Indiana State sentinel. (Indianapolis, Ind.) 1861-1865, 1863-08-17

OPINION.
1t is enacted in the 9Th section of the act aD-
proved March 3, 1863. entitled IAN Act for en-
rolling and calling out the National forces, and for
other purposes" It shall be the duty Of the pro-
vust marshals appointed under that act. .to arrest
all deserters. whether regulars, volunteers. militia
men, or persons called into the service under this
or any other act of Congress, wherever they nay
be found. and to send them TO the nearest military
commander or military post"
IL writ of habeas corpus shall be issued BY
n State court and served mon the proves, marshal
while he holds under arrest a deserter, before be
has had opportunity ITO send him TO the nearest
military commander or military post, the pro-
vost marshal is not at liberty to disregard that
process. 'lt is the duty Of the marshal, or other
person having custody Of the prisoner, to make
known TO the judge or court. by a proper return.
the authority by which he holls him in cnstody."
"But after this return is made, and the State
judge or court judicially appraised tha, the party
in custody u 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 government, and that
neither the writ OF habeas corpus nor any other
process issued under State authority can pass
over the line OF division between the two soyer-
eighties he is then within the dominion and
exclusive jurisdiction OF the United States. If
he has committed an ofense against their laws,
their tribunals alone can punish him. III he is
wrOngfuliy imprisoned. their tribunals can release
him and afford him redress; and, although. as We
have said, II Is the duty Of the marshal, or other
person holding him.. to make known bv proper
return the authority under which he retains him,
il is at the same time imperatiYely his duty to
obey the process of the United States, TO hold the
prisoner in custody under il. and 10 refuse Obedi-
ence To the process or mandate Of anv other GOV
eminent; and, consequently. il is his duty not 10
take the prisoner. nor suffer him TO be taken,
before a State Judge or court upon n habeas cor.
pns issned under State authority. No State iudse
or court, after they are judicially informed that
the party is imprisoned under the authority Of the
United States. has any right TO interfere with him,
or To require him to be brought before them; and
if the authority Of the State. in the form of iu-
dicial process. or otherwise, should attempt TO
control the marshal or other authorized officer or
agent Of the United Staees. in any respect. In the
custody OF his prisoner. it would be his duty to
resist il and to call 10 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 law
fol authority outside Of the limits of the iurisdic-
ton of the court or judge by whom il is issued;
and. an attempt TO enforce II beyond those bound
aries. is nothing less than lawless violence"
The language above cited Is that of Chief
Justice fancy in the decision of the Supreme
Court of the United States in the case of Able
man vs.. Booth
If a writ OF habeas corpus shall have been is.
sued out from a State and served upon the pro-
vost marshal. while he holds the deserter under
arrest and before he has had time or opportunity
to "send him TO the nearest military commander
OF military post. il is the duty OF the marshal to
make the court a respectful statement in writing
as r return upon the writ. setting forth: LIST. That
the respondent is provost marshal duly appointed
5y the President of the United States in accord
ance with the provision Of the act aforesaid. 81.
That the person held was rrrested by said
marshal as a deserter. in accordance with the
provisions of the 9TH section of the act aforesaid;
that it is the legal duty Of the respondent to de-
liver over said deSerter TO the nearest military
commander or military post. and that the re
spondeBt intends TO perform such duty as soon rs
possible; that the production Of said deserter in
court would be Inconsistent with and in violation
of his duty as provost marshal, and that the said
deserter is now held under authOrity Of the Uni
ted States. For these reasons. and without in
tending any disrepsct to the honorable Judge
who issued process, he declines to produce said
deserter, or TO subject him 10 the process Of the
court. To the foregoing, all other material
facts NAV be added.
Such return having been made, the jurisdiction
of the State court over that cas- ceases. If the
State court shall proceed with the case and make
any formal judgment in il. one of two courses
may be taken: % The case may be carried ND
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
NAV personally be deilt with in accordance with
law, and with such instructions as nav hereafter
be issued in each case.
(Signed) WILLIAM WuIrISe.
Solicitor Of the War Department.
Approved:
(Signed) EpwIS NJ. SrAroS.
Secretary of War.
June 81, 1863.
By command Of Major General BUnSsipE.
LEwIs RICHMOND,
Assistant Adiutant General.