Evening star. [volume] (Washington, D.C.) 1854-1972, 1863-07-03
WAR DEPARTMENT..
]
PROVOST MARSHAL GENERALS OFFICE
Nv Sl.EAN II II,i

PRovosT MARSHAL GENERALS OFFICE
WASHINGTON, ID. c., July ], 1863.
Circular, No. 36-The following Opinion of
Hon William Whiting. Solicitor OF the War
Department, is published for the information
and guidance OF all officers of this Bureau:
ARREST OF Observation-Disclosures CORPUS.
Opinion.
1t is enacted in the 9TH section of the act an
proved March 3, 1863, entitled "An act for en-
rolling and calling out the national forces, and
for other purposes" that it shall be the duty of
the Provost Marshals appointed under this act
to arrest all IT. sertsrS, tchether re1uIdrs, ropn-
teers, matsfo men, or persons called into c serpice
under MtS act or any dtter act Of Congress, wher.
ever they may be found, and to send them to
the nearest military commander or military
posi-
State court, and served upon the Provost Mar
shall while he holds under arrest deserter
before he has had opportunity "to send him to
the nearest military commander or military
post" the Provost Marshal is not at liberty 10
disregard that process. sit Is the duty of the
Provost Marshal or other person haying cus-
tody OF the prisoner, 10 make known to the
Judge CT Court, by proper return, the an lhor-
ity by which he holds him in custody. But
after this return is made, and the State Judge
or Court Jndicially apprised that the party is
in custody under the authority OF the United
States, they can proceed no further
They then know that the prisoner is within
the dominion and Jurisdiction OF another Gov
ernment, and that neither the writ of ha6sqs
State authority, can pass over the line of divi-
sion between the two sovereignties. He is then
within the dominion and exclusive jurisdiction
OF The nlted States. II he has committed an
ofpnse against their laws. their tribunals alone
can punish HIM. Il he is wrongfully impris-
oned. their judicial tribunals can release him
and afford him redress. And. although, as we
have said, il is the duty of the Marshal, OF
oiher person holding him, 10 make known, by
proper return, the authority under which be
retains him, Il l., at the same time, imperatvely
h1 .f,..I IT,,,,,
States. 10 hold the prisoner in custody under it.
and 10 refuse obedience 10 the mandate or pro-
cess Of any other Government. And. conse-
quently, II is his duty not 10 take the prisoner
nor suffer him 10 be taken, before a State Judge
or Court upon a hGbedS corpus issued under
State authority. No State Judge or Court
after they are judicially nformed that the party
is imprisoned under the authority of the United
States. has any right TO interfere with him, or
require him TO be brought before them. And if
the authority OF State. in the form of judicial
process on otherwise. should attempt TO control
the Marshal, or other authorized officer or agent
OF ;he United States, In any respect, in the Gus
tody of his prisoner, il would be his duty to
resist il, and to call TO his aid any force that
might be necessary to maintain the authority of
law against illegal interference. No judicial
process, whatever form il may assume, can
have any lawful authority outside OF the limits
of the jurisdiction OF the Court or Judge by
whom it is issued; and an attempt TO enforce it
beyond these boundaries is nothing less than
lawlesS VioIence.'n
Justice Taney, in the decision of the Supreme
Court Of the United States in the case of AL
derman rsrsus Booth (2l Howard's Reports)
If writ OF hdbeds corpus shall have been
sued ont from State Court, and served upon |
the Provost Marshal while he holds the deser- |
ter under arrest, and before he has had time or |
opportunity to 'send him to the nearest mill |
tary commander, or military post,' 1t is the |
duty OF the Marshal to make TO the Court a |
respectful statement, in writing, as & return |
upon the writ, setting forth:
1st. That the respondent is Provost Marshal, |
duly appointed by the President of the United |
States, in accordance with the provisions of |
the act aforesaid
I'd. That the person held was arrested by |
said Marshal as n deserter, in accordance with |
the provision of the 7th section of the act afore
said; that it is the legal duty of the respondent
to deliver over said deserter ssto the nearest |
military commander, or military post" and |
that the respondent intends to perform such |
duty as soon as possible.
Sd. That the production of said deserter i'm |
court would be inconsistent with, and in VIOLA
ton of the duty of the respondent as provost |
marshal, and that the said deserter is now held |
under authority ofthe United States. For these |
reasons, and without intending any disrespect |
to the honorable Judge who issued process, he I
declines to produce said deserter, or TO subject |
him to the process of the court.
To the foregoing, all other material facts may
be added.
Such return having been made, the iurisdic-
tion of the State Court over that case ceases
II the State Court shall proceed with the case
and make amy formal judgment in il, except
that of dismissal. one OF two courses may be
taken. a. The case may be carried up, by ap-
peal or other wise. 10 the highest Court of the
State, and removed therefrom by writ OF error
to the Supreme Court; or, (2) the Judge may be
dealt with in accordance with law,
and with such instructions as may hereafter |
be issued III each case. =
JAMES b. Fey,
~ Provost Marshal General