War of the Rebellion: Serial 119 Page 1118 PRISONERS OF WAR AND STATE, ETC.

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AUSTIN, TEX., March 30, 1864.

Captain E. P. TURNER,

Assistant Adjutant-General, Houston, Tex.:

CAPTAIN: With the view of inducing the major-general commanding to approve the course pursued by Captain Cone, his legal representative in the late habeas corpus case before the supreme court, and of sharing, if need be, as far as practicable, the responsibilities assumed by him, I as one of the associate counsel appointed by the court to represent the military authorities, deem it proper to make a brief statement to the major-general commanding, indicating some of the reasons that prompted the steps taken in the premises.

The history of the case has been too often rehearsed for me to enter into a detail of the facts. I will confine myself to only two points of difficulty:

First. Captain Cone advised Major Sparks to return the prisoners to the civil authorities unconditionally.

Second. Captain Cone submitted the case upon the petition and returns without going into the merits and without the introduction of evidence.

In taking these steps Captain Cone had my concurrence, as well as that of Mr. Ford, my associate counsel.

1. As to the advice given to Major Sparks for the following reasons, to wit:

The effect of a writ of habeas corpus is to take the prisoners out of the custody of the party holding them, and to place them in the custody of the court issuing the writ. The supreme court having issued the writ, and their jurisdiction having attached, had a right to the custody of the prisoners during the pendency of the proceedings under the writ and until final judgment.

The arrest of the prisoners in the custody of the sheriff came in direct conflict with this jurisdiction and brought the civil and military authorities in collision. I was satisfied that the major-general commanding, charged with the protection of the State, would use every possible means consistent with the high trust with which he is charged to avoid any such conflict and would deprecate any such collision.

The simplest mode of avoiding this conflict consistent with his high trust was to return the prisoners to the civil authorities unconditionally.

The object the major-general commanding had in view in ordering the arrest was the detention of the prisoners. So soon as the court had finally disposed of the case its jurisdiction ceased, the military jurisdiction immediately attached, the prisoners could be rearrested, the object attained, the conflict avoided. For these reasons I concurred with Captain Cone in his advice to Major Sparks. My associate, Mr. Ford, also concurred.

2. The reasons for submitting the case without going into the merits and without introduction of testimony, were the following, to wit:

First. As a mere matter of policy and to satisfy the public mind, it might have been advisable to have entered into a full and complete investigation; but the evidence was not prepared for such an investigation, though every effort had been made to obtain the testimony.

To have gone into the investigation unprepared would have been to fail to make good the charges set forth in the return of the major-general commanding and perhaps defeated the ends of justice.

Besides, the suspension act provides a tribunal for making such investigations fully and fairly.

Second. The only object of a practical character to be attained by entering upon an investigation of the evidence was the detention of the prisoners.