the question of whether a man is a deserter, a spy, or any other offender for which courts-martial try and punish, it may lead to great embarrassment. The case in hand is that of a minor for whom the father sues out a writ of habeas corpus. I submitted the case to you on the 11th instant, and under date of 15th you say, "By the act of Congress approved February 13, 1862, all laws discharging minors are repealed; this man will therefore be returned to this regiment as a deserter."
The law of 1862 repeals the law of 1850, which requires the Secretary of War to discharge minors enlisted without guardian's consent. It is contended that it does not repeal prior laws requiring the consent.
I have the honor to be, your obedient servant,
A. S. DIVEN,
Actg. Asst. Prov. March General, Western Dist. of N. Y.
ACTG. ASST. PROVOST-MARSHAL-GENERAL'S OFFICE,
Elmira, N. Y., June 18, 1863.
Honorable E. P. BROOKS,
DEAR SIR: Pending the proceedings on a writ of habeas corpus in the case of Stillman Duane Clements, One hundred and fifty-fourth New York Volunteers, arrested as a deserter, I addressed you a hasty note. As the object of my thus addressing you might be misapprehended, I now write you more deliberately and with this purpose. In the execution of military orders, necessarily arbitrary, with all the prudence that can be exercised there is great danger of a collision between civil and military authorities. It is with an honest desire to avoid this in this locality that this communication is made; and I make it in writing instead of asking a personal conversation, because I desire to submit to those from whim I receive my orders my exact position, that they may correct me if I mistake their intent in orders to me. The provost-marshals are required to arrest deserters, spies, &c., and convey them to military stations where they may be tried by cour-martial, or dealt with according to military usage.
If, when an arrest is made under these orders, a writ of habeas corpus is issued, I should direct the marshal to show to the court granting the writ the regularity of the arrest and the order under which he acted, and his authority, if questioned. But if it were claimed by the judge that he could try the regularity of the enlistment and the questions properly triable by a court- martial, and release the prisoner if he was not proved to be a deserter, then I should deem it my duty to advise the provost- marshals, or those acting under them, not to produce the prisoners before the judge issuing the writ, but to convey them to the military post as directed by