid of his duty “to execute throughout the district all lawful precepts directed to him and issued under the authority of the United States,” and only in case of necessity for this extraordinary aid. The military |: obeying this summons of the marshal will act in subordination and obedience to the civil officer, the marshal, in whose aid in the execution of process they are called, and only to the effect of securing its execution. The special duty and authority in the execution of process issued to you must not be confounded with the duty and authority of suppressing disorder and preserving the peace, which, under our Government, belongs to the civil authorities of the States, and not to the civil authorities of the United States, Nor are this special duty and authority of the marshal in executing process issued to him to be confounded with the authority and duty of the President of the United States in the specific cases of the Constitution and under the statutes to protect the States against domestic violence, or with his authority and duty under special statutes to employ military force in subduing combinations in resistance to the laws of the United States; for neither of these duties or authorities is shared by the subordinate officers of the Government, except when and as the same may be specifically communicated to them by the President. I have thus called your attention to the general considerations bearing upon the subject to which your letter refers, for the purpose of securing a due observance of the limits of your duty and authority in connection therewith. Nothing can be less in accordance with the nature of our Government or the disposition of our people than a frequent or ready resort to military aid in the execution of the duties confided to civil officers. Courage, vigor, and intrepidity are appropriate qualities for the civil service
which the marshals of the United States are expected to perform, and a reinforcement of their power by extraordinary means is permitted by the law # in extraordinary emergencies. If it shall be thought that any occasion at any time exists for instructions to the military authorities of the United States within any of the States in connection with the execution of process of the courts of the United States, these instructions will be in accordance with the exigency then *: am, sir, very respectfully, your obedient serWant, WM. M. EvARTs, Attorney General. HEADQUARTERs of THE ARMY, ADJUTANT GENERAL's OFFICE, WASHINGTON, August 25, 1868. Major General G. G. MEADE, U.S.A., Commanding Department of South, Atlanta, Georgia. GENERAL: In reply to your request for instruction relative to the use of troops under your command in aid of the civil authorities, the Secretary of War directs to be furnished for your information and government the enclosed copies of a letter of instructions to Brevet Major General Buchanan, commanding department of Louisiana, dated August 10, # and of a letter from the Attorney General of the United States to Alexander Magruder, esq., United States marshal, northern district of Florida, dated August 20, 1868. e letter to General Buchanan indicates the conditions under which the military power of the United States may be employed to suppress insurrection against the government of any State, and prescribes the duties of the department commander in reference thereto. The letter of the Attorney General sets forth the conditions under which the marshals and sheriffs may command the assistance of the troops in the respective districts or counties to execute lawful precepts issued to them by competent authority. The obligation of the military, (individual officers and soldiers,) in common with all citizens, to obey the summons of a marshal or sheriff, must be held subordinate to their paramount duty as members of a permanent military body. Hence the troops can act only in their proper organized capacity, under their own officers, and in obedience to the immediate orders of their officers. The officer commanding troops summoned to the aid of a marshal or sheriff must also judge for himself, and upon his own official responsibility, whether the service required of him is lawful and necessary, and compatible with the proper discharge of his ordinary military duties, and must limit the action absolutely to proper aid in execution of the lawful precept exhibited to him by the marshal or sheriff. If time will permit, every demand from a civil officer for military aid, whether it be for the execution of civil process or to suppress insurrection, shall he forwarded to the President, with all the material facts in the case, for his orders; and in all cases the highest commander whose orders can be given in time to meet the emergencies will alone assume the responsibility of action. By a timely disposition of troops where there is reason to apprehend a necessity for their use, and by their passive interposition between hostile parties, dangers of collision may be averted. Department commanders, and in cases of necessity their subordinates, are expected, in this regard, to exercise, upon their own responsibility, a wise discretion, to the end that in any event the peace may be preserved. By command of General Grant. J. C. KELTON, Assistant Adjutant General.
HEADQUARTERS OF THE ARMY, ADJUTANT GENERAL's OFFICE, WASHINGTON, October 31, 1868. General Orders, No. 90. The following order has been received from the War Department, and is published for the information and guidance of all concerned: Soldiers may, for certain offences not strictly military, be sentenced by general court-martial to confinement in a penitentiary. If any State in a military department has made provision by law for confinement in a penitentiary thereof of prisoners under sentence by courts-martial of the United States, the department commander may designate such penitentiary as a place for the execution of any such sentence to penitentiary confinement; but if no such provision has been made by any State in the department, the record will be forwarded to the Secretary of War for designation of a prison. The authority which has designated the place of confinement, or higher authority, can change the place of confinement, or mitigate or remit the sentence. The same rules apply to prisoners sentenced by military commission, so long as the law under which the military commission acted is in force; but when that law ceases to be operative, the President alone can change the place of confinement, or mitigate or remit the sentence. By command of General Grant. E. D. TownsEND, Assistant Adjutant General. HEADQUARTERs of THE ARMY, ADJUTANT GENERAL's OFFICE, WASHINGTON, November 4, 1868. General Orders, No. 91. The following orders have been received from the War Department: WAR DEPARTMENT, WASHINGTON CITY, November 4, 1868. ": direction of the President, Brevet Major General E. R. S., Canby is hereby assigned to the command of the fifth military district, created by the act of Congress of March 2, 1867, and of the military department of Texas, consisting of the State of Texas. He will, without unnecessary delay, turn over his present command to the next officer in rank, and proceed to the command to which he is hereby assigned, and, on assuming the same, will, when necessary to a faithful execution of the laws, exercise any and all powers conferred by acts of Congress upon district commanders, and any and all authority pertaining to officers in command of military departments. Brevet Major General J. J. Reynolds is hereby relieved from the command of the fifth military district. J. M. SchoFIELD, Secretary of War. II. In pursuance of the foregoing order of the President of the United States, Brevet Major General Canby will, on receipt of this order, turn
over his present command to the officer next in rank to himself, and proceed to Austin, Texas, to relieve Brevet Major General Reynolds of the command of the fifth military district. By command of General Grant. E. D. TownsEND, Assistant Adjutant General.
HEADQUARTERS of THE ARMY, ADJUTANT GENERAL's OFFICE, WASHINGTON, March 5, 1869. General Orders, No. 10. The President of the United States directs that the following orders be carried into execution as soon as practicable: 1. The department of the South will be commanded by Brigadier and Brevet Major General A. H. Terry. 2. Major General G. G. Meade is assigned to command the military division of the Atlantic, and will transfer his headquarters to Philadelphia, Pennsylvania. He will turn over his present command temporarily to Brevet Major General T. H. Ruger, colonel 33d infantry, who is assigned to duty according to his brevet of major general while in the exercise of this command. 3. Major General P. H. Sheridan is assigned to command the department of Louisiana, and will turn over the command of the department of the Missouri temporarily to the next senior officer. 4. Major General W. S. Hancock is assigned to command the department of Dacotah. 5. Brigadier and Brevet Major General E. R. S. Canby is assigned to command the first military district, and will £ to his post as soon as relieved by Brevet Major General Reynolds. 6. Brevet Major General A. C. Gillem, colonel 24th infantry, will turn over the command of the fourth military district to the next senior officer, and join his regiment. 7. Brevet Major General J. J. Reynolds, colonel 26th infantry, is assigned to command the fifth military district, according to his brevet of major general. 8. £ Major General W. H. Emory, colonel 5th cavalry, is assigned to command the department of Washington, according to his brevet of major general. By command of the general of the army. E. D. Towns BND, Assistant Adjutant General. HEADQUARTERS OF THE ARMY, ADJUTANT GENERAL's OFFICE, WASHINGTON, March 16, 1869 General Orders, No. 18. By direction of the President of the United States, the following changes are made in military divisions and department commands: . Lieutenant General P. H. Sheridan is assigned to command the military division of the Missouri. II. Major General H. W. Halleck is assigned to the command of the military division of the South, to be composed of the departments of the South and Louisiana, of the fourth military district, and of the States composing, the present department of the Cumberland, headquarters Louisville, Kentucky. Major General Halleck will proceed to his new command as soon as relieved by Major General Thomas. III. Major General G. H. Thomas is assigned to command the military division of the Pacific. IV. Major General J. M. Schofield is assigned to command the department of the Missouri. The State of Illinois and post of Fort Smith, Arkansas, are transferred to this department. V. Brigadier and Brevet Major General O. O. Howard is assigned to command the department of Louisiana. Until his arrival, the senior officer, Brevet Major General J. A. Mower, will command according to his brevet of major general. VI. The department of Washington will be discontinued and merged in the department of the East. The records will be sent to the adjutant general of the army. # The first military district will be added to the military division of the Atlantic. VIII. As soon as Major General Thomas is ready to relinquish command of the department of the Cumberland, the department will be discontinued, and the States composing it will be added to other departments, to be hereafter designated. The records will be forwarded to the adjutant general of the army. By command of General Sherman: E. D. Towns END, Assistant Adjutant General. HEADQUARTERs of THE ARMY, ADJUTANT GENERAL's OFFICE, WASHINGTON, March 31, 1869. Special Orders, No. 75.
* * * *
16. By direction of the President of the United States, Brevet Major General A. S. Webb, U. S. army, is assigned to command the first military district, according to his brevet of major general, until the arrival of Brevet Major General Canby to relieve him. He will accordingly repair t Richmond, Virginia, without delay. *
By command of General Sherman:
E. D. TownsEND, Assistant Adjutant General.
HEADQUARTERs of THE ARMY, ADJUTANT GENERAL's OFFICE, WASHINGTON, April 3, 1869. General Orders, No. 29. I. By direction of the President of the United States, paragraph VIII of General Orders, No. 18, of March 16, 1869, is hereby revoked. II. Brigadier and Brevet Major General P. St. G. Cooke, U. S., army, is assigned to the command of the department of the Cumberland when it shall be relinquished by Major General Thomas. By command of General Sherman: - E. D. TownsEND, Assistant Adjutant General.
ORDERS OF THE DISTRICT COMMANDERS.*
First Military District—Virginia. HEADQUARTERS DEPARTMENT of VIRGINIA, RICHMOND, WA., June 23, 1869. General Order, No. 77. The laws of the State of Virginia and the or
*Continued from p.325 Hand-Book of Politics for 1868, or p. 65 Political Manual for 1868.
dinances of the different municipalities within the State having especial reference to and made to restrain the personal liberty of free colored persons were designed for the government of such persons while living amid a population of colored slaves; they were enacted in the interests of slave-owners, and were designed for the security of slave property: they were substantially parts of the slave code. Slavery has been abolished in Virginia; and, therefore, upon the principle that where the reason of the law ceases the law itself ceases, these laws and ordinances have become obsolete. People of color will henceforth enjoy the same personal liberty that other citizens and inhabitants enjoy; they will be subject to the same restraints and to the same punishments for crime that are imposed on whites, and to no others. Vagrancy, however, will not be permitted; neither whites nor blacks can be allowed to abandon their proper occupations, to desert their families, or roam in idleness about this department; but neither whites nor blacks will be restrained from seeking employment elsewhere, when they cannot obtain it with just compensation at their homes, nor from travelling from place to place on proper and legitimate business. Until the civil tribunals are re-established, the administration of criminal justice must of necessity be by military courts. Before such courts the evidence of colored persons will be received in all cases. By command of Major General A. H. Terry. ED. W. SMITH, A. A. G. Official: A. R. S. Foot'E, A. A. G.
1869, February 8–All civil officers, corporations, &c., required to make returns to the legislature, ordered to make the same to headquarters. March 15–The joint resolution respecting the provisional governments of Virginia and Texas was promulgated, and all officers unable to take the test oath removed, to take effect the 18th instant. March 18–Removal in accordance with above order suspended till the 21st instant. March 21—General Stoneman submitted his report, which showed that there were 5,446 offices in the State, 532 of which had been filled by General Schofield, 1,972 by General Stoneman, 329 could take the oath, and 2,613 were unfilled, owing to the difficulty in finding men able to take the test-oath. March 22—The mayor of Richmond asked the commanding officer if the appointment of colored olicemen would meet his approval, who on the # answered that it would, and so would their appointment to all positions to which they were eligible and for which they were competent. March 27–General Stoneman took upon himself the duties of governor, removing Governor Wells. March 30–In compliance with Special Order, 75, A. G. O., Brevet Major General A. G. Webb assumed command April 2–Governor Wells was reinstated. April 3–It appearing that the organization of civil government under the reconstruction laws in certain counties proved to be impossible, since suitable persons to qualify and assume the duties of the various offices of this district, under the
laws of the United States, had not been found, military officers were again appointed in some sections of the State. April 20–General E. R. S. Canby assumed command. April 22–All officers of the provisional government ordered to take the test-oath. May 7–Orders that “all persons elected or appointed to civil office who have subscribed the oath of office of July 2, 1862, and filed the same with county clerks or with other civil officers, as required by law, will cause duly certified copies of said oath to be made and filed at these headquarters, that their ability to qualify under the joint resolution of Congress passed February 6, 1869, (Public, No. 6,) may be definitely ascertained. A failure to send forward such oath will be an indication that the office is vacated under the resolution before cited.” May 27–Assigns military commissioners and superintendents of registration and election; invests the military commissioners with all the powers of justices of the peace and police magistrates, to be “governed in the execution of their duties by the laws of Virginia, except so far as those laws may conflict with the laws of the United States or with the orders issued from these headquarters;” places at their disposition all peace officers, in addition to troops; makes it their duty to promptly report to headquarters all cases, and when parties are held for trial, either in confinement or under bail, the cases to be so fully reported as to enable the commanding general to decide whether they shall be tried by a military commission or a civil court; declares that the powers herein conferred upon military commissioners are not to be construed as extending to the inhabitants in their ordinary ersonal relations, but to the end that United tates laws be duly executed and full protection given to all parties in their rights of person and property, and that they will only be exercised where the civil authorities refuse or fail to act, or exact and impartial justice from the civil courts cannot be secured; all persons required to obey and execute all lawful orders of the military commissioners. Civil officers not relieved from duty—this order being intended to aid and not supersede them—except in cases of necessity. The superintendents of registration and election districts are invested with similar but subordinate powers to those of military commissioners, to or through whom they must report. June 29-The stay of executions against personal property extended until January 1, 1870: Provided, That between January 1 and August 1, 1869, the debtor shall have paid one year's interest upon the principal sum due. June 30–To guard against fraud, two ballotboxes at each polling place: one to receive ballots for or against the constitution as a whole, the other, for or against the separate clauses to be voted on ; a committee of not more than three persons from each political party to witness ballot counting, but none save sworn election officers to examine or handle poll-lists, ballot-boxes, or ballots.
In justification of his test-oath order, General Canby wrote the following letter:
HEADQUARTERS FIRST MILITARY DISTRICT, STATE of VIRGINIA, RICHMOND, VA., June 20, 1869.
Mr. B. W. GILLIS, Richmond, Va. SIR : I have received your note of the 23d instant, and will state in reply to the inquiries therein made— First. That I have uniformly held that members of the general assembly and State officers to be elected on the 6th proximo would be required to take, before entering upon the duties of their offices, the oath prescribed by the law of July 2, 1862, unless the constitution should first be approved by Congress, or the oath be otherwise £i with by law. Second. That this decision is in conformity with the action heretofore taken upon the same subject in another district, and was based upon a careful consideration of all the laws bearing upon the question now presented. The 6th section of the law of March 2, 1867, rovides "That until the people of the said rebel States shall be by law admitted to representation in the Congress of the United States, any government which may exist therein shall be deemed provisional only, and in all respects subject to the paramount authority of the United States to abolish, modify, £ or supersede the same.” The conditions that must precede this admission to representation are prescribed by the 5th section of the same law, the 5th section of the law of March 23, 1867, and the 6th section of the law of April 10, 1869. The same section prescribes the qualifications of voters in all elections to office, and the qualifications (eligibility) of officers under such provisional governments. The supplementary law of March 23, 1867, modified the qualifications of voters by prescribing registration and determining the conditions essential to registration, and the amendatory law of March 13, 1868, section 2, applied the same qualifications (registered voters) to the voters for members of the House of Representatives of the United States, and all elective offices provided for by those constitutions, at the elections to be held upon the questions of ratifying or rejecting the proposed constitutions, and the 9th section of the law of July 19, 1867, imposes, an additional qualification upon the officers, by requiring that they shall take the oath of office prescribed by the law of July 2, 1862. Under the original £ of March 2, 1867, (section 5,) it was in the power of the district commander to prescribe an oath of office, conforming to the conditions of eligibility prescribed by that section, and this in fact was done by several of the district commanders in this district b General Orders, No. 9, of April 5, 1867; and these oaths continued in force until they were £ by the oath required by the law of July 19, 1867. That law placed the subject beyond the discretion and control of the district commander, and he cannot now prescribe or adopt any different oath without disregardin or annulling a positive and controlling law. have heretofore held, and do now hold, that the approval by Congress of any proposed constitution makes it a part of the reconstruction laws, and, to the extent that Congress directs or authorizes any action under it in advance of the