War of the Rebellion: Serial 116 Page 0628 PRISONERS OF WAR AND STATE, ETC.

Search Civil War Official Records

statutes has not been inserted in our laws, the only limitation of that kind being on the punishment of imprisonment inflicted by summary courts-martial under the act of March 2, 1855. (10 Stat., 627.)

But whether these British law officers meant to pronounce the sentence of imprisonment at hard labor unusual and illegal during the last century or not, it is certain that the records of both naval and military courts-martial in England since that time show it to be one of the most frequent and usual methods of punishing offenses of a grade similar to that of which the prisoner in this case is convicted.

In the abstract of the proceedings of English naval courts-martial contained in Hickman (p. 210) I find six cases where the sentence pronounced was imprisonment at hard labor and several where the sentence was solitary confinement. The offenses for which these punishments were inflicted were desertion, mutiny and other offenses placed by the act of 22 Geo. II, c. 33, in the same grade as that in which the offense of Toombs is ranked by the act of Congress of 1800.

Imprisonment with or without hard labor is one of the punishments imposed by the British mutiny act, and General Macomb, an American authority of weight, declares the usual inferior punishment of a soldier to be imprisonment, solitary or otherwise, hard labor and stoppage of pay. (Courts-mar., sec. 142.)

It thus appears that punishment by imprisonment at hard labor for offenses like that of which the prisoner is convicted is sanctioned by usage and authority in England and America and has become one of the most frequent methods of vindicating the rules of the naval and military service.

I am therefore of opinion that the sentence pronounced by the court-martial against Corpl. William Toombs is free from the objection urged against it in the papers you have submitted to me and that nothing therein contained affords any reason why that sentence should not be confirmed.

I am, sir, very respectfully, your obedient servant,



[Inclosure Numbers 5.]


Washington, May 14, 1862.


Attorney-General of the United States.

SIR: I have the honor to acknowledge the receipt of your communication of the 8th instnat, wherein you express the opinion "that courts-martial in cases within their lawful jurisdiction may condemn persons to imprisonment at hard labor in the epenitentiary of the District of Columbia in punishment of crime is too well settled to be now an open question. "

This opinion is supported by an elaborate opinion of yours of the 8th of November last furnished the honorable Secretary of the Navy. Until this expression of the latater opinion of yours the subject had only been discussed and in an authoritative form adjudicated in respect to the powers of naval courts-martial.

With great respect for the learned opinions of yourself above referred to, yet in consideration of the many individuals now confined in the penitentiary under sentences of courts-martial, the great impropriety thereof if without authority of law and the possible liability of