Daily national Republican., 1863-07-02
n F F l & A l.
WAR DEPARTMENT, }

WAR DEPARrMENT,l
Provost MARSHAL GESERAL's OFFICE, }
WASHINGTON D. C., July I, 1868.
Circular No 36.-The following opinion Of Hon.
William Whiting, Solicitor Of the War Depart
ment, Is published for the Information and guild.
ance of all officers Of this Bureau;
ARREST OF Observation-Disclosures CORPUS.
OPINION.
II Is enacted In the 7th section OF the act ap-
proved March ., 1858, entitled "An act for enrol.
ling and calling out the national forces, and fol
other purposes" that It shsll be the duty of the
Provost Marshsls appointed under this act, "u
arrest all deserers tcheter regulars, pountecrs mill
Tia men, persons called fnioLhe serpice under s
any other act Of Congrsss, wherever they may BE-
found, and to send them to the nearest militar,
commander, or military post"
writ Of hdbeas corpus shall be issued by
State court, and served upon the Provost Marshal
while he holds under arrest a deseiter, before he
has had opportunity "to send him to the neares,
military commander or military post" the Provost
Marshal is not at liberty to disregard that process
at is the duty Of the Marshal other person hsv
Ing custody Of the prisoner, to mako known to thu
Judge or Court, by proper return, the authority
by which he holds him in custody. But after thii
return 10 made, and the State Judge or Court judi
cially apprsed that the party Is In custody undeI
the authority Of the United States, they oan pr
ceed no further.
"They then know that the prisoner within
the dominion and jurisdiction OF anothe. Govern
ment. and that neither the writ of habas corpus
nor any other process issued under state .uthorty,
can pass over the line Of division between the two
sovereignties. He is then within the dominion auL
exclusive jurisdiction Of the United States II hd
has committed An offence against their laws, theiI
tribunals alone can punish him. II he Is wrong.
iully Imprisoned, their judicial tribunals can
lease him and afford him redress. And although al
we have said 1t 10 the duty of the Marshall Or Other
person holding him, to make known, by proper
return, the authority under hich he retains him.
is at the time, imperatively his duty to obey
the process ofthe United hold the prisoner
In custody under 1t, and to refuse OBJ deace to tn.
mandate orprocess of any other Government. AnG
consequently, 1t Is his duty not to take the pri,.
oner, nor suffer him to be taken, before u State
Judge or Court uptn a habeaf corpus issued under
State authority. No State Judge or Court, aitei
they are judicially informed that the party IL i'm.
prisoned under the authority OF the United States
has any right TO interfere with him. or require
him to be brought before them. And II the au
thoiity of a State, in the form Of judicial process
or otherwise, should attempt to control the Mar.
shal, or other authorized officer or agent of tn,
United States, in any respect in the custody Of hi
prisoner, 1t would be his duty to resist IT, and to
call to his aid any force that might be necessary to
maintain the authority Of law against illegal In.
reference No judicial process, whatever form Il
may assume, can have any lawful authority out
side Of the lmts Of the jurisdiction Of the Court
or Judge by whom 1t is issued; and an attempt to
enforce 1t beyond these boundaries is nothing lsss
than lawless violence"
The language above cited is that Of Chief Jus
tice Taney, in the decision Of the Supreme Cour,
of the United States In the case Of Alderman rersus
Booth (2l Howard's Reports.)
II a writ of klbIds tOrDus ali all have been Ruef
out from state Court, and served upon the Pro.
vost Marshal while he holds the deserier under
arrest, and before he has had time or opportunity
to "send him to the nearest military commander,
or military post" 1t 10 the duty Of the Marshal to
make to The Court u respectful statement, In
writing, as a return upon the writ, setting forth
LIST. That the respondent is Provost Marshal,
duly appointed by the esident OF the UniteI
states, in accordance with the provisions of the
act Aforesaid.
Cd. That the person held was arrested by said
Marshal as deserter, in accordance with the pro.
vision OF the 7th section Of the act aforesaid tina,
It is the legal duty Of the respondent to deliver
over said deserter "to the nearest military com.
mander or military post" and that the respondent
intends to perform such duty as soon ss possible.
3D. That the production of said deseiter In court
would be Inconsistent with, and In violation Of the
duty of the respondent As provost marshal, and
that tne bhlu uebtTtcI IL No" nciu
of the Usitcd States. For these reasons, and with
out intending any disrespect to the honorable
Judge who issued process, he declines to pro
duee said deserter, to subject him to the process
Of the court.
70 the foregoing, all other material facts may b
added.
| such return having been made, the Jurisdiction
OF the State Court over that care ceases. II thu
State Court shall proceed with the cate and make
any formal judgment In 1t, except that Of dismis
sal, one OF two courses may be taken. ny The case
may be carried up, by appeal or otherwise, TO the
highest court Of the State, and removed therefrom
by writ of error to the supreme Court; or, () the
Judge may be personally dealt with In accordance
with law, and with such instructions as may here
| after be issued In each case.
| JAMES D. FRY,
| iyl Provost Marshal General
DIVE. ENTY BONDS.