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WAR DEPARTMENT, Richmond, September 19, 1862.

Brig. Gen. JOHN H. WINDER, Richmond, Va.

GENERAL: You will dispose of the below-named prisoners as follows: , David W. Sherman, to be discharged on taking the oath of alieiance; 2, Reuben Sherman, to be discharged on taking the oath of llegiance; 3, H. T. Sherman, to be discharged; 4, A. Asbrick, to be held is a citizen prisoner; 5, A. Ambrech, to be held as a citizen prisoner; i, John Bryant, to be held as a citizen prisoner; 7, John Beltzhoover, o be held as a citizen prisoner; 8, Isaac Brown, to be held as a itizen prisoner; 9, A. Taylor, to be discharged and furnished transportation home if he takes the oath of allegiance; 10, I. Ingram, to be out in a hospital; 11, William Holcombe, to be held as a citizen prisoner; 12, T. Holcombe, to be held as a citizen prisoner; 13, L. B. Payne, to be held as a citizen prisoner, but to be permitted to work at his trade under parole; 14, F. Stemlaugh, to be held as a citizen prisoner; 15, D. May, to be held as a citizen prisoner; 16, William Hines, to be discharged.

Very respectfully, your obedient servant,

GEO. W. RANDOLPH,

Secretary of War.

WAR DEPARTMENT, Richmond, September 19, 1862.

ROBERT OULD, Esq.

DEAR SIR: The return prisoners at Vicksburg are urgently needed for immediate service. Are they all exchanged, and if not when will the exchange be completed?

Very respectfully, your obedient servant,

GEO. W. RANDOLPH,

Secretary of War.

WELDON, N. C., September 21, 1862.

General WINDER, Commanding District, Richmond, Va.

GENERAL: I send under guard in charge of Sergeant Epting a prisoner named James Smith, who states that he is stove molder by profession; supposed to be a deserter from the army-a spy or a bridgeburner, judging from appearances, conduct and contradictory statements. He appears to be well informed of the position of our armies, well acquainted with the locality of Richmond, and the fact of his having been loitering in this neighborhood for some time past creates the impression that he is a bridge-burner. He is of an age subject to conscription. Taking into consideration his conflicting statements, conduct, &c., I believe him not to be right. I therefore send him to you for further examination.

I am, respectfully, general, your most obedient servant,
JOEL R. GRIFFIN,
Lieutenant-Colonel, Commanding Post at Weldon, N. C.

WAR DEPARTMENT, Richmond, September 22, 1862.

His Excellency JEFFERSON DAVIS,

President Confederate States of America.

SIR: In response to the resolution of the House of Representatives inquiring what disposition is made of negroes captured by the Army,

I have the honor to say that the Department has not been informed of the capture of any slaves by our armies. Very respectfully, your obedient servant,

GEO. W. RANDOLPH,

Secretary of War.

Brig. Gen. L. TILGHMAN:

RICHMOND, September 22, 1862.

Ten thousand three hundred and sixty-eight non-commissioned officers and privates are exchanged. In arriving at this number one noncommissioned officer must be counted as two privates. In addition to this all commissioned officers are exchanged who have been delivered up to this date. The exchange will be completed as to the remainder on Saturday next.

GEO. W. RANDOLPH,

Secretary of War.

HEADQUARTERS ARMY OF KENTUCKY,
Lexington, Ky., September 22, 1862.

Brig. Gen. D. LEADBETTER.

GENERAL: Information has been received at these headquarters that there are quite a number of home-guards in the neighborhood of Georgetown. The major-general commanding directs that you take immediate steps to have their arms brought in and the men paroled. Very respectfully, your obedient servant,

H. P. PRATT, Lieutenant and Acting Assistant Adjutant-General.

DISTRICT OF THE MISSISSIPPI,
PROVOST-MARSHAL-GENERAL'S OFFICE,

Jackson, Miss., September 22, 1862.

Brig. Gen. DANIEL RUGGLES, Commanding District.

GENERAL: In obedience to your instructions I have given such attention as my limited time and inability to procure authorities on the subject would permit to the question

Whether a citizen of the Confederate States not belonging to the Army or Navy or to the militia in actual service can be tried by a military court upon the charge of being a spy for the enemy?

The Constitution of the Confederate States, Article 1, section 9, paragraph 16, provides that—

No person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia when in actual service in time of war or public danger; nor shall any person be deprived of life, liberty or property with

out due process of law.

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It will be seen that this paragraph provides for a state of war as well as peace and restricts the jurisdiction of all tribunals not proceeding by the ordinary form of indictment or presentment to the three enumerated classes.

But it has been said that those articles of war which prescribe the penalty for holding intercourse with the enemy, relieving his wants or giving him information are so comprehensive in their terms as to

embrace all persons to whatever class they may belong, and that these articles form part of an act of Congress the constitutionality of which is not a proper question for the decision of those whose duty it is to obey the law. A more careful examination of these articles will relieve us of the necessity of inquiring how far obedience is due to an unconstitutional law, for I think it will appear that they are not in the least repugnant to the Constitution. The language of the Fifty-seventh Article of War, which is relied on as giving authority to military courts to try and punish this class of offenders, is:

Whosoever shall be convicted of holding correspondence with or giving intelligence to the enemy, either directly or indirectly, shall suffer death or such other punishment as shall be ordered by the sentence of a court-martial.

However comprehensive the term "whosoever" may at first glance appear, it should be recollected that penal statutes and those which are in derogation of common right must be strictly construed and cannot be enlarged by implication. It is also a well-settled rule of interpretation that all laws must be construed with reference to their subjectmatter and the object the Legislature had in view in their enactment.

The title of the act of which the Articles of War form a part is "An act for establishing rules and articles for the government of the armies of the Confederate States," and the first paragraph of the first section is in the following words:

That from and after the passage of this act the following shall be the rules and articles by which the armies of the Confederate States shall be governed:

Here the Legislature has given an explicit declaration of the object for which the law was enacted and clearly marked the class of persons upon whom it was intended to have effect. Every word in the act, therefore, must be construed with reference to this declaration and be limited by it, however general or comprehensive it may at first appear to be. The word "whosoever," then, in Article 57, must be construed to mean whosoever belonging to the armies of the Confederate States. Indeed, the connection in which this article stands would justify such a E construction, apart from the considerations already mentioned, for in Article 55 this limitation is made in express terms. It reads as follows: Whosoever belonging to the armies of the Confederate States in foreign parts shall force a safeguard shall suffer death.

Article 56 provides that "whosoever shall relieve the enemy with money, victuals," &c., and then follows Article 57, already quoted. The connection in which these three articles stand warrants the conclusion that they are intended to apply to the same class of persons and that the words "belonging to the armies of the Confederate States" were omitted in the last two merely to avoid tautology.

Again, in different articles the persons who are subjected to military law are enumerated in detail; for example, we find provision made for the trial and punishment of "all officers," "all non-commissioned officers and soldiers." In Article 60 it is provided that

All sutlers and retainers to the camp and all persons whatsoever serving with the armies of the Confederate States in the field, though not enlisted soldiers, are to be subject to orders according to the rules and discipline of war.

Article 96 provides that

All officers, conductors, gunners, matrosses, drivers or other persons whatsoever receiving pay or hire in the service of the artillery or Corps of Engineers of the Confederate States shall be governed by the aforesaid rules and articles, &c.

And Article 97 makes the same provision in relation to the militia when in actual service of the Confederate States.

Thus it will be seen that Congress has first by express declaration restricted the operation of these articles to the armies of the Confederate States, and that to prevent all possibility of mistake it has clearly enumerated the persons who are to be regarded as composing these armies. It may be conceded that Congress has the constitutional power to confer upon courts-martial the right to try and punish any offense "not capital or otherwise infamous," though committed by a civilian, but I think a careful examination of all the Articles of War with reference to their object and in their proper connection cannot fail to lead to the conviction that they have not chosen to do so, except in a single instance, and in this instance it was so obviously necessary for the proper trial and punishment of military persons that it may properly be classed as one of the rules for the government of the Army. I allude to that article which gives to courts-martial the power of maintaining order and punishing those who interrupt their proceedings. And it is worthy of remark how much more emphatic and comprehensive the language here used is than that of Article 57. There the word used is "whosoever," but the article to which I refer (Article 76) reads as follows:

No person whatsoever shall use any insulting words, signs or gestures in presence of a court-martial, &c.

But that the Articles of War, and particularly the one providing for the punishment of spies, were not intended to apply to civilians is placed beyond all doubt by a reference to the second section of the act of which these articles form a part. This section reads as follows:

That in time of war all persons not citizens of or owing allegiance to the Confederate States of America who shall be found lurking as spies in and about the fortifications or encampments of the armies of the Confederate States, or any of them. shall suffer death according to the law and usage of nations by sentence of a general court-martial.

Here we have an explicit declaration that the power of a court-martial to try and punish the very offense in question is restricted to those "not citizens." I conclude therefore that as a spy is guilty of a "capital or otherwise infamous crime," a civilian charged with this offense can only be tried "upon a presentment or indictment of a grand jury,” and that military courts have no jurisdiction to try civilians for any offenses except those enumerated in Article 76.

And I respectfully recommend that all persons not belonging to the Army or Navy or to the militia in actual service now held in military custody be immediately delivered to the civil authorities, and that all military officers and provost-marshals be instructed to make no more arrests of citizens unless upon a warrant issued by a magistrate, except in urgent cases where there is danger of escape, and in such cases that they be instructed immediately to take the party before a justice of the peace or other civil magistrate to be dealt with according to law.

It may not be improper for me to state that I entered upon the examination of this subject with a very different opinion from the one here expressed. The recent decision of one of the judges of the supreme court of this State in the case of Burlingame I confess startled me, and as the learned judge did not favor the public with the law on which he based his conclusions or the process of reasoning by which he arrived at them I at first regarded the position taken by him in reference to spies as altogether novel and wholly untenable. Never having investi gated the subject and knowing the inconvenience and even danger to the country which might result from the want of prompt means for the punishment of this most dangerous class of enemies, I was not pre

pared to believe that a government born in the midst of revolution and war had left the punishment of this class of traitors exclusively to the slow and uncertain process of the civil tribunals; but such seems clearly to have been the case, and however great the evil it is not one which the military authorities can remedy.

Very respectfully,

JAMES O. FUQUA, Judge Advocate and Provost-Marshal-General.

HEADQUARTERS ARMY OF NORTHERN VIRGINIA,

General S. COOPER,

September 23, 1862.

Adjutant and Inspector General 2. S. Army, Richmond, Va. GENERAL: Herewith please find list* of paroled prisoners taken by the Yankees, being stragglers and some few captured in battle. The services of every man being greatly needed, General Lee is most anxious that all prisoners should be relieved by exchange as soon as pos-· sible in order that our ranks may be increased. These prisoners have been sent back to Winchester with orders there to wait exchange. I am, sir, respectfully, your obedient servant,

[R. H. CHILTON,] Assistant Adjutant-General.

HEADQUARTERS DEPARTMENT OF EAST TENNESSEE,
Knoxville, September 23, 1862.

Col. JOHN B. PALMER:

Your dispatch of this morning has been laid before the major-general commanding, who directs me to say that you will forward the prisoners at once in accordance to General Stevenson's instructions. You will make no distinction between those from East Tennessee and the Northern States when the former are prisoners of war taken in arms against us. Union men who are willing to renounce their opinions and join the Army will of course be permitted to do so, but they are not simply paroled and allowed to remain in East Tennessee real enemies, but only restrained by their parole from acts of open hostility. Those not for us are against us and must be so treated. The Indians may be used to advantage in the manner proposed should similar outrages At this time there is an extraordinary demand for wagons. Teams can probably be furnished you if you can procure the wagons from the surrounding country. An arrangement will be made in regard to the artillery as soon as practicable. Very respectfully, your obedient servant,

occur.

CHAS. S. STRINGFELLOW,
Assistant Adjutant-General.

JACKSON, MISS., September 23, 1862.

Mr. DAVIS :

I reached here the day before yesterday and will leave to-morrow for my command. I was taken prisoner at Lebanon on the 5th of May and

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