In Whitman's Hand

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Title: Henry Stanbery to Andrew Johnson, 21 January 1867

Date: January 21, 1867

Source: Transcribed from digital images or a microfilm reproduction of the original item. For a description of the editorial rationale behind our treatment of the correspondence, see our statement of editorial policy.

Location: National Archives and Records Administration

Whitman Archive ID: nar.00189

Contributors to digital file: Elizabeth Lorang, Nima Najafi Kianfar, Kevin McMullen, and John Schwaninger



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January 21, 1867.

To the President.

Sir:

I have the honor to acknowledge the receipt of a copy of a Resolution of the Senate of the United States, of January 8th, referred by you to this office, for Report. The Resolution is in these words:

"Resolved; That the President be requested to inform the Senate, if any violations of the Act entitled 'An Act to protect all persons in the United States in their civil rights, & furnish the means of their vindication,' have come to his knowledge; and, if so, what steps, if any, have been taken by him to enforce the law, & punish the offenders."

The provisions of the Act which specially refer to the President for Executive action are contained in the 4th, 8th, & 9th sections.

By the first clause of the 4th section, it is provided, "That the District Attorneys, Marshals, & Deputy Marshals, of the United States, the Commissioners appointed by the Circuit and Territorial Courts of the United States, with powers of arresting, imprisoning, or bailing offenders against the laws of the United States, the officers & agents of the Freedmen's Bureau, & every other officer who may be specially empowered by the President of the United States, shall be, & they are hereby, specially authorized & required, at the expense of the United States, to institute proceedings against all & every person who shall violate the provisions of this Act."

The 8th section provides, "That whenever the President of the United States shall have reason to believe that offences have been or are likely to be committed, against the provisions of this Act, within any Judicial District, it shall be lawful for him, in his discretion, to direct the Judge, Marshal, & District Attorney of such District, to attend at such place within the District, & for such time as he may designate, for the purpose of the more speedy arrest & trial of persons charged with a violation of this Act; and it shall be the duty of every Judge, or other officer, when any such requisition shall be received by him, to attend at the place, & for the time therein designated."

Section 9 provides "that it shall be lawful for the President of the United States, or such person as he may empower for that purpose, to employ such part of the land or naval forces of the United States, or of the militia, as shall be necessary to prevent the violation, & enforce the due execution of this Act."

No report has, within my knowledge, been made to you from this office, in relation to any violations of the above mentioned Act; nor am I advised that any report has been made to this office, of any such violations. A case has been referred to this office by the Secretary of War, which may involve a violation of the provisions of the Act, which forbid a discrimination against people of color, under the penal laws of the States. It is the case of one Wm. Fincher, a person of color in the state of Georgia. The action taken by this office upon the reference appears in the following letter:

Attorney General's Office,

December 11, 1866.

Henry S. Fitch, Esq.

U. S. Attorney, Savannah, Geo.

Sir:

It has been represented to the President that a person has been subjected to, & is now suffering (not as a punishment of crime whereof he has been duly convicted,) a condition of involuntary servitude, within the United States, in contravention of Act. XIII Section 1, of the Constitution of the United States.

If a question so grave, & of such high & prevalent interest, has legitimately arisen, it becomes the duty of the Government, independently of the presumptive indigence of the party, in a case involving vagrancy, to direct the zealous coöperation of the counsel of the United States, with that of the petitioner in the courts of law.

It is alleged that one William Fincher is now performing compulsory labor or service in the chain:gang in Pike County, Georgia, a condition of constraint to which he was forcibly subjected, without having been convicted of, or charged with, any crime, defined as such in the laws of Georgia; that he was indicted as a vagrant & convicted of vagrancy in the county court; that upon a hearing before an appellate court, on certiorari, the prosecution below was sustained, and that the whole proceedings were had upon insufficient evidence of the charge; that the sentence was given with circumstances of severity,—& that the object of the prosecution was to destroy the party's influence of action in the community, as a colored preacher, zealously attached to some society or association which is offensive to public sentiment. Such is the information which has been communicated; but your action in the premises will be grounded exclusively upon the facts, as you may discover them upon investigation.

I have to instruct you to inquire into, & immediately report, the substantial circumstances of this case; the law & practice of Georgia, in full, touching the matter, and a full abstract of the record of the prosecution, throughout, stating particulary whether, & if so, when & how, the case has been adjudicated by the highest appellate court of the State, having jurisdiction in the matter.

You will understand, that unless your report shall show that it is entirely impracticable, the object of the President is to have the matter brought forward for adjudication by the Supreme Court of the United States.

I am sir,

Very respectfully

your obd't servant,

signed

Henry Stanbery

Attorney General.

It will be observed that this letter purports that the facts of Fincher's case were represented to the President. This expression was according to the usual formula in such cases, but in point of fact, the representation came through the War Department to this office.

From the facts stated, it was supposed, as will be seen by the letter, that they involved a question of the infraction of the late Constitutional Amendment. It may appear when the report of the Dist. Attorney is received, that they involve an infraction of the Civil Rights Bill.

The Dist. Attorney replied to this letter, under date of Dec. 15, 1866, acknowledging its receipt, & stating that he would proceed at once to Pike County, & make a rigid investigation of the facts, & report as soon as possible. No report having been received, his attention was again called to the subject, & by a dispatch received from him on the 19th inst. he states that the absence of material witnesses, and the pressure of public business had delayed his report—but says that it will be mailed from Savannah this day

I am not advised of any other case which requires Executive action under those sections which have been enumerated, or under any other section of the Civil Rights Bill.

I have the honor to be,

Very respectfully,

Henry Stanbery

Attorney General.


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