Massachusetts. For reasons set forth in my General Orders, Numbers 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 enlistments 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- marshal 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 Massachusetts is not now attached to any military department, so that the Sixty-fifth Article of War does not cover our case. The leading authorities 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 Congressional legislation (the act of 1795, chapter 36, being silent as to the mode of ordering and organizing the militia court-martial required by its fifth and sixth sections), I think, under Houston, v. Moore, courts- martial, might be ordered under our State of 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, therefore, 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 suggest to the President the following list of names:

Major General William Sutton, Brigadier General Richard A. Peirce, Lieutenant Colonel C. C. Holmes, Lieutenant Colonel John W. Wetherell, Major Charles W.

41 R R-SERIES III, VOL II