War of the Rebellion: Serial 119 Page 1096 PRISONERS OF WAR AND STATE, ETC.

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morning, and upon them made a motion that the prisoners be delivered to the commander of the post. It being a grave matter to be considered, the court took until to-morrow morning to decide upon it. I sent word immediately to the commander of the post not to arrest the prisoners until the court had decided the matter before it, but he having positive orders from you, and feeling himself held responsible for the prisoners, arrested and took the prisoners into custody about 12 o'clock m. This course created a great deal of excitement and the supreme court attached the commander of the post for contempt, while the Governor of the State wrote several communications to Major Sparks upon the illegal course he had pursued. The whole affair was unfortunate, and I had much difficulty in finally arranging matters satisfactorily to all parties. Your order to Sparks contained the following words, viz: "You will yourself disregard the present writ of habeas corpus or any writ which may subsequently be issued," &c. Sparks was determined to obey it, and the Governor and the supreme court were determined to have the prisoners back. In this state of affairs after having had several conferences with the Governor and several with sparks, and having taken counsel with Messrs. Ford and Robards, I gave to Major Sparks a written opinion, the substance of which was that the prisoners having been turned over to the civil authorities and being in the custody of the supreme court when arrested to-day, ought to be returned to the sheriff until the matters in their case were settled and adjudicated, he furnishing a sufficient guard to prevent escape or any harm being done them by a mob. Upon that opinion being given, Major Sparks wrote to the Governor expressing his willingness to return the prisoners, with a guard which he should furnish, which proposition was satisfactory to the Executive of the State. Thus the matter stands to-night. To-morrow morning we propose to discuss the motion I made to-day to remand the prisoners into the custody of the military authorities. If the motion is not entertained by the court we shall introduce no evidence, but let the supreme court discharge them, so that they may be arrested by Major Sparks under the orders you have given him. If they sue out another writ of habeas corpus, the return can set forth that they are held in custody by the order of the lieutenant-general commanding the Department of the Trans-Mississippi.

I hope I have acted in accordance with your views, after having read what I have written. Of one thing I am certain, the course which has been pursued is the only one we could think of to prevent an ugly collision between the civil and military authorities. I am satisfied that the course pursued by Sparks, if persisted in, would have been productive of bad results, though, like a good officer, he was determined to obey the orders he received promptly. It was apparent to me, however, that you did not exactly know the position of affairs, and had not scrutinized the recent act of Congress closely. The law nowhere contemplates the taking from a judicial tribunal parties who may be before it on a writ of habeas corpus, and if my construction of the law is correct, in all the cases enumerated in the law, the writ may issue, but if the return upon it shows that the prisoner is held in custody by authority of any of the persons and for any of the offenses mentioned in the act, then all proceedings cease.

I sincerely hope that this matter will turn out all right and the prisoners be safely secured after the court shall have acted.

I will keep this letter open to add a line in the morning if anything occurs.

Very respectfully, your obedient servant,

HORACE CONE.