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BOSTON: J O H N L. SH O REY,

13 WASHINGTON STREET.

18 64.

158
1.37

MILITARY GOVERNMENT +

OF

HOSTILE TERRITORY

IN TIME OF WAR.

BY

WILLIAM WHITING.

BOSTON:
J O Η Ν L. S H O R E Y,

13 WASHINGTON STREET.

1864.

Entered according to Act of Congress, in the year 1864, by

WILLIAM WHITING, in the Clerk's Office of the District Court of the District of Massachusetts.

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WASHINGTON, December 24, 1863. HON. E. M. STANTON.

SIR: Enclosed I send you a copy of my bill, now before the Select Committee on the Rebellious States. As the provisions of this bill relate to the military occupation of the district in rebellion, the control of it, in my judgment, should be committed to the War Department. I will thank you for any suggestions you may have to make; or, if you have not time, I would like to have the bill submitted to the Solicitor of the War Department for his opinion. Truly your friend, (Signed,)

J. M. ASHLEY.

WAR DEPARTMENT, SOLICITOR'S OFFICE,

WASHINGTON, D. C., March 24, 1864.

HON. J. M. ASHLEY.

SIR: Your letter of the 24th of December to the Secretary of War, of which I enclose you a copy, was referred by the Secretary to me at the time of its receipt. Other duties have prevented an earlier answer.

The provisions of your proposed statute involve the consideration of several questions of belligerent and of constitutional law, and among them are the following, viz.:

The right of Congress (as claimed in the 1st section) to authorize the President to establish and maintain over the insurrectionary districts such provisional or military government as he may designate, and to continue it in force until new republican state governments shall be formed therein, in accordance with certain rules and regulations prescribed in the act therefor;

The legal authority of a government so constituted to administer not only military, but civil, criminal, and municipal laws, such as may be approved of by Congress;

The right of Congress to alter the former laws of the States, to adopt and require the enforcement of some, and the rejection of others;

The authority to administer military and martial laws, or the laws of war, and mili. tary orders and proclamations; The

power, constitutionally, to hold the people of a conquered district subject to military government, controlled, not by the war-power of the President, but by the legislative power of Congress acting through the President;

The question as to what laws are in force ipso vigore over the insurrectionary districts, flagrante bello, and what laws extend over the same as they are successively subdued by our arms;

The question as to the rights of citizens in rebellious states under the Constitution, as the war advances, and who can and who cannot be treated as public enemies therein:

These, and a great variety of similar questions, the answer to which lies at the foundation of the plan proposed in your bill, deserve a far more labored investigation than I have been able to give them; but I hope that some suggestions may be found in the following pages which may prove not unworthy of your consideration. Very respectfully, your obedient servant,

WILLIAM WHITING.

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