Do the decisions of the Supreme Court in the cases cited in 18 and 20 Howard authorize a court-martial to condemn a soldier to the penitentiary for any offense not punishable by death, an donly to be justified as a mitigation of the punishment, and must not the imprisonment be ordered and approved by the President or Secretary?
It is believed that in many instances excellent youths have been condemned by regimental courts-martial and are now suffering a loathsome imprisonment with common felons waiting the caprice of the colonel to liberate them. If it is not clearly the law it ought not to be tolerated.
Have the colonels of regiments the power to commit to the penitentiary and pardon the convict out?
Very respectfully, your obedient servant,
CALEB B. SMITH, Secretary.
[Inclosure Numbers 4.]
ATTORNEY-GENERAL'S OFFICE, May 8, 1862.
Honorable C. B. SMITH, Secretary of the Interior.
SIR: That courts-martial in cases within their lawful jurisdiction may condemn persons to imprisonment at hard labor in the penitentiary of the District of Columbia in punishment of crime is too well settled to be now open to question.
And the power of such courts to impose that punishment is derived not from the decisions of the Supreme Court referred to in your letter of the 2nd instant but from the act of Congress which declares the purposes to which the penitentiary of the District shall be devoted and the acts which confer the jurisdiction and define the powers of courts-martial.
The first section of the act of March 3, 1829 (4 Stat., 365), enacts that the penitentiary of the District of Columbia 'shall be exclusively appropriated to be confining such persons as may be convicted of offenses which now are or may hereafter be punishable with imprisonmnt and labor under the laws of the United States or of the District of Columbia. " The right of Congress to declare it the receptacle of persons convicted under the laws of the United States will hardly be questioned in view of the fact that this penitentiary was built and is supported with the money of the United States and is as much under the control and direction of the National Government as is the Capitol or the Treasury building.
Nothing in the language of the act of 1829 justifies the inference that Congress meant to prohibit the confinement of offenders convicted and sentenced by courts-martial in the penitentiary of the District. True it is restricted to the confinement of those who may be convicted of offenses punishable with imprisonment at hard labor under the laws named.
But courts-martial have power in many cases under the laws of the United States to inflict this punishment, in illustration of which I refer you to Dynes v. Hoover (20 How., 65), Crowell's case (manuscript opinion of Attorney-General Black, September 2, 1857) an an opinon of my own I Toombs' case, furnished to the Secretary of the Navy on the 8th of November last. As I had occasion in that opinion to examine the question of the power of a court-martial to sentence a marine in the service of the United States to imprisnment at hard labor for a term of years in the penitentiary of the District of the Columbia I take the liberty to inclose you a copy of it herewith. although in these cases