commission of any particular offense against order and discipline; but a recourse to the exercise of this part of his authority is to be limited to the necessity of the case. When the prevalent and continual commission of any particular offense may call for an immediate example the duties and powers of a provost-marshal are defined in the Articles of War, and the provost-marshal in making his rounds will be authorized to execute immediately and in its greatest rigor the awful punishment which the military law awards against plundering and marauding against "all such as are detected by him in the fact."
It is important to note, because there is a general misconception on the subject, that it is a misapplication of terms to speak of a general "commanding a district or department." Generals of all grades command nothing but the troops in the district or department. They do not and cannot command the people of it. If they did, they would be the civil and military governors of the district or State, and the State would thus be reduced to the condition of a Territory, and the officers would occupy the same position precisely, with just as much or little right, as the military governors appointed by Lincoln for Arkansas, Florida, and Texas. They have no powers except military powers; they can have no other. When they appoint provost-marshals to act as civil or criminal magistrates they usurp the powers of a provost-marshal cannot extend beyond the army, its followers, and retainers. It is especially illegal to establish, or authorize them to establish, a tariff of prices to govern in sales and purchases between individuals; to direct that a particular currency shall be received in payment for goods or provisions sold by private citizen to private citizen, or to compel men to receive such currency in payment of existing debts. It is not in the power even of Congress to do, or authorize to be done, any one of these things. All appointments of provost-marshals who are to exercise their functions entirely outside of the army are absolutely null and void. they are the creating of offices and officers unknown to the Constitution and laws, and the orders appointing them will be utterly worthless when pleaded in bar before the courts to indictments or in actions of trespass for acts committed under color of such authority and in violation of the rights of persons or of property. Persons acting under such appointments can, as the Vice-President has forcibly said, rightfully exercise no more power, except in respect to the army, its retainers, and followers, than if the appointments had been made by a street-walker. I do not know where we could successfully look for a prototype of such provost-marshals-general as have been installed in some jurisdictions, unless to that officer under Louis XI of France who rode with a coil of rope at his saddle-bow to execute speedy vengeance on Bohemians and other offenders. The Seminole people are under the protection of the Confederate States, but they are so by virtue of a treaty, which, next to the Constitution, is the supreme law of the land, and they still remain a free people, not our subjects, but only our wards. The only troops in their country are their own troops, and for them the commanding officer of the battalion can appoint a provost-marshal. That provost-marshal will be his officer, not mine. I do not conceive that I have any power to appoint any such officer in or for that country, and if I did I could certainly not arm him with any-power to take possession of property of disloyal Seminoles, since such property is subject to be confiscated by the nation alone, and trust be dealt with solely by the authorities of the nation.
I am, very respectfully, yours,