The War of the Rebellion: A Compilation of the Official Records of the Union And Confederate Armies. Series 3, Volume 2. Page: 641
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UNION AUTHORITIES.
Massachusetts. For reasons set forth in my General Orders, No. 51, of
which I annex a copy, I have postponed the drafting here till October
15. Before that date I anticipate that our number of voluntary enlist-
ments will reach at least 15,000, possibly leaving several thousands,
however, still to be raised, for whom it will be necessary to make a
draft, chiefly upon the city of Boston, which is more slack in its
enlistments than any other portion of the State.
A consideration of the instructions to be issued to the provost-mar-
shal with regard to the arrest of such persons as having been drafted
shall fail to attend at the places of rendezvous induces me to ask you
to take immediate measures for the institution of a court-martial for
the trial of such cases. The delinquents being militiamen, I presume
that section 6 of the act of Congress of February 28, 1795, will apply
to such a court-martial, and that it must, therefore, "be composed of
militia officers only." Please see also on the subject sections 4 and 5
of the same act. There are militia officers here, exempt from draft,
whom I would recommend to constitute such a court-martial, and I
append a list of names accordingly. Or you might issue an order
authorizing me to appoint and organize such a court. In whatever
mode you may deem it best to constitute it, whether directly or through
me, I hope that it may be done at once, for the possibility of men
being held in arrest for alleged causes which they may assert to be
groundless, without the existence of a tribunal competent to hear and
determine promptly upon the validity of such causes, is one repugnant
to all the principles and sentiments of the people of Massachusetts,
and would be to your own ideas of national justice.
I am, with high regard, your obedient servant,
JOHN A. ANDREW.
P. S.-It seems necessary that such a court-martial should be
ordered by the President, as Commander-in-Chief, because Massachu-
setts is not now attached to any military department, so that the Sixty-
fifth Article of War does not cover our case. The leading authori-
ties appear to be Houston v. Moore, 5 Wheaton, p. 1; Martin v. Mott,
12 Wheaton, p. 19. (See page 35 et seq.) In the absence of Congres-
sional legislation (the act of 1795, chapter 36, being silent as to the
mode of ordering and organizing the militia courts-martial required
by its fifth and sixth sections), I think, under Houston v. Moore,
courts-martial might be ordered under our State militia law, did it not
appear to me defective and in part repugnant to certain provisions of
U. S. laws. Martin v. Mott decides that, there being no mode in the
statute of 1795 pointed out for the formation of the courts-martial in
these cases, it is to be appointed "according to the general usage of
the military service, or what may not unfitly be called the customary
military law." In that case the court-martial was ordered by Major-
General Lewis, U. S. Army, commanding Third Military District,
United States, including the State of New York, in which State the
case of Martin v. Mott arose. It is clear, under the decisions, there-
fore, that a departmental commander could order a court-martial, the
Articles of War and the case of Martin v. Mott both being authority
therefor. There being no such commander, and the legislation being
defective, I think it must be ordered by the President. I would sug-
gest to the President the following list of names:
Maj. Gen. William Sutton, Brig. Gen. Richard A. Peirce, Lieut.
Col. C. C. Holmes, Lieut. Col. John W. Wetherell, Maj. Charles W.
41 R R-SERIES III, VOL II641
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The War of the Rebellion: A Compilation of the Official Records of the Union And Confederate Armies. Additions and Corrections to Series 3, Volume 2. (Pamphlet)
Errata sheets for the Records of the War of the Rebellion include additions and corrections to the text and the index for Series 3, Volume 2.
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United States. War Department. The War of the Rebellion: A Compilation of the Official Records of the Union And Confederate Armies. Series 3, Volume 2., book, 1899; Washington D.C.. (https://texashistory.unt.edu/ark:/67531/metapth139264/m1/650/?rotate=90: accessed July 16, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.