486 



HABEAS CORPUS. 



3d. That the production of said deserter in Court 

 would be inconsistent with, and in violation of, the 

 duty of the respondent as Provost Marshal ; and that 

 the said deserter is now held under authority of the 

 United States. For these reasons, and without in- 

 tending any disrespect to the honorable Judge who 

 issued process, he 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 jurisdiction of 

 the State Court over that case ceases. If the State 

 Court shall proceed with the case and make any for- 

 mal judgment in it, except that of dismissal, one of 

 two courses may be taken : 



1. The case may be carried up, by appeal, to the 

 highest court of the State, and removed therefrom 

 by writ of error to the Supreme Court ; or, 



2. The Judge may be personally dealt with in ac- 

 cordance with law, and with such instructions as 

 may hereafter be issued in each case. 



JAMES B. FRY, 

 Provost Marshal General. 



In carrying out the principles upon which 

 this circular was issued, Gen. Burnside pub- 

 lished the following : 



General Order No, 113. 



HEADQTTARTERS DEPARTMENT OP THE Omo, ) 

 CINCINNATI, OHIO, July 8, 1863. j 



In accordance with the opinion of the Solicitor to 

 the War Department, and with instructions of the 

 Secretary of War, through the Judge Advocate Gen- 

 eral, based upon the decision-of the United States 

 Supreme Court, delivered by Chief Justice Taney, in 

 the case of Alderman vs. Booth, the following direc- 

 tions are given for the conduct of the military offi- 

 cers of this Department in cases of habeas corpus, is- 

 sued from State Courts for persons in the official cus- 

 tody or control of such military officers, whether as 

 enlisted soldiers, arrested deserters, or arrested par- 

 ties chargeable with offences to be tried before a 

 Military Court. 



I. Whenever such writ is served upon a military 

 officer, in the case referred to, he shall make a re- 

 spectful return in writing, setting forth : 1. That the 

 respondent is a military officer, duly commissioned 

 and appointed in accordance with the laws of the 

 United States, and stating the nature of the duty to 

 which he is assigned ; 2. The reason of the custody 

 of the person demanded, whether as enlisted soldier, 

 deserter, or criminal arrested under military law ; 3. 

 That the production of said person in Court would 

 be inconsistent with and in violation of his duty as a 

 military officer, under the orders of his superiors; 4. 

 That said person is now held under authority of the 

 United States, and that for these reasons, and with- 

 out intending any disrespect to the honorable Judge 

 who issued the process, he declines to produce said 

 person, or to subject him to the process of the Court. 

 To this return a statement of all other material facts 

 may be added. 



II. When the return to the writ has been made 

 in accordance with the foregoing instructions, the 

 jurisdiction of the State Court over the case is held 

 to have ceased, and the officer will proceed with his 

 militarv duty as if no such writ had been issued. 



III. If, after such return, the Judge should pro- 

 ceed in the case, cither personally against the officer 

 making the return, or in favor of the person held, 

 and for the purpose of enforcing his release from cus- 

 tody, complete protection will be afforded by the 

 nearest military authority, acting firmly but with all 

 possible respect to the Court. 



IV. Official information of every case arising un- 

 der this order will be immediately forwarded, through 

 the regular channels, to these headquarters. 



V. ft will be carefully noticed that the provisions 



of this order do not apply to writs or processes is- 

 sued out of the Federal Courts. 



By order of Major-General BURNSIDE. 

 LEWIS RICHMOND, 

 Assistant Adjutant General. 



A case soon arose before Judge Paddock in 

 Cincinnati, in which the opinion of Mr. Whit- 

 ing was subjected to the test of a judicial de- 

 cision. The Judge in his opinion says : 



Upon the 17th day of July, 1863, petitions were 

 presented to the probate judge of this county by the 

 parents of Henry Hicks and James Archibald, re- 

 spectively, alleging that said parties were minors, 

 and that the petitioners were entitled to the custody 

 of their respective children; that said minors had 

 enlisted in the volunteer service of the United States 

 army, and were illegally detained in the military 

 prison of this city by Lieutenant-Colo_nel Boone, and 

 pray that writs of habeas corpus may issue for them. 



Upon the same day the writ was allowed and is- 

 sued to the sheriff of the county, returnable upon the 

 18th, at 10 o'clock A. M., at which time the hearing, 

 at the request of counsel, was continued to the 25th 

 inst. at the same hour. 



The sheriff made the following return to the writ : 



" I have served the within-named Colonel T. C. 

 Boone with a copy of this writ personally, and have 

 demanded the body of the within-named Henry Hicks 

 from Colonel T. C. Boone, and he refuses to de- 

 liver him into my custody until further orders from 

 the commanding general." 



"WM. LONG, Sheriff Hamilton county. 



" WM. H. GLASS, Deputy." 



The same return was made in the case of Archi- 

 bald. 



Upon the 20th ult. the cause came on for hearing. 

 H. L. Burnett, judge advocate of the Department of 

 the Ohio appearing in behalf of Lieutenant-Colonel 

 Boone, and filing for him an answer, setting up that 

 he was Lieutenant-Colonel of the One Hundred and 

 Fifteenth regiment 0. V. I., and was in command of 

 Kemper Barracks, a military prison in this city; 

 that, on the 13th of July, Henry Hicks was delivered 

 to him to be forwarded to his regiment to answer for 

 desertion ; that he has since held said Hicks as a 

 deserter, in pursuance of official duties, &c. ; that said 

 Hicks had been arrested by order of the provost mar- 

 shal of the Second Congressional district of Ohio as 

 a deserter from the United States Army, where he 

 owed service and allegiance. 



The answer further sets up a circular from the War 

 Department, and an order from headquarters De- 

 partment of the Ohio, by which Lieutenant-Colonel 

 Boone is to be governed, and attaches copies thereof. 



For these reasons, and in obedience to the orders 

 above named (the answer says), the respondent, 

 as an officer of the United States army, cannot de- 

 liver up or produce in this court the body of the 

 within-namea Henry Hicks, and not from any disre- 

 spect to the court issuing the writ. 



A motion for an attachment of Lieutenant-Colonel 

 Boone, for contempt of the order of the court in re- 

 sisting the sheriff in the execution of the writ, was 

 thereupon made, and upon the hearing, the various 

 questions arising in the cases were argued and sub- 

 mitted, and are now to be decided. 



The answer of Lieutenant-Colonel Boone is pre- 

 pared in pursuance of the instructions in the Gen- 

 eral Order No. 113, an official copy of which is at- 

 tached. 



This order, it will be seen, prescribes the kind of 

 answer to be made by the military, and also names 

 the stage of the proceedings when the State courts 

 are to be regarded as ousted from and denied all 

 further jurisdiction or power; enjoins that any fur- 

 ther proceedings of the judge for the release of the 

 party for whose benefit the writ is issued, or against 

 the officer holding him, must be resisted by force. 



