the main question was of the power of the courts-martial to punish by imprisonment at hard labor in the penitentiary at all, yet the incidental question of the legality of such punishment by imprisonment in the penitentiary of the District of Columbia was also involved, for the legality of that form of punishment under the laws of the United States being established the right to use the penitentiary of the District under the terms of the act of 1829, designating the class of persons who might be confined therein, necessarilo followed. And in point of fact in all the cases I have cited the persons under sentence were confined in that penitentiary.
It is not necessary in all cases that the sentence of the court-martial imposing the punishment in question should be approved by the President.
The Articles of War prescribe certain cases even where the punishment of death is not pronounced where the sentence must receive the President's approval before it can be executed, but except in these cases I am aware of no rule which requires the special intervention of the President to authorize the admission into the penitentiary of the District of a prisoner lawfully convicted and sentenced thereto by a court-martial with the approval of the proper authority under the Articles of War.
I am, sir, very respectfully, your obedient servant,
ATTORNEY-GENERAL'S OFFICE, November 8, 1861.
Honorable GIDEON WELLES, Secretary of the Navy.
SIR: I have the honor to acknowledge the receipt of your letter of the 4th instant relative to the case of Corpl. William Toombs, of the Marine Corps. It appears that at a marine general court-martial, convened by order of the Navy Department, he was tried under article 12 of section 1 of the act of April 23, 1800 (2 Stat., 45), for the better government of the Navy, upon the charge of endeavoring to corrupt two privates belonging to a marine guard on board a steamer conveying state prisoners to Fort Lafayette by offering them a large pecunicary reward if they would assist him in effecting the escape of certain of the prisoners, and that the court found him guilty of the charge and sentenced him to be imprisoned for a term of years at hard labor in the penitentiary of the District of Columbia. Under these circumstances you have done me the honor to submit for my consideration certain papers on the subject and to request my opinion as to the legality of the sentence.
As you have not deemed it necessary to furnish me with a copy of the record of the proceedings of the court-martial in this case, and as I understand your question to refer to the legality of the sentence in respect to the single objection urged against it in the accompanying papers I shall proceed to consider that point only, abstaining from any expression of opinion as to the legality of the sentence in any other respect.
The objection to the sentence of the court-martial in this case is that the punishment of imprisonment in the penitentiary for a term of years at hard labor is contrary to the usages of the service and is therefore illegal.
The twelfth article of the Rules for the Government of the Navy, under which this sentence was pronounced, declares that 'spies and
40 R R-SERIES II, VOL III