Moreover if he may be thus confined he will be subject to such punishment as the warden in his discretion may inflict under the law.
It is sufficient to say that in no respect is it conformable to military law and it is surprising that it should ever have been supposed that a court-martial would condemn a soldier to the penitentiary.
The penitentiary was to be appropriated exclusively to the confining of persons convicts and those punishable with imprisonment and labor, and I think all must agree that the conviction contemplated must be in a civil and not military court.
I do not think the warden has any authority over the persons convicted by a court-martial or that such court has any power to condemn a soldier to the penitentiary.
Very respectfully, your obedient servant,
J. P. USHER,
[Inclosure Numbers 2.]
WAR DEPARTMENT, Washington, April 30, 1862.
Honorable C. B. SMITH, Secretary of the Interior.
SIR: The Secretary of War directs me to acknowledge the receipt of your letter of the 11th instant transmitting an adverse opinion of the Assistant Secretary of the Interior as to the legality of plaicng in confinement military prisoners under sentence by court-martial in the penitentiary, and to state that it was referred to the Judge-Advocate of the Army for a report on the subject.
That officer states that 'some of these prisoners are in the penitentiary by the sentence of a court-martial, others by commutation or mitigation by the President of the sentence of death adjudged by court-martial in the nature of a pardon or condition.
"In either case the authority for the commitment rests on the decision of the Supreme Court of the United States.
"In ex parte William Wells, December term, 1855 (307, 18 Howard), the Supreme Court decided that the President may order imprisonment in the penitentiary for life in case of sentence of death.
"M. Dynes v. Hoover (20 HOward) the court decided that courts-martial may lawfully adjudge sentence of confinement in the penitentiary.
I understant but have not seen it that there is a recent opinion in the matter by the Attorney-General against the power of a court-martial. "
I have the honor to be, your obedient servant,
P. H. WATSON,
Assistant Secretary of War.
[Inclosure Numbers 3.]
DEPARTMENT OF THE INTERIOR,
Washington, May 2, 1862.
Honorable EDWARD BATES,
Attorney-General of the United States.
SIR: This Department on the 11th ultimo addressed a communication to the honorable Secretary of War respecting the confinement of soldiers convicted by courts-martial in the penitentiary of the District of Columbia, and to-day has received a reply* a copy of which is inclosed herewith.
The correspondence is tranmitted to you for your opinion which has already been formed, as intimated by the honorable Assistant Secretary.
* Omitted here; see preceding.