J. Holt to Unknown

With C. A. Dana letter 12/12/64

(Copy)

War Department

Bureau of Military Justice

November 29th 1864.

Respectfully returned to the Secretary of War. It is set forth in the within affidavit (and accompanying papers,) that Hiram Stanton a deputy Provost Marshall has been, since April last, confined in the County jail of Marion Co. Illinois, upon a charge of murder, and that the homicide upon which the charge was based was committed by him while in the discharge of his duty, in arresting by him the order of the Provost Marshall at Cairo, one Newkirk, for treason and disloyalty. It is added that the arrest was resisted by Newkirk and another, who fired upon and wounded Stanton before he himself fired upon them. Under these circumstances it is believed that this party is entitled to have his case passed upon by a military court, as being in the military service of the United States, and therefore included within the provisions of Section 30, ch. 75, of Act of 3 March, 1863. It has heretofore been ruled that this section confers an exclusive jurisdiction upon military

courts for the trial of the crimes therein mentioned, when committed by persons in the military service and subject to the articles of war.

A deputy Provost Marshall is an officer appointed by virtue of Circular No. 19 of War Department, Prov. Mar. Gen's. office, of June 8th. 1863. His duty is to assist the District Provost Marshall in the performance of the duties devolved upon him by law, and particularly in causing the arrest of deserters. He is appointed to assist the Provost Marshall simply because the latter is supposed to be unable to perform effectually the numerous and pressing duties imposed upon him. He therefore acts in the place and stead of his principal, and being thus the substitute and representative of the latter, he should be held bound to the same military control, as well judicial as executive. In accordince with previous rulings of this Bureau he would therefore be held triable by Court Martial for wrongful acts done in the course of the performance of his official duties, and would be viewed as in the military service of the United States.

It is therefore advised that the Governor of Illinois be requested to turn over Stanton to the

[Nov 29 1964]

military authorities for trial upon a charge of murder before a military tribunal. In a number of similar cases requests of this character have been addressed to the Governors of States, and, except in a single instance, (as far as the knowledge of this Bureau extends,) have been favorably entertained, and at once acceded to.

J. Holt.

Judge Adv. Genl.

War Department

Bureau of Mil. Justice

Holt. J. Judge. Advocate Gen'l

Washington Nov 29th 64

Reports to Sect'y of War case of Hiram Stanton, a Dep'ty Pro Mar. now confined in jail in Marion Co Illinois for murder of one Newkirk. States that it is set forth by Affidavits that Stanton was in the discharge of his official duty. - trying to arrest Newkirk for treason, & disloyalty. Was fired upon & wounded by him before he shot him. It is beleived the party is entitled to a trial by Military Court. he being in Military service & therefore within the provisions of Sec 30. ch. 75. of act of March 3, 1863. Therefore advises that the Govr of Ills, be requested to turn over Stanton to Military Authorities for trial for murder before a Military Tribunal.