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XLIV.

HL. Sibley

ORDERS AND PAPERS ON RECONSTRUCTION.

ADDITIONAL MILITARY ORDERS UNDER THE RECONSTRUCTION ACTS, AND THE

NEW CONSTITUTION OF TEXAS.

Orders and Papers relating to Reconstruction, to the command. Headquarters at New Orand General Action under the Reconstruction leans, Louisiana. Until the arrival of General Laws.*

Rousseau at New Orleans, Brevet Major General

Buchanan will command the department.
II EADQUARTERS OF THE ARMY,

V. Brevet Major General George Crooke is
ADJUTANT GENERAL'S OFFICE,

assigned, according to his brevet of major genWASHINGTON, July 28, 1868.

eral, to command the department of the ColumGeneral Orders, No. 55:

bia, in place of Rousseau, relieved. The following orders from the War Depart. VI. Brevet Major General E. R. S. Canby is ment, which have been approved by the Presi- reassigned to command the department of Washdent, are published for the information and ington. government of the army and of all concerned: VII. Brevet Major General Edward Hatch,

The commanding generals of the second, colonel 9th cavalry, will reliere General Buthird, fourth, and fifth military districts having chanan as assistant commissioner of the Bureau officially reported that the States of Arkansas, of Refugees, Freedmen, and Abandoned Lands North Carolina, South Carolina, Louisiana, in Louisiana. Georgia, Alabama, and Florida have fully com By command of General Grant. plied with the acts of Congress known as the

E. D. TOWNSEND, reconstruction acts, including tho act passed

Assistant Adjutant General June 22, 1863, entitled “An act to admit the State of Arkansas to representation in Con;

ATTORNEY GENERAL'S OFFICE, gress," and the act passed June 25, 1868, entitled

August 20, 1868. An act to admit the States of North Carolina, ALEXANDER MAGRUDER, Esq., South Carolina, Louisiana, Georgia, Alabama, United States Marshal Northern District and Florida to representation in Congress," and

of Florida, St. Augustine, Florida. that, consequently, so much of the act of March SIR: Your letter of the 12il instant reached 2, 1867, and the acts supplementary thereto, as me yesterday, and has received an attentive provide for the organization of military dis- consideration. Colonel Sprague's information to tricts, subject to the military authority of the you must have been based upon his own conUnited States, as therein provided, has become struction of General Meade's order lately issued, inoperative in said States, and that the com- and not upon any special instructions from the manding generals have ceased to exercise in President to Colonel Sprague, through General said States the military powers conferred by Meade or otherwise, as no such special instrucsaid acts of Congress: therefore, the following tions have been issued by the President. You changes will be made in the organization and add: “Under some circumstances I should be command of military districts and geographical glad to have the aid of the military, and, if departments :

practicable, would be pleased to have instruc. 1. The second and third military districts tions given to the military to aid me when having ceased to exist, the States of North Caro, necessary. I ask this, as Colonel Sprague inlina, South Carolina, Georgia, Alabama, and forms me under his instructions he cannot do Florida, will constitute the department of the South ; Major General George G. Meade to com This desire and request for the aid of the milimand. Headquarters at Atlanta, Georgia. tary under certain circumstances I understand

II. The fourth military district will now con- to refer to the occasional necessity which may sist only of the State of Mississippi, and will arise that the marshal should have the means of continue to be commanded by Brevet Major obtaining the aid and assistance of a more conGeneral A. C. Gillem.

siderable force than his regular deputies supply III. The fifth military district will now con. for execution of legal process in his district. sist of the State of Texas, and will be com The 27th section of the judiciary act of 1789 manded by Brevet Major General J.J. Reynolds. establishes the office of marshal, and names Headquarters at Austin, Texas.

among his duties and powers the following: IV. The States of Louisiana and Arkansas" And to execute throughout the district all lawwill constitute the department of Louisiana, ful precepts directed to him and issued under Brevet Major General L. H. Rousseau is assigned the authority of the United States, and he shall

* Continuation of the record from p. 346 IIand-Book have power to command all necessary assistance of Politics for 1868, or p. 87 Political Manual of 1868. in the execution of his duty, and to appoint, as

40

so."

there may be occasion, one or more deputies." which the marshals of the United States are ex(1st | 87.)

pected to perform, and a reinforcement of their You will observe from this that the only power by extraordinary means is permitted by measure of the assistance which you have power the law only in extraordinary emergencies. to command is its necessity for the execution of If it shall be thought that any occasion at any your duty, and upon your discreet judgment, time exists for instructions to the military authorunder your official responsibility, the law reposes ities of the United States within any of the States the determination of what force each particular in connection with the execution of process of necessity requires. This power of the marshal the courts of the United States, these instructions is equivalent to that of a sheriff, and with either will be in accordance with the exigency then embraces, as a resort in necessity, the whole appearing. power of the precinct (county or district) over I am, sir, very respectfully, your obedient serwhich the officer's authority extends. In de- vant,

Wå. M. EVARTS, fining this power Attorney General Cushing

Attorney General. and, as I understand the subject, correctlysays it "comprises every person in the district HEADQUARTERS OF TIE ARMY, or county above the age of fifteen years, whether

ADJUTANT GENERAL'S OFFICE, civilians or not, and including the military of all

WASHINGTON, August 25, 1868. denominations—militia, soldiers, marines—all Major General G. G. MEADE, U. S. A., of whom are alike bound to obey the commands Commanding Department of South, of a sheriff or marshal."

Atlanta, Georgia. While, however, the law gives you this "pow GENERAL: In reply to your request for in. er to command all necessary assistance," and the struction relative to the use of troops under military within your district are not exempt from your command in aid of the civil authorities, obligation to obey, in common with all the citi- the Secretary of War directs to be furnished for zens, your summons, in case of necessity, you your information and government the enclosed will be particular to observe that this high and copies of a letter of instructions to Brevet Major responsible authority is given to the marshal General Buchanan, commanding department of only in aid of his duty “to execute throughout Louisiana, dated August 10, 1868, and of a letter the district all lawful precepts directed to him from the Attorney General of the United States and issued under the authority of the United to Alexander Magruder, esq., United States States," and only in case of necessity for this ex- marshal, northern district of Florida, dated traordinary aid. The military persons obeying August 20, 1868. this summons of the marshal will act in subordi The letter to General Buchanan indicates the nation and obedience to the civil officer, the conditions under which the military power of marshal, in whose aid in the execution of process the United States may be employed to suppress they are called, and only to the effect of securing insurrection against the government of any its execution.

State, and prescribes the duties of the departThe special duty and authority in the execu. ment commander in reference thereto. tion of process issued to you must not be con The letter of the Attorney General sets forth founded with the duty and authority of sup- the conditions under which the marshals and pressing disorder and preserving the peace, sheriffs may command the assistance of the which, under our Government, belongs to the troops in the respective districts or counties to civil authorities of the States, and not to the execute lawsul precepts issued to them by comcivil authorities of the United States. Nor are petent authority. this special duty and authority of the marshal The obligation of the military, (individual ofiin executing process issued to him to be con- cers and soldiers,) in common with all citizens, founded with the authority and duty of the to obey the summons of a marshal or sheriff, President of the United States in the specific must be held subordinate to their paramount cases of the Constitution and under the statutes duty as members of a permanent military body. to protect the States against domestic violence, Hence the troops can act only in their proper or with his authority and duty under special organized capacity, under their own officers, and statutes to employ military force in subduing in obedience to the immediate orders of their combinations in resistance to the laws of the officers. The officer commanding troops sumUnited States; for neither of these duties or moned to the aid of a marshal or sheriff must authorities is shared by the subordinate officers also judge for himself, and upon his own official of the Government, except when and as the same responsibility, whether the service required of may be specifically communicated to them by him is lawful and necessary, and compatible the President.

with the proper discharge of his ordinary miliI have thus called your attention to the gen- tary duties, and must limit the action absolutely eral considerations bearing upon the subject to to proper aid in execution of the lawful precept which your letter refers, for the purpose of exhibited to him by the marshal or sheriff. securing a due observance of the limits of your If time will permit, every demand from a civil duty and authority in connection therewith. officer for military aid, whether it be for the exeNothing can be less in accordance with the na-cution of civil process or to suppress insurrection, ture of our Government or the disposition of our shall he forwarded to the President, with all the people than a frequent or ready resort to military material facts in the case, for his orders; and in aid in the execution of the duties confided to all cases the highest commander whose orders civil officers. Courage, vigor, and intrepidity can be given in time to meet the emergencies are appropriate qualities for the civil service will alone assume the responsibility of action.

By a timely disposition of troops where there is over his present command to the officer next in reason to apprehend a necessity for their use, rank to himself, and proceed to Austin, Texas, and by their passive interposition between hos- to relieve Brevet Major General Reynolds of the tile parties, dangers of collision may be averted. command of the fifth military district.

Department commanders, and in cases of ne By command of General Grant. cessity their subordinates, are expected, in this

E. D. TOWNSEND, regard, to exercise, upon their own responsibility,

Assistant Adjutant General. a wise discretion, to the end that in any event the peace may be preserved.

HEADQUARTERS OF THE ARMY, By command of General Grant.

ADJUTANT GENERAL'S OFFICE, J. C. KELTON,

WASHINGTON, March 5, 1869. Assistant Adjutant General.

General Orders, No. 10.

The President of the United States directs that HEADQUARTERS OF THE ARMY,

the following orders be carried into execution as ADJUTANT GENERAL'S OFFICE,

soon as practicable: WASHINGTON, October 31, 1868. 1. The department of the South will be comGeneral Orders, No. 90. The following order has been received from manded by Brigadier and Brevet Major General

A. H. Terry: the War Department, and is published for the

2. Major General G. G. Meade is assigned to information and guidance of all concerned: Soldiers may, for certain offences not strictly and will transfer his headquarters to Philadel

command the military division of the Atlantic, military, be sentenced by general court-martial to confinement in a penitentiary.

phia, Pennsylvania. He will turn over his presIf any State in a military department has made ent command temporarily to Brevet Major Gen. provision by law for confinement in a peniten: assigned to duty according to his brevet of major

eral T. II. Ruger, colonel 33d infantry, who is tiary thereof of prisoners under sentence by courts-martial of the United States, the depart general while in the exercise of this command. ment commander may designate such peniten: 1 to command the department of Louisiana, and

3. Major General P. H. Sheridan is assigned tiary as a place for the execution of any such will turn over the command of the department sentence to penitentiary confinement; but if no of the Missouri temporarily to the next senior such provision has been made by any State in

officer. the department, the record will be forwarded to the Secretary of War for designation of a prison. to command the department of Dacotah.

4. Major General W. S. Hancock is assigned The authority which has designated the place of confinement, or higher authority, can changes. Canby is assigned to command the first mili

5. Brigadier and Brevet Major General E. R. the place of confinement, or mitigate or remittary district, and will proceed to his post as soon the sentence.

The same rules apply to prisoners sentenced as relieved by Brevet Major General Reynolds. by military commission, so long as the law under 24th infantry, will turn over the command of

6. Brevet Major General A. C. Gillem, colonel which the military commission acted is in force; the fourth military district to the next senior but when that law ceases to be operative, the officer, and join his regiment. President alone can change the place of confinement, or mitigate or remit the sentence.

7. Brevet Major General J. J. Reynolds, coloBy command of General Grant.

nel 26th infantry, is assigned to command the E. D. TOWNSEND,

fifth military district, according to his brevet Assistant Adjutant General.

of major general.

8. Brevet Major General W. H. Emory, coloHEADQUARTERS OF THE ARMY,

nel 5th cavalry, is assigned to command the ADJUTANT GENERAL'S OFFICE,

department of Washington, according to his

brevet of major general. WASHINGTON, November 4, 1868.

By command of the general of the army. General Orders, No. 91. I. The following orders have been received

E. D. TOWNSEND, from the War Department:

Assistant Adjutant General. WASHINGTON City, November 4, 1868.

HEADQUARTERS OF THE ARMY, By direction of the President, Brevet Major General

ADJUTANT GENERAL'S OFFICE, E. R. S. Canby is hereby assigned to the command of the fifth military district, created by the act of Con

WASHINGTON, March 16, 1869 gress of March 2, 1867, and of the military department General Orders, No. 18. of Texas, consisting of the State of Texas. He will, By direction of the President of the United without unnecessary delay, turn over his present command to the next officer in rank, and proceed to the States, the following changes are made in milicommand to which he is hereby assigned, and, on as- tary divisions and department commands : suming the same, will, when necessary to a faithful I. Lieutenant General P. H. Sheridan is asexecution of the laws, 'exercise any and all powers signed to command the military division of the ers, and any and all authority pertaining to officers in Missouri. command of military departments.

II. Major General H. W. Halleck is assigned Brevet Major General J. J. Reynolds is hereby re- to the command of the military division of the lieved from the command of the fifth military district.

J. M. SCHOFIELD, South, to be composed of the departments of the

Secretary of War. South and Louisiana, of the fourth military disII. In pursuance the foregoing order of the trict, and of the States composing the present President of the United States, Brevet Major department of the Cumberland, headquarters General Canby will, on receipt of this order, turn Louisville, Kentucky. Major General Halleck

WAR DEPARTMENT,

*

*

will proceed to his new command as soon as I dinances of the different municipalities within relieved by Major General Thomas.

the State having especial reference to and made III. Major General G. H. Thomas is assigned to restrain the personal liberty of free colored to command the military division of the Pacific. persons were designed for the government of

IV. 1ajor General J. M. Schofield is assigned such persons while living amid a population of to command the department of the Missouri, colored slaves; they were enacted in the interThe State of Illinois and post of Fort Smith, ests of slave-owners, and were designed for the Arkansas, are transferred to this department. security of slave property: they were substan

V. Brigadier and Brevet Major General 0.0. tially parts of the slave code. Howard is assigned to command the department Slavery has been abolished in Virginia ; and, of Louisiana. Until his arrival, the senior offi- therefore, upon the principle that where the reason cer, Brevet Major General J. A. Mower, will com- of the law ceases the law itself ceases, these laws mand according to his brevet of major general. and ordinances have become obsolete. People

VI. The department of Washington will be of color will henceforth enjoy the same personal discontinued and merged in the department of liberty that other citizens and inhabitants enjoy; the East. The records will be sent to the adju- they will be subject to the same restraints and to tant general of the army.

the same punishments for crime that are imposed VII. The first military district will be added on whites, and to no others. to the military division of the Atlantic.

Vagrancy, however, will not be permitted ; VIII. As soon as Major General Thomas is neither whitesnor blacks can be allowed to ready to relinquish command of the department abandon their proper occupations, to desert their of the Cumberland, the department will be dis- families, or roam in idleness about this departcontinued, and the States composing it will be ment; but neither whites nor blacks will be re. added to other departments, to be hereafter strained from seeking employment elsewhere, designated. The records will be forwarded to when they cannot obtain it with just compensathe adjutant general of the army.

tion at their homes, nor from travelling from By command of General Sherman :

place to place on proper and legitimate business. E. D. TOWNSEND,

Until the civil tribunals are re-established, the Assistant Adjutant General. administration of criminal justice must of neces

sity be by military courts. Before such courts HEADQUARTERS OF THE ARMY, the evidence of colored persons will be received ADJUTANT GENERAL'S OFFICE, in all cases.

WASHINGTON, March 31, 1869. By command of Major General A. H. Terry. Special Orders, No. 75.

Ed. W. SMITH, A. A. G Extract.

Official: A. R. S. FOOTE, A. A. G. 16. By direction of the President of the United 1869, February 8-All civil officers, corporaStates, Brevet Major General A. S. Webb, U. S. tions, &c., required to make returns to the legisarmy, is assigned to command the first military lature, ordered to make the same to headquarters. district, according to his brevet of major general,

March 15—The joint resolution respecting the until the arrival of Brevet Major General Canby provisional governments of Virginia and Texas to relieve him. He will accordingly repair to

was promulgated, and all officers unable to take Richmond, Virginia, without delay.

* the test oath removed, to take effect the 18th By command of General Sherman :

instant. E. D. TOWNSEND,

March 18Removal in accordance with above Assistant Adjutant General.

order suspended till the 21st instant.

March 21-General Stoneman submitted his HEADQUARTERS OF THE ARMY,

report, which showed that there were 5,446 offices ADJUTANT GENERAL'S OFFICE,

in the State, 532 of which had been filled by WASHINGTON, April 3, 1869.

General Schofield, 1,972 by General Stoneman, General Orders, No. 29.

329 could take the oath, and 2,613 were unfilled, I. By direction of the President of the United owing to the difficulty in finding men able to States, paragraph VIII of General Orders, No. take the test-oath. 18, of March 16, 1869, is hereby revoked. March 22—The mayor of Richmond asked the

II. Brigadier and Brevet Major General P. St. commanding officer if the appointment of colored G. Cooke, U. S. army, is assigned to the com- policemen would meet his approval, who on the mand of the department of the Cumberland 230 answered that it would, and so would their when it shall be relinquished by Major General appointment to all positions to which they were Thomas.

eligible and for which they were competent. By command of General Sherman:

March 27—General Stoneman took upon himE. D. TOWNSEND, self the duties of governor, removing Governor Assistant Adjutant General. Wells.

March 30–In compliance with Special Order, ORDERS OF THE DISTRICT COMMANDERS.* 75, A. G. O., Brevet Major General A. G. Webb First Military District-Virginia.

assumed command, HEADQUARTERS DEPARTMENT OF VIRGINIA,

April 2-Governor Wells was reinstated.
RICHMOND, VA., June 23, 1869.

April 3-It appearing that the organization of General Order, No.77.

civil government under the reconstruction laws The laws of the State of Virginia and the or- in certain counties proved to be impossible, since

suitable persons to qualify and assume the duties *Continued from p. 325 Hand-Book of Politics for 1868, l of the various offices of this district, under the or p. 65 Political Manual for 1868.

laws of the United States, had not been found, HEADQUARTERS FIRST MILITARY DISTRICT, military officers were again appointed in some

STATE OF VIRGINIA, sections of the State.

RICHMOND, VA., June 26, 1869. April 20–General E. R. S. Canby assumed Mr. B. W. Gillis, Richmond, Va. command.

SIR: I have received your note of the 23d inApril 22--All officers of the provisional gov- stant, and will state in reply to the inquiries ernment ordered to take the test oath.

therein madeMay 7-Orders that “all persons elected or First. That I have uniformly held that memappointed to civil office who have subscribed bers of the general assembly and State officers the oath of office of July 2, 1862, and filed the to be elected on the 6th proximo would be resame with county clerks or with other civil quired to take, before entering upon the duties officers, as required by law, will cause duly cer- of their offices, the oath prescribed by the law tified copies of said oath to be made and filed at of July 2, 1862, unless the constitution should these headquarters, that their ability to qualify first b3 approved by Congress, or the oath be under the joint resolution of Congress passed otherwise dispensed with by law. February 6, 1869, (Public, No. 6,) may be defi Second. That this decision is in conformity nitely ascertained. A failure to send forward with the action heretofore taken upon the same such oath will be an indication that the office is subject in another district, and was based upon vacated under the resolution before cited." a careful consideration of all the laws bearing

May 27-Assigns military commissioners and upon the question now presented. superintendents of registration and election; in The 6th section of the law of March 2, 1867, vests the military commissioners with all the provides " That until the people of the said rebel powers of justices of the peace and police magis- States shall be by law admitted to representatrates, to be “governed in the execution of their tion in the Congress of the United States, any duties by the laws of Virginia, except so far as government which may exist therein shall be those laws may conflict with the laws of the deemed provisional only, and in all respects United States or with the orders issued from subject to the paramount authority of the United these headquarters ;” places at their disposition States to abolish, modify, control, or supersede all peace officers, in addition to troops; makes the same.” The conditions that must precede this it their duty to promptly report to headquarters admission to representation are prescribed by the all cases, and when parties are held for trial, 5th section of the same law, the 5th section of either in confinement or under bail, the cases to the law of March 23, 1867, and the 6th section be so fully reported as to enable the command of the law of April 10, 1869. The same section ing general to decide whether they shall be tried prescribes the qualifications of voters in all by a military commission or a civil court; de- élections to office, and the qualifications (eligibilclares that the powers herein conferred upon ity) of officers under such provisional governmilitary commissioners are not to be construed ments. The supplementary law of March 23, as extending to the inhabitants in their ordinary, 1867, modified the qualifications of voters by personal relations, but to the end that United prescribing registration and determining the conStates laws be duly executed and full protection ditions essential to registration, and the amendgiven to all parties in their rights of person and atory law of March 13, 1868, section 2, applied property, and that they will only be exercised the same qualifications (registered voters) to the where the civil authorities refuse or fail to act, voters for members of the House of Representaor exact and impartial justice from the civil tives of the United States, and all elective offices courts cannot be secured; all persons required provided for by those constitutions, at the electo obey and execute all lawful orders of the mili- tions to be held upon the questions of ratifying tary commissioners. Civil officers not relieved or rejecting the proposed constitutions, and the from duty-this order being intended to aid and 9th section of the law of July 19, 1867, imnot supersede them-except in cases of necessity. poses an additional qualification upon the offi. The superintendents of registration and election cers, by requiring that they shall take the oath districts are invested with similar but subordi- of office prescribed by the law of July 2, 1862. nate powers to those of military commissioners, Under the original law of March 2, 1867, (secto or through whom they must report.

tion 5,) it was in the power of the district comJune 29—The stay of executions against per-mander to prescribe an oath of office, conforming sonal property extended until January 1, 1870: to the conditions of eligibility prescribed by that Provided, That between January 1 and August section, and this in fact was done by several of 1, 1869, the debtor shall have paid one year's the district commanders in this district by interest upon the principal sum due.

General Orders, No. 9, of April 5, 1867; and June 30—To guard against fraud, two ballot- these oaths continued in force until they were boxes at each polling place: one to receive bal- superseded by the oathi required by the law of lots for or against the constitution as a whole, the July 19, 1867. That law placed the subject beother, for or against the separate clauses to be yond the discretion and control of the district voted on; a committee of not more than three commander, and he cannot now prescribe or persons from each political party to witness bal- adopt any different oath without disregarding lot counting, but none save sworn election officers or annulling a positive and controlling law. I to examine or handle poll-lists, ballot-boxes, or have heretofore held, and do now hold, that the ballots.

approval by Congress of any proposed constitu

tion makes it a part of the reconstruction laws, In justification of his test-oath order, General and, to the extent that Congress directs, or auCanby wrote the following letter :

thorizes any action under it in advance of the

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