Resisting The Law

This is from The Gazette from Worthington, Indiana and it is dated July 30, 1863 located on page 2 column 5 & 6.  The incident occurred on July 24, 1863, however, was not reported on in The Gazette until July 30th.

From THE GAZETTE –  Worthington, Indiana July 30, 1863

  About the first of July Capt. Braden, Provost Marshal of this District, ordered one of his Detectives to arrest one Josiah Marvel, a deserter from Co. F 7th Indiana regiment, who was living with his father, Robert Marvel, in the north eastern corner of Hendricks county.  The arrest was not made; but the next day the old man Marvel came to Indianapolis and made an affidavit that his son Josiah “was under eighteen years of age, that he had enlisted without his knowledge and against his consent, and that he (the son)  was restrained of his liberty and detained from the petitioner” by Capt. Braden, Provost Marshal.  On this affidavit, false as the latter specification, and there is reason to believe equally so in every one, a writ of habeas corpus was issued, returnable at 3 o’clock that afternoon to Judge Perkins, of the Democratic Supreme court.  Capt. Braden made return to this, writ that “the said Marvel  is not now and never has been in my custody or under any restraint of his liberty exercised by me personally or officially.”  Upon reading this return to the writ Judge Perkins remarked: “Well, so far as Capt. Braden is concerned, the matter is at an end, and Mr. Marvel will have to find the man who has his son. I believe I will go to the Post Office.”

  On Tuesday night, of this week, Capt. Braden again dispatched two men to arrest the deserter.  They arrived at the house about daylight, and found four or five men there prepared to resist the arrest.  The young man escaped from the house and took to the woods.  The men were bitter in their denunciations of the “Abolitionists,” and “Lincoln hirelings,” and said they were around to “shoot d—d Lincoln’s Abolitionists.”  During the controversy a neighbor, named John Wilson, and his son, came running up, the latter armed with a revolver.  The detectives with some difficulty succeeded in getting the weapon from Wilson, and returned to this city, without the deserter.

  Upon learning these facts, Capt. Braden procured the issue of warrants from Commissioner, Davis for the arrest of John Wilson, Robert Marvel, and the men who were at Marvel’s house, and in company with a Deputy U.S. Marshal and a guard of cavalry, proceeded to that neighborhood yesterday morning to make the arrest.  Not finding Jacob and William cooper, named in the warrants, at home, Capt. B. sent the cavalry to hunt up the others, and proceeded himself to their father’s house, expecting to find them there. – Entering the house he informed them of the object of his visit and his intention to search the house for the parties.  A daughter of Cooper replied that “any man who tried that would get a bail through him.”  The old man came in at this time, and he, his wife, and daughter made a rush for a revolver hanging on the wall.  Capt. B., however, was as quick as they, and seized it at the same moment.  After a severe struggle he succeeded in wresting it from all three, and hurled Cooper headlong through the door.  At this moment Hiram Cooper, a son, came running up with a revolver in his hand exclaiming, “Leave here, you d—d Lincoln Abolition ——.”  His mother called to him to “shoot the Abolitionist.”  He continued cursing, using the most abusive epithets, and raised his pistol to fire, when Capt. Braden rushed upon him and wrested it from his hands.  Having disarmed his assailants, “by main strength and awkwardness,” the Captain put them on the “double quick,” and, failing in with the cavalry, brought them safely to this city, where they will have to stand trial for resisting process.  Capt. Braden, at the time, was not only acting in the capacity of Provost Marshal, but was a special United States Deputy Marshal.  He ought to have shot down the younger Cooper, and that he did not, evinces a coolness and forbearance which few men would have exercised under similar circumstances.  With the assailant’s pistol at his head, and the father mother and sister all calling to “shoot the Abolitionist,” he fore-bore to use his own weapon, and saved the life of a vile scoundrel and would be traitor to his country.

  Here is a plain case of resistance to the civil authority of the Government, an armed resistance, too, and one which should be punished to the fullest extent of the law.  All the parties engaged in this affair are Butternuts of the deepest dye, and if such are with impunity to set at defiance the laws of the country, it were far better to blot them all from the Statute Book.  But it is not strange that such things occur.  The teachings which brought about the terrible deeds in New York, and those which prompted this similar attacks upon officers in the line of their duties, proceed from the same source and have the same damnable end in view.  The cowardly instigators may try to throw the responsibility from themselves, but the foul blot is upon them, and will not out at their bidding,  The blood of innocent men is upon their guilty souls, and ought to damn them throughout all eternity.  (Indianapolis Journal, 24th Inst.)


The actual article found in The Gazette – dated July 30, 1863

Another account of Robert Marvel – Josiah Marvel and the military

From the Indianapolis Daily State Sentinel, Indianapolis, Indiana dated July 28, 1863

    The Marvel Habeas Corpus Case — Four of the parties arrested for conspiracy and charge with relating the arrest of a deserter, viz: Robert Marvel, William Marvel, McCurdy and Starkey, were examined yesterday at the United States Court room by Edwin Davis, Esq. U.S. Commissioner.

   As the Marvel habeas corpus case has been the theme of several editorials in the Journal, more distinguished for malignity than for truth, we have deemed it a duty to notice the points in these cases as they came out in the judicial investigation.

  It appears that Joshua Marvel, who was but little over sixteen years of age at the time, enlisted in the 7th regiment in September, 1861, without the consent of his father.  He ran away from his home in Hendricks county.  The father first heard from him at Elkwater, Virginia.  In December following, he received a letter, stating that he was laying very ill at Grofton, Virginia, where he had been left by his regiment.  Mr. Marvel went to Virginia, and was suffered to bring the boy home.  When he had somewhat recovered he took him to Dr. Bobbs, the chief medical officer here connected with the army, who told him to take him home, that he would not be, or was not fit for service.  The boy had been permanently disabled from marching by a cut on the knee.  It does not appear that any steps were taken to get the boy discharged from the army at that time.

   When Capt. Braden, the District Provost Marshal, was appointed, his detectives hunted up young Marvel as a deserter.  He was sent for once or twice, but was not found at home.  At length Capt. Braden himself saw the elder Marvel, who promised to bring the boy to town on a certain day.  The day appointed came round, and Marvel, the boy and a neighbor named Wilson came to town.

  The elder Marvel sent the boy with Wilson to Capt. Braden’s office, while he went with his attorney, B. K. Elliott. Esq., to the Supreme Court to get out a writ of habeas corpus for his release from the army as a minor.

   Capt. Braden was not in his office when Wilson and the boy arrived there.  He was out, and returned between 1 and 2 o’clock when he was met on the sidewalk by Mr. Nelson the Sheriff of the Supreme Court with a writ commanding him to have the boy Marvel in Court at 3 o’clock.

  Capt. Braden, although it was the day fixed by himself for Marvel to bring the boy, had not yet seen him, and replied that the boy was not in his custody.  He went into Col. Baker’s office on the floor below his own, and made the return that the boy was not in his custody.

  It appears that about the time he made the return, Wilson called his attention to the boy.  Capt. Braden did not remember this distinctly, but the testimony of Mr. Nelson and Mr. Wilson was clear on the point.  Braden then told his deputy to take the writ with the return to the Supreme Court, as he had important business and could not go there himself.

  The deputy of Capt. Braden testifies that when he returned the writ Judge Perkins remarked that was the end of the case so far as Captain Braden was concerned, and took up his hat as if to leave the Court room.  He was not instructed to do anything more than to deliver the writ, but did not know what he might have done had he supposed the case would be heard.

  The case was heard, the boy released by the Court, and Capt. Braden received a notice of it through the postoffice next morning.

   Capt. Braden acting on the presumption that his return to the writ would invalidate any judicial proceeding, had determined to arrest the boy.  He sent Captain Weir and Corporal Lindley to make the arrest.  They arrived at the house of the elder Marvel about daylight.  They reconnoitered the premises, and finally Lindley went into the house.  He saw Mrs. Marvel and her daughter, who told him that Mr. Marvel was out after the cows.  He saw the contents of all the rooms but one which was closed.

   Mr. Marvel, in the meantime, came up, and seeing Capt. Weir in the yard, asked his business.  Weir told him, when Marvel ordered him off, telling him that he should not take the boy, and he would not be responsible for the consequences if he attempted it.  Mr. Marvel told his wife to go over to Mr. Wilson’s and tell Mr. Wilson and his son to come over, as Wilson was present when the boy got his discharge from the court.  It does not appear that Marvel offered any violence, but merely warned the officers not to persist in their attempt to make the arrest.

   While this controversy was going on, young Marvel, who slept in a room with three or four men who had been threshing wheat on the premises, and who were also aroused, slipped out of a back window and made his escape.  These are the men charged, with the elder Marvel, with the conspiracy.  They knew nothing of what was going on until they came out of the room.  The door was not locked or bolted, but merely shut with a latch, and no resistance was offered even there – at the door of their bed room.

  Wilson and his son came over, and young Wilson had a pistol in his belt, which the Captain took from him.  When asked why he carried it, he said it was to shoot Abolitionists, but not to use there, as he did not know them to be Abolitionists.  It appeared afterwards on testimony that he had received letters threatening assassination and carried the weapon to be prepared.

   This was in brief the testimony for the Government.  The defense showed clearly that there was no resistance, that the men at the house were there for a legitimate business and had no idea of throwing any obstruction in the way of the execution of any law.

   Col. Jones in his opening speech took the ground that the State Courts had no jurisdiction of the case of a deserter even a minor, and contended that the proceedings before Judge Perkins were void.  This was his main point, and he supported it by quotations from the opinion of Chief Justice Taney in the celebrated Booth case of Wisconsin.

  Mr. Elliott and Mr. R. L. Walpole met the positions assumed by Col. Jones, very ably, and fenced in their case all round by authorities.  If in contemplation of law a minor was not a soldier without the consent of his aren’t or guardian, he could not be a deserter.  But in this particular case the return on the writ by Capt. Braden waived all controversy as to the jurisdiction of the Court.  It was an acknowledgement of it.  Instead of filing a plea of want of jurisdiction and asking a rehearing, the Provost Marshal set-aside the decree of the highest Court in our State.  The quotations from Judge Taney in the Booth case they contended were not in point, as that was founded on an appeal from the decision of a United States Commissioner – a Federal Court, in fact, to a State Court.  In this case, the proceedings were instituted before the Supreme Court of the State, and there rest.

   The gentlemen both spoke ably, learnedly and eloquently, and we regret we can not report them at greater length.

   Judge Davis discharged McCurdy, Starkey and Wm. Marvel, and held the decision in regard to Robert Marvel under advisement.

According to the database – Indiana, Civil War Soldier Database Index, 861-1865 located on, Josiah Marvel’s birth year was listed as 1843.  His actual birth year was 1845.  The database said that Josiah’s Enrollment date was September 12, 1861 and his Discharge date as July 1, 1862.