War of the Rebellion: Serial 119 Page 0002 PRISONERS OF WAR AND STATE, ETC.

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criminals. In answer to this demand it is to be said in the first place that it is by no means clearly made out that these parties are officers and men of the rebel army and therefore proper subjects for exchange. It is not shown under what command this regiment was, in what brigade, division, or part of the rebel army, nor whether it has been stationed for any purpose in the part of Kentucky where its operations were carried on. The enemy has no post or garrison in that region and no regular force. The party which crossed into Indiana seems to have been acting independently, carrying on a border warfare or making a raid as frontiersmen. the very name of the regiment to which the company in question is alleged to have belonged, Colonel Johnson's partisan rangers, discloses the probable character of these troops and seems to fix their character as guerrillas or bushwhackers. It does not appear that these men were regularly mustered into the service of the enemy (as supposed by Colonel Ludlow), but only that they had been sworn in. But whether this formality was anything more than the administering of an oath or pledge to them as guerrillas or independent partisans is not made evident.

Whether these men therefore should be regarded as engaged in regular warfare as officers and soldiers of the enemy's army is extremely questionable. Moreover it is not deemed advisable that the jurisdiction which the State of Indiana has assumed to exercise over these parties should be interfered with under the circumstances. the authorities of that State have had the best opportunity to; determine the character of these men and their purposes, both of which were probably notorious along the border. they have known them as citizens of a loyal State, yet as operating themselves in the rebel interest or more probably as taking advantage of the existing hostilities to engage in raids on their own account and independently of any organized a. With this knowledge the authorities of Indiana, who must also be presumed to have arrested these men with good grounds for believing that they had committed the crime in question, have confined and indicted the parties as felons. This action has been with them a measure of police or military policy. It the State of Indiana had been invaded by a regularly constituted army of the enemy, and afterward during the war her civil authorities had succeeded in arresting any rebel soldiers known to have taken and converted private property during the invasion, and had proceeded against them as for a felony, their acts would doubtless have been sanctioned by the non-interference of military authority. But in the present case the reasons for such non-interference are still more grave and cogent. If the parties in question can prove by legal testimony that they are officers or soldiers of the Confederate army and that the acts for which they are indicted were committed under the orders or sanction of superior officers of that army, such proof will operate as a good defense upon their trial and the validity of such a defense can be determined far more satisfactorily ii the neighborhood where the offense was committed and by testimony given under oath before a formal tribunal, than upon the loose and irresponsible statements of enemies, which now constitute the only data in the case.

Respectfully submitted.

J. HOLT,

Judge-Advocate-General.

List of prisoners referred to. *

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*Omitted.

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