Letter from Mississippi Attorney General T. J. Wharton to Mississippi Governor Charles Clark; May 27, 1864

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Attorney Generals Office Jackson, Miss. May 27. 1864

His Excy Chas Clark

Governor

Yrs of yesterdays date is recd. In reply I state, as my opinion, that the temporary Peni-tentiary canot be located out of the State. The 1st Sec of the Act of 1863 is explicit on the point of its location. The buil-ding specified in that act is the only one in which the convicts can be legally confined, until ^a^ permanent penitentiary is erected; except, in the case stated in the 5th Sec, of imminent danger of the place where said temporary penitentiary is situated being invaded by the enemy where they may be removed to some place of safety, and shall be there employed "in the manner most con-ducive to the interests of the State". This answers your 1st [insty.?] whether the temporary penitentiary authorized by said act can be located out of the State.

Your 2d [insty?] is as follows ^"If not^ "Can the convicts be legally removed from the custody of the Sheriff until such Temporary Penitentiary is established within the State, & Proclamation made by the Gover-nor, as required by the 4thSection?

My opinion on that point is that the convicts, after being having been delivered to the Superindent, under their

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sentences, cease to be in the Custody, or under the control of the Sheriff altogether—From thenceforth the liability rests upon the Superintendent. I have always considered, and so stated to your immediate predecessor, that the ward of the convicts from the Penitentiary in this place to Alaba-ma was wholly without warrant of law. The urgency in his view, and in my own, demanded the assumption of respon-sibility in placing them beyond the reach of the enemy, as he was convinced, by what had occurred in Louisiana, that they would be released, if the enemy occupied the seat of Govern-ment, an event which seemed to be impending, and did occur in a few days. It was a Contingency which the law had failed to provide for. I incline to the opinion that they would all have been discharged on writs of Habeas Corpus in Alabama, if such writs had been applied for and granted, as the Superin-tendent of the Penitentiary then could have shown in answer to such writs, no legal authority in him to detain them.

In case they had escaped, on their journey there, or after being there confined, would not our Superintendent have been liable, as he could not have justified on the ground

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Thus far, I have spoken in reference to convicts who hav been recd into our Penity prior to the removal to Ala. Your question may be pointed to those who have [since?] been convicted, and sent ^sentenced^ to the Penity since the building was destroyed, and you may desire to know whether they continue in the control of the Sheriff of their respective counties until temporary Pentiy goes into operations. On that there is a [correction?] in the law, as to the dispensation to be made of them—the act of 63 having made [provision?] only as to those in the Ala. Penity at the date of its passage. The 3d Sec speaks of those hereafter convicted being confined in Said Tempy Penty, but I do not think the Sheriff chargeable with their custody until that time, the county jails not having been [designated?] for their confinment. The [general?] law provides that the court passing sentence upon a party convicted of a Penity offence shall notify the Supt. of the each conviction, who shall, immediately on the recept of each motion dispatch an officer of the penity, with a sufficient guard, for such convict & convey him to the Penity. See Code [Jr?] 623 Art 313— ib 625, Art 321—

You might inquire "Whether the convicts in Ala. can be employed out of the State, or as their removal to the Penity in Ala. has been recognized by law—Can they be with drawn until the Tempo-rary Penity is established?

(over)

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On this point it is not very easy to research the provision of the act of '63. The 6th Sec. expressly provides that the Supt. with the approval of the Governor, "may employ any of the con-victs in or upon any of the State works carried on, in or out of the State & The 5th Sec. also authorizes their removal, in case of danger of invasion, In the Temporary Penity, "to some place of safety, & secure & employ them, when so removed in the manners &c". It does not in, [?] [?], confirm the removal within the limits of the State. Whilst the 2d Sec requires that said Temporary Penity shall be prepared "as speedily as possible for the reception" of the convicts—and the 4th Sec as explicitly [?] to the policy of bringing them—back ^to the State^ speedily, declares that as soon as said Tempy Penty is rea-dy for their occupation, the fact shall be made known by proclamation, & immediately thereupon—all parties sentenced to the Penity shall be re-moved thereto. In like manner, the 7th Sec. provides that as soon as said Tempy Penity is in readiness to receive them, the Supt shall bring back those confined in Ala & confine them in the Penty in this State. This provision only be reconciled, & the intention of the Legisla-ture effectuated by this writ of construction—viz—the Tempy Penty was to be organized as [speedily?] as possible ^and the convicts in Ala. brought back as soon as it was organized^ seeing that no one was [held?] for their safe custody there—that was the primary purpose—

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but does not say that those convicted after the passage of the act, and before the Tempy Penity. was prepared should remain in jail, within custody of the Sheriffs.

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