War of the Rebellion: Serial 114 Page 0870 PRISONERS OF WAR, ETC.

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Knoxville, January 11, 1862.

Honorable J. P. BENJAMIN, Secretary of War, Richmond, Va.

SIR: On the 9th instant I telegraphed* the Department that a writ of habeas corpus had been issued by the circuit court of the State of Tennessee and served on me in the case of Daniel Smith, charged as an accessory to the crime of bridge-burning.

To the writ I made answer that the prisoner had been seized in obedience to instructions of the War Department at Richmond and held as a prisoner of war; that he had been duly transferred as such to my custody and is now held by me commanding Confederate forces in East Tennessee. But the court claims that the validity of the answer must be tried and decided by the court. Judge [George] Brown who issued the writ is a Southern man and desires only to do his official duty. Some other judges of the State exercsing the same authority may be less worthy of confidence and this question of jurisdiction between the military and civil authorities assumes much gravity whether it be decided by loyal or disloyal judges.

In the condition of the country immediately subsequent to the bridge-burning I should have paid no respect to a writ of habeas corpus. The military law of self-preservation prevailed at that time. But the circumstances are now less urgent and I infer that the Government does not wish to suspend the writ. Martial law might be proclaimed locally and the lawyers here think that the writ would thus be suspended. I do not see how so long as Congress has not suspended the writ.

The judges generally and perhaps without exception would decide that a man taken literally in arms against the Government is a prisoner of war. But there must occur many cases of serious guilt wherein the prisoner will be turned over to the civil courts to be bailed out and tried by his peers. If the military have any function or mission to perform in this disturbed country their efforts in that behalf will be frustrated by the interference of the civil courts for the military will be brought into contempt.

To-day I am served with another writ by Judge Brown including the cases of six or eight prisoners to be brought before Judge Humphreys' C. S. court, on the 16th.

I hope to receive from the Department full instructions for my guidance in all such cases.

Very respectfully, sir, your obedient servant,


Colonel, Provisional Army, C. S.

The cases of James S. Bradford, Levi Trewhitt and others.

RICHMOND, VA., January 20, 1862.


SIR: In passing through East Tennessee I have been informed by a gentleman of integrity and whose loyalty to the Confederacy has never been questioned that some forty-five or fifty of the citizens of that section of country have been arrested by persons having or assuming to have military authority under this Government; that after arrest the most of them have been told they must volunteer or be sent to the


* Telegram not found.