Letter from Mississippi Attorney General T. J. Wharton to Mississippi Governor Charles Clark; January 5, 1864

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Attorney Generals office Jackson, Jany 5^th. 1863 [note] [1864?] [/note]

His Excellency

Chas Clark

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General Polk had a long con-ference with me in reference to the necessity of some action to avoid all possible collision between the military & civil authority, under the conscript laws. I recommended that he & yourself join in a leter to the Judges of the High Court requesting them to hold a term of their Court, & afford an opportunity of reviewing, or unit of men, The decision of the Circuit Judges or writ of Hab Corpus—This suges-tion he cordially approved, & said if it could be ascertained where Judge Harris was he would send a courier with a letter to him. I advise that you write to Judge Harris, at Canton, on receipt of this.

In view of the difficulty, I am inclined to advise that you commission Co^l. Hurst as Judge. When I was at Columbus—the matter was but little discussed or considered whether the commission issued to Mr Goode was absolutely void or only void-able. I inclined to regard it as only voidable, & so stated in the opinion I sent you. On further inspection, & after consultation with others for whose opinions I have great respect, I regard it as clearly and absolutely void. Suppose you had been informed by the Secy of State that some one who was not a candidate & had not been voted for, had re^d. a majority of votes polled & you had there upon issued to him—or to a man who was really died^dead^ at the time, a commission. You would not doubt that the com-mission so issued was absolutely void. Besides, the commis-

-sion does not confer the office, or the right to hold it upon the person commissioned. We only prima facie evidence of his having been elected to it, and that is the case even where there is no contest as to the matter. I maintain that if Mr Goode had never resigned (although it is misnomer to say he resigned, as he was never elected) but had claimed his seat, under his commission, the objection could be made, on terms, as it was done in the case of Mr Laspley?—who went on the bench under his appointment by Gov^r. Whitfield—by any party having a case in Court. Upon the resignation of Judge Sharkey, Mr [Laspley?] was appointed to fill the vacancy. Judge S term had more than one year to run. In such case the Governor has no power to appoint.

Again: There is no contest in this case. After learning that Hunt had an actual majority of the votes polled, Goode as I learn, declared he would not be a candidate at the special election.

Under all the circumstances, if I still had a doubt as to the commission being only voidable, I would be inclined to resolve the doubt by advising that a commission issue to Hunt.

I rec^d. a letter from Mr Gillespie stating that you were at some loss as to one or two points arising under the law bonds to be issued to take up the Treasury notes issued for military defense &—[?] as to the form of the bond prescribed—which is "N^o. The State of Mississippi will pay five hundred dollars, payable ten years after day"—I am asked whether you are authorized to change the word day into date. There is no necessity for such change. The terms are synonimous in law in such a case. Ten years after what day? Why the day of the date of the bond, which the law requires to be signed.

We say day and date. They are convertable terms. Have you examined the original? If it is correctly printed, let it stand Just as it is—"day"

The seemed difficulty is, whether the law authorizes bonds of lar-ger denomination than $500 to be issued—No bond of greater or smaller denomination—than $500 can issue. That is fixed—by the form given in the 1^st. Sec—also by the concluding words of the 2^d. Sec—"provided the sum so presented shall amount to five hundred dollars"—No fractional bonds can issue. If a party has $700—he can only get a bond for $500. If he has $10.000, he can get 20 bonds, each, for $500—

Mr Russell mentioned some difficulty suggested by you in refer-ence to the law establishing a temporary Penitentiary

1^st As to the [Inspectors?] continuing in office, as their terms has expired, & no new ones were appointed—The old ones are in, until "Their sucessors are appointed and qualified." or, until removed for delinquency. They are required to visit & inspect the institu-tion once a week. Two of them have been in Al^a. for several weeks. They should at once resign—& let others be appointed. You had better write to them, as this would obviate necessity for their re-moval. As yet they are not delinquent. After reorganization, of the continued absent, you would have to suspened them. One of them is J. C. Napier, Demopolis—the other is C. R. Dickens, Selma—See Code 63:3—Art. 2 as to the terms of the inspections.

Second—Do the general laws governing the Penitentiary apply to the temporary Penitentiary? They do, as far as applicable to the changed conditions of the institution. See late act—see Sec 3—"so far

as the same can be made to apply."

Third—When you issue the proclimate—provided for in the 4^th Sec. shall you disseminate it the Penitentiary or temporary Penitentiary. This is unimportant.

See 3^d Sec which says it is "[?] declared to be the Penitentiary. In your proclimation say—that whenever the Legislative, at its last session proposed an act pro-viding for "the establishment of a temporary Penitentiary," and whenever the same has been organized at the city of Jackson—this is therefore to [?] [?] that [the?] [land?] is [now?] [a?] [?]" &c for the [?] of [?]" &c

Russell recommends that you appoint as Inspectors C. H. Mansless?, D N Bunoms?, & Alex. Virden.

I have several times written to this [?] & others as to the Servants employed to wait upon Capitol—See codd 118–art 97—"The keeper of the capitol—approval of the Governor shall find such servants as may be necessary to attend to public officers in the Capitol to cut wood, bring water and keep the Capitol grounds in due repair." [It?] [also?] [?] that the compensation shall not exceed $400 in any one year.

[?] [?] Charles has been employed for many years under that law. He is still in attendance. The abscence or removal of the State officers—does not interfere with the execution of that law. His man [?] was important to observe it.

When the officers are all here, they can excercise a [?] & Supervision. The responsibility of the Servant in protecting the Capitol, & the Capitol grounds is now greater than the war. The now keeper of the capital has not arrives. He ought to be here. Locks are broken off the doors—Soldiers & others occupy them without leave. Various persons have taken the [?] which are specially appropriated by law.

Very [?] [?]

T J Wharton Att^y. Genl of Missⁱ

Mr Russell says you mailed a letter to me. Ihave not re^d. it.