the warden for their detention I beg leave to call your attention to the acts of Congress and the regulations for the government of the Army of the 10th of August last upon the subject, not referred to in your several opinions, believing that probably upon further consideration you ma incline to modify them.
The seventh section of the act of March 2, 1855, specifies eight modes of punishment to be inflicted by summary naval courts-martial, and the tenth section declares that the punishment authorized by this act to be inflicted by a summary court-martial may likewise be inflicted by any general court-martial, but this act does not limit the powers of a general naval court-martial; such courts are left to sentence the accused to suffer such punishments as the court may in its discretion adjudge. There is then no limit to the punishment, and the only chance of review the accused has is the consideration of the proper official whose sanction by the statute is requisite preliminary to the execution of the sentence. The statute regulating punishments to be inflicted by naval courts-martial, with the exception of the act of March 2, 1855, vests the whole subject in the court, and it having been adjudged (there being no law to the contrary) that the delinquent may be confined in the penitentiary and subject to the discipline of that institution the power of naval courts-martial must be conceded. But the statute controlling the discipline of the Army does not it is believed permit such punishment.
The Army Regulations approved by the President August 10, 1861, page 126, paragraph 895, declares what the legal punishmet of soldiers sentenced by courts-martial shall be, viz: "Death, confinement, confinement on bread and water diet, solitary confinement, hard labor, ball and chain, forfeiture of pay and allowances, discharges from service and reprimands. " With some limitations as to the manner and extent of inflicting the punishments allowed the foregoing catalogue embraces, it is supposed, all the forms in which soldiers can be punished, and is that punishment intended by the second section of article 1, page 9, Revised United States Army Regulations, which declares that "puninshments shall be strictly comformable to military law. "
The eleventh section of the act of March 3, 1829 (U. S. Statutes at Large, vol 4, 365), prescribes the punishment of a convict in the penitentiary. There he is to be confined 'singly in a separate cell at night," all conversation is borbidden without the presence of an officer, his labor is to be of "the hardest and most servile kind," and he shall "be made to labor diligently, in silence, and with stict obedience," all of which is not allowed to be inflicted by military law. In addition to all this he suffers an abasement and degradation which no time can efface, and to some persons more dreadful than any punishmet in the catalogue.
Macomb says that for desertion they are "often adjudged to serve at hard labor in the fotifications; " he says nothing which will justify the inference that soldiers may be imprisoned in the penitentiary.
The punishment in the Navy, bot in Great Britain and in the United States, have always been much more severe thatn in the Army. In Great Britain persons convicted by either naval or military courts-martial are confined in jails and houses of correction by express statutes which have existed many years, consequently no question could have arisen there upon the legality of thepunishemtn in the jails or houses of correction. There such punishments might be awarded as were known to the common law, or were according to the custom of war in like cases, and Blackstone says, vol. 1, page 137 (it being in violation of the