Part 27 (1/2)
”III. It is desirable that the military power conferred by the before-mentioned act be exercised only so far as may be necessary to accomplish the objects for which that power was conferred, and the undersigned appeals to the people of Virginia, and especially to magistrates and other civil officers, to render the necessity for the exercise of this power as slight as possible, by strict obedience to the laws, and by impartial administration of justice to all cla.s.ses... .”
On April 20 was issued ”General Orders, No. 16”:
”I. Temporary appointments to fill vacancies which may occur in county or city offices will, in general, be made upon the concurrent recommendations of the County Court or City Council and of the President of the Board of Registration ( 1) for the county or city.
”II. The several County Courts and City Councils are requested to confer with the Presidents of the Boards of Registration concerning such appointments, and to agree upon a suitable person to fill any vacancy that may occur.
”III. The President of the Board of Registration will forward to the a.s.sistant adjutant-general the recommendation of the court or council, with his own indors.e.m.e.nt thereon.
”IV. When a County Court is not in session, a recommendation signed by five justices, including the presiding justice, will be received in lieu of the recommendation of the court.
”V. County and corporation officers appointed by the commanding general will be required to give the bonds required by law, and will be subject to indictment for malfeasance, misfeasance, or neglect of official duty, the same as if they had been elected by the people.”
On May 28 was issued ”General Orders, No. 31,” in part as follows;
”... IV. The military commissioners [officers of the army] will make a prompt report to these headquarters of each case of which they may take jurisdiction, and the disposition made of such case. Where parties are held for trial, either in confinement or under bail, such full statement will be made of the facts in each case as will enable the commanding general to decide whether the case shall be tried by a military commission or be brought before a civil court.
”V. Trial by the civil court will be preferred in all cases where there is satisfactory reason to believe that justice will be done. But until the orders of the commanding general are made known in any case, the paramount jurisdiction a.s.sumed by the military commissioner will be exclusive.
”VI. All persons, civil officers and others, are required to obey and execute the lawful orders of the military commissioners to the same extent as they are required by law to obey and execute writs issued by civil magistrates. Any person who shall disobey or resist the lawful orders or authority of a military commissioner shall be tried by a military commission, and upon conviction shall be punished by fine and imprisonment according to the nature and degree of the offense... .
”VII. This order will not be construed to excuse civil officers, in any degree, from the faithful discharge of their duties. It is intended to aid the civil authorities, and not to supersede them, except in cases of necessity.”
NO RESORT TO TRIAL BY MILITARY COMMISSION
No case arose in Virginia in which it was found necessary, in my opinion, to supersede the civil authorities in the administration of justice. Not a single citizen of that State was tried by military commission. Yet some cases arose which well ill.u.s.trate the fascinations of absolute power to those who desire the benefit of its exercise in its own interests. Some of the most prominent citizens of Virginia, men who had earnestly opposed the general policy of military government then in force, came to me to settle their petty differences summarily. They seemed much disappointed when I declined to adjudicate such cases, and informed them that they must be content with the slow process of trial before their own civil magistrates. Other orders were in part as follows:
”Richmond, Va., July 26, 1867. ”... III. The governor and other executive officers, the courts of law, and councils of cities are invited to recommend suitable persons for appointment to such offices as, under the existing laws of Virginia, are usually filled by their appointment or upon their nomination... .”
”Richmond, Va., August 8, 1867. ”... VI. Military commissioners are reminded that they are to be 'governed in the discharge of their duties by the laws of Virginia, so far as the same are not in conflict with the laws of the United States, or orders issued from these headquarters,' and that they are not to supersede the civil authorities, except in cases of necessity. In such cases the action, or failure to act, of the civil officers should be fully reported, in order that the commanding general may hold them to a proper accountability for any neglect of duty... .”
THE OBNOXIOUS CONSt.i.tUTION
Upon the adjournment of the State Convention, I sent the following letter to General Grant:
”Richmond, Va., April 18, 1868. ”Dear General: In spite of every effort that could be made to prevent it, the Virginia Convention has adhered to its proscriptive measures, or rather to the most objectionable of them.
”After every other means had failed, I even went so far as to visit the Convention, and urge the repeal of the test oath. But what I said seemed not to have the slightest influence. I inclose a newspaper report, which is a pretty accurate one, of what I said, and which will show that I have at least done my duty in that regard, if not more.
”The same baneful influence that secured the election of a majority of ignorant blacks, and equally ignorant or unprincipled whites, to the Convention, has proved sufficient to hold them firmly to their original purpose. They could only hope to obtain office by disqualifying everybody in the State who is capable of discharging official duties, and all else to them was of comparatively slight influence. Even the question whether their Const.i.tution will be ratified or rejected, the treat with indifference. Congress, they say, will make it right anyway... .
”Of course I may be mistaken, but my opinion is that the Const.i.tution must be adopted. This would not be a serious matter if it (the Const.i.tution) were a good one, and good officers could be elected under it. But it seems hardly possible that the Union party can organize upon a satisfactory basis for the election. The negroes and their a.s.sociates will doubtless insist upon unqualified indors.e.m.e.nt of the Const.i.tution by their nominees. This the respectable whites will not give. Hence the late Convention will be reproduced in the legislature, a large majority being either worthless radicals, white and black, or bitter opponents of reconstruction upon the congressional plan. The danger is that we will have on our hands, not only one big elephant in the Const.i.tution, but a host of little ones in the shape of officers-elect who are not fit to be installed-a prospect not very encouraging, at least.
”My impression is that the wisest course would be to let the thing fall and die where it is-not submit it to the people at all. We can then go on putting Union men in office and reorganizing the provisional government upon a loyal basis, until the friends of reconstruction get control of the State. Then a convention can be called which will frame a Const.i.tution fit to be ratified by the people of the State and approved by Congress and the country at large.
”If Congress would give a little more lat.i.tude in the selection of officers, by modifying the test oath, there would be no difficulty in filling all the offices in the State with men who would aid restoration. Without some such change, the work of reorganization cannot be carried very far. The view of the question which I have given above is, of course, the local one; but it seems to me the national one leads to the same conclusion. I can't see how the indors.e.m.e.nt of such a Const.i.tution as this one, by the Republican party, can be otherwise than damaging to them in the North. Would it not be wise for Congress to say at once, We reject, once and for all, proscriptive const.i.tutions?
”I have written this letter merely to suggest points that occur to me as worthy of very careful consideration. I suppose Congress alone can determine what is to be done.
”As explained in my official letter to-day, I feel bound to await the action of Congress before ordering an election. The nominating conventions of the two parties meet in Richmond on the 6th and 7th of May. Perhaps it may be best for Congress to await their action before determining the question... . ”