The Trial of Colonel Ebenzer Magoffin, C.S.A. (1862)

July 15, 2006

Nevada's Online State News Journal


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[The publisher of The Nevada Observer ran across this strange tale several years ago in the course of some researches into irregular warfare and civil affairs operations. This compilation copyright © 2006 by David Thompson. Readers interested in finding out more about Colonel Magoffin may enjoy the essay "President Lincoln and the Magoffin Brothers" by William B. Claycomb, available online here, courtesy of the Morningstar Press.

THE TRIAL OF COLONEL EBENEZER MAGOFFIN, C.S.A.

Compiled and Arranged by David Thompson

from the

WAR OF THE REBELLION:

A COMPILATION OF THE

OFFICIAL RECORDS

OF THE

UNION AND CONFEDERATE ARMIES.

PREPARED UNDER THE DIRECTION OF THE SECRETARY OF WAR, BY BVT. LIEUT.

COL. ROBERT N. SCOTT, THIRD U. S. ARTILLERY,

AND

PUBLISHED PURSUANT TO ACT OF CONGRESS APPROVED JUNE 16, 1880.

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THE TRIAL

From OR Series II, Vol. 1

Trial of Col. Ebenezer Magoffin, accused of murder and violation of parole.

SAINT Louis, Mo., February 6, 1862—1 a. m.

The commission* met pursuant to adjournment

Present as follows: Brig. Gen. David S. Stanley, U. S. Army; Col. R. D. Cutts, of the staff; Lieut. Col. John Scott, Third Iowa Volunteers.

_______________________________________

* Constituted by Special Orders, No. 51, p. 284. Brig. Gen. D. S. Stanley, U. S. Army, relieved Brig. Gen. S. D. Sturgis, U. S. Army, on this commission in pursuance of Special Orders, No. 59, January 20, 1862, omitted.

EARLY EVENTS IN MISSOURI, ETC. 293

The accused, Col. Ebenezer Magoffin, also present.

Capt. Lewis [Louis H.] Marshall, Tenth U. S. Infantry, being present in pursuance of an omitted order of General Halleck, the judge-advocate asked the accused if he had any objection to Captain Marshall being a member of the commission, to which he replied he had not. Capt. Lewis Marshall, Tenth U. S. Infantry, was then duly sworn by the Judge-advocate in the presence of the accused.

The accused then presented his plea to the jurisdiction of the commission for the offense set forth in the specification under charge 1, which plea was read to the commission by the counsel for the accused, and will be found attached (marked A) to these proceedings.

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23 R R—SER II, VOL I 354 PRISONERS OF WAR, ETC.

Exhibit A. [OR Series II vol. 1 p. 354-357]

I respectfully submit that the plea to the jurisdiction of the court ought to be sustained for the reason that by the Constitution and laws of the land this commission has no right or authority to subject me to trial or punishment for the offense set forth in the specification under charge I. In the examination of the question raised by the plea it may be assumed that this is not only in form but in fact a government of law, under a written constitution, and the life of no citizen ought to be or can be legally forfeited except in obedience to or by the authority of law. I do not propose to abuse the liberty accorded to me of offering argument in support of the plea by discussing right of arrest during an insurrection or rebellion, or martial law, or any kindred subjects, but shall confine myself as closely as possible to the particular question under consideration.

I, a citizen of the United States, and an inhabitant of the State of Missouri, one of the United States, in a district where the laws of the State are in force and can be executed, am called upon to answer to the charge of murder, not before the judiciary department either of the United States or of the State of Missouri, without presentment or indictment, without a jury and beyond the judicial district in which the offense is alleged to have been committed. Against the exercise of this power I hold up the Constitution of the United States and claim its protection. Article V declares “that no person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in active service in time of war or public danger.” It will be perceived that the only cases excepted are those arising in the land or naval forces of the United States or in the militia; and it will not be pretended this case arose in the land or naval forces of the United States. I was never in either nor in the militia. But even in cases arising in the land or naval forces it would not be competent for a military commission to punish for a capital offense without some law to justify it, and therefore by section 8, Article I of the Constitution it is declared that “Congress (and Congress alone) shall have power to make rules and regulations for the government of the land and naval forces.” The offense charged against the undersigned is not embraced in any such rules and regulations, or in the rules and articles of war. The jurisdiction then of the commission is not conferred either by the Constitution or laws of the United States. Where shall we look for it ? It may be in the order of the general commanding in this department. But from whence does he derive his authority ? If legitimate it must be from the Constitution and laws. If not derived from that source it is respectfully submitted that it is a usurpation of authority that no one either officer or private in the army or out of it is bound to obey.

In the brief interval since the adjournment yesterday no opportunity has occurred to examine the general orders of the commandant of this department; yet it is believed that they do declare that the courts (loyal) are not and will not be suppressed but that they will be in aid of the military, and restricts the enforcement of martial law to the city of Saint Louis, the railroads and rivers of the State. I know that the argument offered to sustain the power is “that the life of the Government is in danger; we cannot afford the protection of law to traitors; that necessity is above all law and the safety of the people is the only law.” In American history these are new doctrines, and if they be

EARLY EVENTS IN MISSOURI, ETC. 355

true then this Government is an absolute despotism. Charles I. of England thought it necessary to issue commissions to try not only soldiers but other dissolute persons who might commit murder or other outrages, but the Commons of his realm compelled a revocation of such commissions, saying that no man ought to be “judged to death but by the laws established in the realm” and such commissions for the trial of civilians have not existed it is believed either in England or America from the time of Charles to this hour. If I have committed an offense against either the laws of the State of Missouri or of the United States I admit that I may be lawfully called to answer if need be with my life. At the very point where I now am and at the very point where the offense is alleged to have been committed the courts of both the State and Federal governments are open and free with full power and ability to try and punish all offenders. But suppose they were not; suppose an insurrection or rebellion swells into such strength in any district as to defy the ordinary civil tribunals—is the Government then powerless? Must it submit? The answer is it must draw the sword and enforce its authority by the sword. But it by no means follows that military commissions shall issue to try persons not in the land or naval forces for murder or other offenses. The powers of the Government in the case of insurrection and civil war were very fully and ably discussed in the case of Luther v. Borden and others (the Dorr Rebellion in Rhode Island) by the Supreme Court of the United States. The Chief Justice acknowledges the power to arrest but by no means admits the power of the military to try and punish for offenses. It is said “the officers engaged in its military service might lawfully arrest anyone who from information before them was so engaged in the insurrection.” No more force, however, can be used than necessary to accomplish the object (8th Howard, p. 46). The undersigned submits that if the offense with which he is charged can be tried by this commission then any killing whether of soldier or civilian at any point in the State of Missouri may be so tried. Nay, more, that any offense committed in the State may be punished at the discretion of the commission; and if it can be done in Missouri in virtue and by authority of a general order of the commandant of the department so it may be done in New York -- and thus it will be determined that during a civil war all civil government may be rightfully suppressed at the discretion of a subordinate military officer, and in place of it a military despotism established, at least during the existence of such civil war. Against such doctrines the undersigned pleads and protests. In the examination of this question it should be remembered that there is a vast difference between a war waged against a foreign people and the military authority of the nation in arms to suppress an insurrection or to put down a rebellion of our own people.

Before General Scott started to Mexico in 1847 as early in fact as May, 1846, he presented for the consideration of the Secretary of War a project for a law giving to courts-martial in an enemy’s country authority to punish offenses which in the United States are punishable by the criminal courts of the land. Congress did not, however, act upon the recommendation, and General Scott afterward, in 1846, submitted to Mr. Marcy, Secretary of State [War], the draft of a letter which he recommended should be dispatched each commander of an army operating in Mexico. “I am aware,” said he, “that it presents grave topics for consideration, which is invited. It will be seen that 1 have placed all necessary restrictions on martial law: first, by restricting it to a foreign hostile country; second, to offenses enumerated with some

356 PRISONERS OF WAR, ETC.

accuracy; third, by assimilating councils of war to courts-martial; fourth, by restricting punishments to the known laws of some one of the States of the Union.” This project met with no favor from the President. General Taylor in October, 1846, informs the Secretary of War of the “most shameful atrocities” being committed without punishment, and he asks for instructions as to the proper disposition of the culprit in a case of cold-blooded murder at Monterey. Mr. Marcy replied:

The competency of a military tribunal to take cognizance of such a case as you have presented, viz, the murder of a Mexican soldier and other offenses not embraced in the express provisions of the articles of war, was deemed so questionable that application was made to Congress at the last session to bring them expressly within the jurisdiction of such a tribunal, but it was not acted upon.

He adds:

I am not prepared to say that under the peculiar circumstances of the case, and particularly by the non-existence of any civil authority to which the offender could be turned over, a military court could not rightfully act thereon; yet very serious doubts are entertained upon the point and the Government does not advise that course. It seriously regrets that such flagrant offender cannot be dealt with in the manner he deserves. I see no other course for you to pursue than to release him from confinement and send him away from the army and this is recommended. (See Military Dictionary, Scott’s, 659 and 660.)

Now nothing is clearer than that the rules and articles of war went with our army in its invasion of Mexico. If they did not provide for the trial by a military tribunal of an American soldier who in a foreign country murdered a Mexican soldier in cold blood how can it be that in the United States where the civil tribunals have exclusive jurisdiction of such offenses that a military tribunal can claim to try a citizen for the murder of a soldier ? This view is enforced by the celebrated Order No. 287, issued by General Scott on the 17th of September, 1847, from the National Palace in Mexico. (See Scott’s Military Dictionary, p. 383 et seq.)

Under the head “Law,” page 382, I submit to the court the following extracts:

Within the United States therefore the effect of a declaration of martial law would not be to subject citizens to trial by courts-martial, but it would involve simply a suspension of the writ of habeas corpus under the authority given in second clause of section 9 of the Constitution, viz: “The privilege of the writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion the public safety may require it.” The, suspension of this privilege would enable a commander to incarcerate all dangerous citizens, but when brought to trial the citizen would necessarily come before the ordinary civil courts of the land. (Page 383.)

There is not perhaps a finer military statute on record, and its author bases his right to establish military tribunals for the trial of offenses exclusively upon the ground that he is in a foreign country and out of the reach of the civil tribunals which in a government of law and order would have exclusive jurisdiction over them. So reluctant was General Scott to encroach upon the action of the civil tribunals of Mexico that in section 13 of his order he provides:

That the administration of justice both in civil and criminal matters through the ordinary courts of the country shall nowhere and in no degree be interrupted by any officer or soldier of the American forces except, first, in eases to which an officer, soldier, agent, servant or follower of the American Army may be a party; second, in political cases—that is prosecutions against other individuals on the allegation that they have given friendly information, aid or assistance to the American forces. (See page 385, Scott’s Dictionary.)

This is a proceeding not under martial law but military law, and it is settled even in England that the military law does in no respect

EARLY EVENTS IN MISSOURI, ETC. 357

either supersede or interfere with the civil law of the realm and the military is in general subordinate to the latter. (Tyler on Military Law, 365.) The Articles of War do not provide for such a case for they are confined strictly to military matters even on a soldier himself, and cannot be exercised even against a soldier by an officer except in such matters and about which the officer has the right to order him. So zealous has been England in such cases that Governor Wall was executed in England after the lapse of twenty years for flogging (so that he died) a soldier for an offense not military, and by a pretended court-martial not full. If I have been guilty of the offense charged I have violated the law of this State, and am amenable to the judgment of the court which by the Constitution is appointed to take jurisdiction of my case. If I am cleared of this charge by this tribunal the acquittal here will not aid me before the State court. If I am acquitted I cannot plead the acquittal in bar of an indictment found by a grand jury of Pettis County.

Lastly the charge in substance is murder. Now by what standard can this tribunal determine the offense? By the law of this State murder is divided into two degrees, and manslaughter into four. By the criminal court of the United States there is no division of murder or of manslaughter. Will this court make its standard the law of the United States? The United States cannot take jurisdiction of any homicide unless it be committed in a place over which it has exclusive jurisdiction such as forts, dockyards, arsenals or in the Indian country. Congress has no power to provide for a homicide committed in a State. The subject belongs exclusively to the municipal power of the State. Will this court make its standard the law of the State ? This tribunal is no State tribunal; it belongs to no department of power of this State. The State has no power to create this tribunal.

If I have in my comments upon the power and jurisdiction of the commission in any respect overstepped the limits accorded to me I crave the indulgence and pardon of the commission. The position in which I am placed is without precedent in this Republic;. and I may without a blush acknowledge my embarrassment and inability to discuss satisfactorily the great principles involved in my case in the brief time allowed to me.

Respectfully submitted.

EBENEZER MAGOFFIN.

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The commission was then cleared for deliberation, and after duly weighing the argument and reasons adduced the doors were reopened and the president announced the decision of the commission to be adverse to the plea of jurisdiction as urged by the accused.

The accused was then arraigned upon the following charges and specifications, which were read aloud to the commission by the judge-advocate:

CHARGE 1: Killing in violation of the laws of war.

Specification .—In this, that he, Ebenezer Magoffin, of Pettis County, Mo., not being a legitimate belligerent did wantonly and maliciously kill and murder George W. Glasgow, a sergeant in Company C, First Illinois Cavalry, and a soldier in the service of the United States by shooting him with a ball from a gun or pistol. This at Georgetown, Pettis County, Mo., on or about the 1st day of September, 1861.

CHARGE 2: Violation of parole.

Specification—In this, that he, Ebenezer Magoffin, of Pettis County, Mo., said to be an officer in the rebel army, having on or about the 10th day of December, 1861, given his parole of honor not to resume arms against the Government of the United States and having in consideration therefor received a safeguard dated December 10, 1861, did violate said parole of honor. This at or near Milford, Johnson County, Mo., on or about the 18th day of December, 1861, where and when said Magoffin was captured in arms and in league with the enemies to said Government of the United States.

The judge-advocate then addressed the accused as follows: “You have heard the charges preferred against you; how say you, guilty or not guilty?”

To which he pleaded as follows:

To the specification, first charge, not guilty.

To the first charge, not guilty.

To the specification, second charge, not guilty.

To the second charge, not guilty.

Lieut. Col. E. B. BROWN, a witness for the prosecution, was duly sworn.

By the JUDGE-ADVOCATE:

Question. State your name and rank.

Answer. E. B. Brown, lieutenant-colonel of the Seventh Regiment of Missouri Volunteers.

Question. Are you acquainted with the accused ?

Answer. I am.

Question. Have you within the last two months had any business with the accused in your official capacity as an officer in the U. S. service? And if so state what that business was.

Answer. On or about the 6th day of December, 1861, I was stationed at Sedalia, Pettis County, Mo. At that time it was reported that the accused was in the vicinity of his residence, about twelve miles distant from Sedalia, making an effort to see his wife, who was dangerously ill. It was also reported that he was desirous

294 PRISONERS OF WAR, ETC.

of visiting her under the protection of the United States Government. At the intercession of friends of the Government, who were also friends of the accused, Col. Fred. Steele, of the Eighth Iowa, acting brigadier-general of the U. S. troops stationed at that post, ordered me to meet the accused at some point to be agreed upon and offer him a safeguard that would permit him to visit his family without molestation. In accordance with that order I met the accused at the residence of Col. James R. Hughes on or about the 10th day of December. In the interview, which lasted about half an hour, I agreed with him upon the terms under which he could meet his family and remain with them for a limited period, he giving me his verbal parole of honor that during that time he would commit no act against the Government of the United States or communicate any information he should come in possession of. I went with him to his own house, and after remaining there about an hour I left with him a written safeguard under the agreement previously made at the residence of Colonel Hughes. The safeguard was written in the usual form, and essentially as follows:

“A safeguard is granted to Col. E. Magoffin, protecting him in person and property until the 20th day of December, 1861. Officers and soldiers of the U. S. Army will obey this order, and in no way molest him or his family.”

It was signed by order of Col. F. Steele, commanding post at Sedalia, with my name and rank as acting aide to General Steele. My regular duties were as commissary and quartermaster of the Fifth Division of the Army of the Missouri. I had no conversation at that time with the accused after he entered his house. On December 15, 1861, it was reported to Colonel Steele that the accused desired an extension of his safeguard, and as the command was ordered to move on that day toward the Osage River, and would not probably return before the 20th he ordered me to leave another safeguard with Colonel Hughes, to be by him delivered to the accused if he chose to accept it. A copy of that safeguard or the original was sent some time after to headquarters of the department. On the night of December 19, 1861, a large number of prisoners were brought into camp at Clear Creek, about nine miles east of Warrensburg. Those prisoners were delivered into my charge, and amongst them was the accused. I was not personally present when the prisoners were taken. They were delivered to my charge by order of General Pope, as being a body of men or soldiers of the Southern Confederacy taken in arms at Milford on the afternoon of that day. The next day the command moved toward Sedalia the accused being with me most of the time, and he remained at Sedalia after the command arrived on his parole given by me and by order of Colonel Steele until the body of prisoners was sent to Saint Louis. When I met the accused first at Clear Creek on the morning following the capture I expressed my surprise to find him there and away from his home. He answered: “I have returned the safeguard with a letter of explanation. I was convinced there would be an attempt made to assassinate me and that my life was not safe at my own house.” He said that he was not in arms; that he was traveling with the body of men who had been captured for his own protection. At numerous times while we were together be reiterated the same sentiments, but acknowledged that he was among the prisoners and was at Milford at the time of the fight between our troops and the enemy. I asked him why he did not give notice to the commander of the post at Sedalia of his apprehensions of being assassinated, and either ask for a guard to protect him at his own house or come within the lines at Sedalia for protection. He replied that there seemed to be an unaccountable bitterness of feeling toward him and that he would not feel safe so long as he remained in that part of Missouri. The safeguards and paroles were given and received under the supposition that the accused was an officer in the army of General Sterling Price, which the accused claimed and acknowledged himself to be, although claiming no command at Milford when taken.

Question. In your statements you allude to two safeguards written for the accused on December 10 and December 15, 1861; were they both written by you, and were they identical in terms and language?

Answer. They were both written by me, but were not identical in language though they were in general terms. The last safeguard said it was given by order of General Halleck. The first did not cite General Halleck’s authority. The last safeguard was unlimited in duration.

Question. In the safeguard left by you with the accused on or about December 10 was there any prohibition in the safeguard or statement to the same effect against the taking up of arms or communicating with the enemy on the part of the accused?

Answer. It expressed in general terms that the accused should receive the protection of the United States Government so long as he remained a loyal citizen. It was

EARLY EVENTS IN MISSOURI, ETC 295

written in ink and much distress in the family There was but one piece of paper to be found in the house and that small, and the safeguard was necessarily expressed in few words. I do not recollect the exact language used.

Question. In your statement you say that on the 15th of December you were directed by Col. F. Steele to leave another safeguard in case the accused should determine to accept it. Do I understand you to say that the parole was given and the first safeguard delivered to the accused with a view merely to allow him to visit his family; or was it with the understanding that he was to become and remain a loyal citizen ?

Answer. When I met him at the residence of Colonel Hughes on the night of December 10, 1861, 1 said to him that I had been ordered by the commanding officer at Sedalia to offer him the protection of the Government, so that he could visit his family and remain at home if he chose to do so. I also stated that Colonel Steele had been advised that such was the wish of the accused. The accused replied: “I wish to see my wife; and as I have been exposed to the weather, sleeping out on the prairie at night, I am not in a condition to think intelligibly, as my mind is so harassed, and I wish ten or fifteen days to give an answer” (it was in answer to a proposition for a permanent safeguard), and that in the meantime he would give a decision. I then told him that I would give him the safeguard for the limited time he wished, and took his parole. At the time of the giving of the first safeguard the accused was not viewed in the light of a prisoner of war further than the giving of the safeguard and the receiving of the parole would constructively make him so; that he would be at liberty at the time the safeguard expired to leave his home aud place himself in the same position as before I met him—that is, as an enemy. The proposition to the accused to visit his family was volunteered by the Government.

Question. Would you recognize the safeguard last written by you if shown to you?

Answer. Yes, sir.

Question. Is this the safeguard? (Showing paper, marked B, and attached to these proceedings.)

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Exhibit B. [From OR Series II, Vol. 1, p. 357]

HEADQUARTERS FIFTH DIVISION, Sedalia, Mo., December 14, 1861.

Whereas, Ebenezer Magoffin, formerly a colonel in the Army of the Southern Confederacy, has given his parole of honor that he will not in any manner by word or deed aid, assist or give countenance to the enemies of the United States Government; and whereas, by order of General Halleck said Magoffin is to be permitted to remain at home or vicinity in the quiet unmolested pursuit of his usual peaceful occupations, I therefore order all officers and soldiers of the U. S. Army to give him protection, and by this safeguard he is protected in person and property so long as he remains in the quiet pursuit of his ordinary business in same manner as other loyal citizens of the United States.

By order of Col. F. Steele, commanding Fifth Division, Army of the West:

E. B. BROWN,

Lieutenant- Colonel, Quartermaster and Acting Aide-de- Camp.

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Answer. Yes, sir; this safeguard was written on the 15th. but dated back to the 10th, at the time when I received the parole. The object of so doing was to correct any supposed imperfections that might have existed in the first.

By the ACCUSED.

Question. How far is Hughes’ residence front the home of the accused ?

Answer. About ten miles, I should judge.

Question. Was the safeguard, the first one, written at Hughes or after you and the accused went to his house ?

Answer. After I went to the house of the accused.

Question. Did you give the paper to the accused in person after you wrote it?

Answer. I did not. I went to his room to give it to him, and he was holding his wife in his arms, who was supposed to be dying. I handed it to a member of his family—his daughter, I think. It was given in accordance with the agreement made at Colonel Hughes' house.

Question. Have you ever seen the first safeguard since you wrote it, and are you sure that anything was written in that paper about loyalty to the United States?

Answer. I have not seen it since I wrote it, and I have only a general recollection of its terms, and am not positive whether the word loyalty to the United States was used. I think it was.

Question. In the conversation you have already recited between you and the accused at Clear Creek, and afterward elsewhere, was anything said by the accused about the insufficiency of the safeguard to protect his property from the depredations of the soldiers of the United States? lf so, state what it was to the best of your recollection.

296 PRISONERS OF WAR, ETC.

Answer. There was no conversation that expressed an insufficiency of the safeguard. He stated that an officer who had been there with a small command, and to whom was presented the first safeguard that I left at his residence, doubted its validity when first shown to him, but afterward obeyed it By validity I mean genuiness. I do not know who the officer was. I staid at the house of Colonel Hughes the night of the 10th and until after breakfast on the morning of the 11th; and when on my return to Sedalia in company with Colonel Hughes I learned that there was a body of soldiers at the house of the accused who had ordered breakfast and refused to recognize the safeguard, I immediately turned back for the purpose of ascertaining in relation to it; and when within about a mile of the accused’s residence I met a man who I believe was a member of the family of the accused who told me that the officer and soldiers had left and had recognized the authority of the safeguard. I then turned back and pursued my journey.

Question. Did you not in your official capacity learn that the property of the accused was destroyed by the U. S. soldiers and his hogs slaughtered by them in spite of the safeguard?

Answer. I did not.

Question. In the last safeguard written by you you use the words in reference to the accused, “Ebenezer Magoffin, formerly a colonel in the Southern Confederacy.” What were the words in reference to the accused in the first?

Answer. I do not recollect.

Question. How long have you been stationed at or near Sedalia?

Answer. Since November 17, 1861.

Question. State to the court how long you have known the accused, what have been your means of knowing his character, and what that character is.

Answer. I met the accused once in August last, previous to December 10, 1861. I have known him by reputation particularly since the middle of July, 1861. 1 was in command of the U. S. troops at Jefferson City and on the line of the Pacific railroad west. In July and August of that year heard very often of the accused as being an active enemy of the Government and general reputation of being a bad man. I had opportunities during that time and during the time I was stationed at Sedalia this winter of learning more of his character. I have never been able to learn of any act of a marauding character or that was different from that pursued by other enemies of the Government in that part of the country during the tine. His reputation among Union men in Pettis County is that previous to the present war he was known as a high-toned, honorable gentleman.

Question. Are you able to state whether there did exist in the part of Missouri around Sedalia a bitter hostility against the accused’?

Answer. There is—among the less intelligent of the loyal home guards.

Lieutenant-Colonel FISCHER, a member of the commission, made his appearance during the session, and as soon as possible after he was notified of the fact; but not having heard the earlier part of the witnesses’ testimony and not being consequently qualified to vote or act in the present trial he was excused from being present.

The commission adjourned to meet to-morrow, Friday, February 7, 1862, at 10 a. m.

SAINT Louis, Mo., February 7, 1862—10 a. m.

The commission met pursuant to adjournment.

Present: Brig. Gen. David S. Stanley, U. S. Army; Col. R. D. Cutts, of the staff; Lieut. Col. John Scott, Third Iowa Volunteers; Capt. Lewis Marshall, Tenth Infantry, U. S. Army.

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The accused, Ebenezer Magoffin, also present.

The proceedings of yesterday were being read by the judge-advocate, when by the assent of the commission and the accused the further reading was dispensed with.

The examination of the witness, Col. E. B. BROWN, was resumed.

By the ACCUSED:

Question. Was or was not the accused regarded and treated by the officers of the United States in command at Sedalia and at other posts in Missouri as a belligerent of the grade of colonel in the ranks of the enemy?

Answer. He was.

Question. Had you any reason to doubt the status thus assigned to him?

Answer. I had not.

Question. Had you or had you not official information that the accused was in the battle of Carthage in arms against the U. S. forces in the capacity of aide to the governor of the State, Claiborne [F.] Jackson; that he afterward raised a regiment in the counties of Saline and Pettis, in this State, in virtue of a commission as colonel, under the proclamation of Jackson, or of his major-general, Sterling Price?

Answer. No information on the subject, official or otherwise.

Question. Where were you stationed at the time of the battle of Carthage ?

Answer. Jefferson City, Mo., which is sixty-four miles from Sedalia.

Question. What portion of this State did the home guards which you have referred to as bitterly hostile to the accused occupy ?

Answer. I know of it only in the vicinity of Sedalia.

Question. How far is it from Sedalia to Clear Creek? and how far from Sedalia to Warrensburg? How far from the residence of the accused is Clear Creek?

Answer. Sedalia to Clear Creek, twenty-six miles; Sedalia to Warrensburg, thirty-five miles; residence of accused to Clear Creek, I do not know the distance certain— I think about twenty-five miles.

Question. Did you or did you not at Otterville, in this State, in your capacity of an officer of the United States treat with the accused? If your answer be in the affirmative, state the capacity in which the accused was recognized by you and the general character of the treaty you made with him.

Answer. I did treat with him. He was recognized by me as a private citizen. I was at Otterville with my command about the 14th of August, 1861, where I met a committee of seven gentlemen, of whom the accused was one, sent for the purpose of making a treaty from a camp about twelve miles north of that place who the committee alleged were banded together in a private capacity for the purpose of protecting themselves against marauding bands of home guards and other parties claiming to be soldiers. The treaty was not as one between two belligerent parties. The committee disclaimed any wish, desire or intention of taking up arms against the Government of the United States and agreed to disband and go to their homes upon the issuing of orders preventing soldiers without any show of authority from arresting private citizens or taking their property. I issued the orders, sent about 1,000 copies to the camp from which the committee was sent and moved my command back to Jefferson City, Immediately on receipt of the orders the camp was broken up.

298 PRISONERS OF WAR, ETC.

Question. Had you ever seen the last safeguard sent by you to the accused from the time you sent it up to the period when it was shown to you yesterday by the judge-advocate?

Answer. I saw it with a letter that was directed to Colonel Hughes in which the safeguard was inclosed when returned.

Question. In whose hands were the safeguard and letter when shown to you, and when and where?

Answer. In the hands of Colonel Steele at Sedalia, about December 23, 1861.

By the JUDGE-ADVOCATE:

Question. How far and in what direction is the house of the accused from Milford where he was taken prisoner ?

Answer. I should think about fifteen miles, and the direction about northeast.

Question. Will you state whether within your knowledge there was any application direct or indirect on the part of those speaking for the accused or in his name to obtain for him a safeguard on giving his parole.

Answer. There was a direct application at Sedalia and at his residence. I do not know whether it was authorized by the accused or not.

Question. Was there no hostility toward the accused on the part of the intelligent loyal home guards, or was not that hostility general among all loyal citizens and soldiers ?

Answer. There seemed to be a marked personal interest and friendship on the part of the intelligent loyal citizens and home guards for the accused, but strongly condemned his course in connecting himself with the enemies of the Government.

Question. Do you know or have you reason to believe that the hostility of the loyal home guards or of any other soldier or citizen would lead them to rob or maltreat the accused whether he had or had not a safeguard?

Answer. I have no reason to believe that they would. I never heard him threatened by any body or person.

Question. Do you know of your own knowledge that the accused was a colonel in the service of General Price or of the Confederate States, or only from hearsay?

Answer. Only from hearsay. I do not know of my own personal knowledge

Question. State the date when the treaty was made with the committee of seven gentlemen and whether or not the accused informed you that he was a private gentleman or an officer in the service of General Price, or of the Confederate States.

Answer. On or about the 14th of August, 1861. I had no conversation with the accused at the meeting of the committee referred to. Maj. James B. Harris was the organ of the committee; and through him and in the presence of the entire committee I learned that the parties in the camp referred to did not wish to be considered in any other light than private citizens.

Question. Had you any conversation with the accused about August 14, 1861, in reference to his being a private gentleman and not an officer in arms against the United States?

Answer. I did not.

By the COMMISSION:

Question. In your interview with the accused was there anything said concerning the accused returning the safeguard should he change his intention of remaining at home?

Answer. There was not.

EARLY EVENTS IN MISSOURI, ETC. 299

Question. At the interview with the accused was anything said or agreed upon as to the accused reporting himself to the commander of the district or post, and if so was any time or place designated ?

Answer. There was a conversation relative to his meeting the commander of the post for the purpose of making an arrangement by which he could remain at home but no time or place agreed upon. Two days afterward I saw the accused at his house and he said that he would prefer not to go to the post for the purpose of the interview referred to, alleging as a reason that there was a bitter feeling against him and he feared that he would be subject to violence—at any rate to being annoyed.

By the ACCUSED:

Question. At that interview (the first) did the accused see or read or have read to him the first safeguard before you left his house.

Answer. He did not.

Question. You say there was something said in the first interview about the accused going to the commander of the post; where was that— at Hughes’ house or at the residence of the accused ?

Answer. At the house of Colonel Hughes.

Question. Did the accused at any time, either at the first interview or the second, abandon his expressed desire to take time of ten to fifteen days to consider what he would ultimately do as to remaining at home ?

Answer. He did not. I had no conversation with him in relation to that subject except at the first interview.

Question. At the second interview what seemed to be the condition of the mind of the accused ? I mean as compared with its condition when you first met him.

Answer. I could make no comparison, as in the second interview the deep affliction he was in seemed to absent all other feeling as he was at the funeral of his wife.

There being no further questions to ask the witness the testimony he had given was read to him and he then requested permission to add as follows:

In the first interview at the residence of Colonel Hughes his mind was so much distracted that he was unable to keep up a connected conversation, and so evident was the distress under which he was laboring that I was impressed with the idea that he was bordering on insanity and so expressed myself to Colonel Hughes.

JAMES R. HUGHES, a witness for the prosecution, was duly sworn.

By the JUDGE-ADVOCATE:

Question. State your name and rank.

Answer. James R. Hughes.

Question. Are you acquainted with the accused ?

Answer. I am.

Question. Do you or do you not know anything in regard to the reported giving of a parole by the accused ? and if so state the time, its terms and circumstances connected therewith.

Answer. I do. On the 9th day of December, 1861, I went to Sedalia to see if I could not get a parole for Mr. Magoffin, and after I had reached Sedalia I saw Colonel Brown and represented to him that I had been a practicing physician of Mrs. Magoffin. I told him that her case was a very critical one and that I very much desired that Colonel Magoffin should be enabled to get a parole; that I believed his wife would die; and represented the case in as humane light as I could— as I was justified in doing—that he might be with her. After holding said interview with Colonel Brown he immediately went to General Steele. General Steele and

300 PRISONERS OF WAR, ETC.

Colonel Brown returned to me and I related the same circumstances to General Steele that I had to Colonel Brown. General Steele’s reply to me was that if I could communicate with Mr. Magoffin and find out if Mr. Magoffin would consent to an interview with him that he would give him a safe conduct in and a safe conduct out if they did not come to terms. I returned from Sedalia through Georgetown, requested Mr. Ira Barnes to go to Mr. Hutchison, the father-in-law of Mr. Magoffin, and for him (Ira Barnes) and Mr. Hutchison to meet me at my house as soon as they could, which they did about 3 o’clock in the afternoon. I related to them the interview between General Steele, Colonel Brown and myself and requested Mr. Hutchison if he could communicate with Mr. Magoffin that I believed that General Steele would grant him terms to return to his wife that would be perfectly satisfactory to himself Mr. Hutchison told me that he could and that he would and let me know during that night. About 1 or 2 o’clock that night Mr. Hutchison came to my house and told me that Mr. Magoffin had consented to an interview with General Steele. I suggested that Mr. Magoffin should come to my house bcfore daylight and that I would report the designated place of meeting as being at my house. Mr. Magoffin arrived at my house before daylight that morning. On that morning about daylight I started back to Sedalia to communicate with General Steele. After I told him that Mr. Magoffin was desirous of said interview General Steele then remarked to me that he would have to telegraph to General Halleck to know if he could give him a parole without taking the oath. I had told him that Mr. Magoffin would not take the oath -- had not told him so that morning but previously. I waited at Sedalia during that entire day with a great deal of impatience, and I suppose it was about sundown when I called upon General Steele for the last time. He told me that he had not received any satisfactory answer to his dispatches. He had forwarded several that day so he told me. I urged upon him the necessity that if anything was done it must be done immediately. General Steele went into his office and handed me a piece of paper which he told me would give Mr. Magoffin the privilege of going home and of being protected. I did not read the paper. I immediately asked Colonel Brown to accompany me to my house which he readily consented to do. I then told General Steele that Colonel Brown was going with me. General Steele then authorized Colonel Brown to give Mr. Magoffin a parole or safe conduct or whatever it was, and at which time I handed back to General Steele the paper he had previously handed me. Colonel Brown and myself immediately ordered Colonel Brown’s buggy and went immediately out to my house at which place we found Mr. Magoffin. I took Colonel Brown up to the room in which Mr. Magoffin was and I immediately withdrew, staying away from the room as long as I believed it was necessary for them to come to an understanding. I then returned to the room, anxious that Mr. Magoffin should be at home as soon as possible with his wife; but they had not touched upon the question at all. As soon as I discovered that I started to withdraw again and Colonel Brown called me back. Colonel Brown then addressed Mr. Magoffin and asked him what it was he desired—that is as well as I can recollect. Mr. Magoffin replied he wished the privilege to go to the sick-bed of his wife in safety. Colonel Brown asked him for what length of time he desired to remain at home as well as I can recollect. Mr. Magoffin replied ten or twenty days; that within that time the condition of his wife would be terminated one way or the other. Colonel Brown replied that he should be privileged to do so. I suggested myself right then the point to Mr. Magoffin to take a perpetual parole or conduct or whatever you may call it—(upon explanation) I mean a safeguard. Mr. Magoffin replied that he was not in a condition of mind to determine upon that matter, and asked if he could have that privilege within the time of determining whether he would make it perpetual or not. Colonel Brown promptly responded yes. I immediately suggested that I did not wish to lose any time and told Mr. Magoffin to get ready and we would take him over to his house, which we did between the hours of 10 and 1 o’clock at night of the 10th. After we reached Mr. Magoffin’s house we found Mrs. Magoffin in a dying condition. Mr. Magoffin was at her bedside. Colonel Brown and myself were not disposed to disturb him. Colonel Brown called for pen, ink and paper and wrote the safeguard without Mr. Magoffin’s knowledge. The safeguard was a promise of protection of person and I believe property to Mr. Magoffin until the 20th of the month. After Colonel Brown and myself had remained there an hour or more he (Colonel Brown) handed me the safeguard and I handed it to Mrs. Isaac Hutchison, Mr. Magoffin’s sister-in-law. I told her of the importance of the paper and at a proper time for her to hand it to Mr. Magoffin; and shortly afterward we left and went to my house arriving there some time between 1 and 4 o clock in the morning. I do not know whether Mr. Magoffin ever saw the paper or not; but I took it for granted that he had. This occurred on Monday night, the 9th of December, but I don’t know whether it was before or after 12 o’clock at night.

Colonel Brown and myself arrived at my house about 10 or 10.30 p. in.; remained there not less than one hour and then started for Mr. Magoffin’s house, distant about three or three and a quarter miles. We were in a two-horse buggy; suppose it took

EARLY EVENTS IN MISSOURI, ETC. 301

us half an hour to travel the distance. Can’t tell exactly how long I was in the house before the safeguard was written. On the Saturday afterward (December 14) I received a verbal message from Mr. Magoffin desiring to see me and on that evening I rode out to his house. I was then at Sedalia. I saw Mr. Magoffin out at his hog-pen in company with Mr. Hardin. After I had been there some little time Mr. Magoffin told me that he desired permission to accept of his perpetual parole or safeguard or whatever else it was—for he and I considered it a continuation of the same that he had already received,—and asked me if I would obtain it for him. He told me that he did not consider himself safe in his present position; that troops had passed through his place that day and had killed a number of his hogs. I told him that I could get it for him. I returned to Sedalia that evening and reported to Colonel Brown and General Steele what Mr. Magoffin desired. The next morning quite early Colonel Brown handed me the perpetual parole, safeguard or whatever you may call it just on the eve of starting upon the Milford expedition. After they had started I made an effort to get a pass for myself from the provost-marshal which was refused me on the ground that orders had been issued that no person should be permitted to pass out of the lines. I then made a second application and told him that my business was with Mr. Magoffin, stating its character. He then ordered a guard to take me through the lines. I went directly to my own house, took tea and afterward rode over to Mr. Magoffin’s. Mr. Magoffin was sent for and I told him that I had his parole, safeguard or whatever it may be and I showed it to him, and he asked me to read it and I did so. He and I discussed the conditions that were imposed upon him by that. He asked me the question that if any of his relations or friends that had been engaged in Price’s army were to come to his house about mealtime could he allow them to eat. My reply was, “Do as I would do under just such circumstances—give them their dinner,” tell them he had given his parole and he would not be troubled with them any farther. After talking in general terms we separated and I went home leaving the paper with him.

The hour of 3 o’clock having arrived, the commission adjourned until to-morrow, Saturday, February 8, 1862, at 10 a. m.

SAINT LOUIS, Mo., February 8, 1862—10 a. m.

The commission met pursuant to adjournment, all the members present except Lieutenant-Colonel Fischer.

The accused, Ebenezer Magoffin, also present.

The proceedings of yesterday were being read by the judge-advocate when by assent of the commission and the accused the further reading was dispensed with.

The examination of the witness, JAMES R. HUGHES, was resumed.

By the JUDGE-ADVOCATE:

Question. Would you recognize the paper you allude to were you to see it?

Answer. I think I should.

Question. Is this the paper? (Showing the witness the paper marked B attached to these proceedings.)

Answer. Yes, sir; this is it.

Question. Did you or did you not have any conversation with or make any application to Colonel Steele or other officer of the United States in regard to giving a permit to the accused to visit his family or to stay at home before the 9th day of December, 1861? and if so state the character of the application.

Answer. I did not to General Steele in person but did have the conversation with and did make the application to Colonel Brown. I told Colonel Brown several days before the 9th that Mrs. Magoffin had requested me to see the authorities there at Sedalia if he could not return home and remain there in quiet and safety.

302 PRISONERS OF WAR, ETC.

Question. Had you any authority direct or indirect from the accused authorizing or approving of such application in the first interview you had with Colonel Brown on the subject ?

Answer. Upon a return visit of mine from north Missouri I called at Mr. Magoffin’s to see his wife and I found Mr. Magoffin in there. Just before I left his house I took him out and had a conversation with him; told him of his wife’s condition and asked him if I could make any arrangements for his return would he do so ? He told me that he would. There was nothing said as to the terms that I recollect of. The exact date of this conversation I do not recollect; it might have been two weeks or might have been four weeks before the 9th of December. The week preceding the 9th as well as I recollect I had another interview with Mr. Magoffin and told him that I did not believe he could get a parole or other paper heretofore alluded to without taking the oath of allegiance which I insisted upon his doing. After some little lapse of silence on Mr. Magoffin’s part he told me he could not take the oath.

Question. Did he at either of the above interviews express any desire or authorize you to apply for a permit or parole to see his family or remain for any length of time at home?

Answer. I think that in the last interview that he expressed himself that he would like to get a parole without taking the oath. That conversation did occur. I impressed upon him that he could not get a parole without taking the oath and he expressed some anxiety to receive the parole without the oath he and I believing right then that the matter was ended; but being at Sedalia on the 9th and still hearing of the sinking condition of his wife on my own responsibility I brought the matter up before Colonel Brown again.

Question. After your conversation with the accused on the 15th of December, 1861, did you have anything further to do in connection with the safeguard?

Answer. On the 18th of the month as well as I can recollect I received a letter from Mr. Magoffin with that paper inclosed. The letter was dated on the 16th as well as I can recollect, it having been delayed two days—one day at my house and one day at Mr. Hutchison’s. If the letter was dated on the 17th I received it on the 19th, as there were certainly two days’ interval between its date and receipt.

Question. Is this the letter you allude to? (Showing him paper marked C and attached to these proceedings.)

Answer. This is the letter. The letter and paper remained in my possession from the 18th until the Sunday morning afterward, the 22d. The reason why I did not return them was that General Turner was in command of the post and I thought it right and proper that I should hand them to General Steele. I returned them on the Sunday alluded to to Colonel Brown.

(See paper marked C.)

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Exhibit C. [From OR Series II, Vol. 1, p. 358]

PRAIRIE LEA, December 16, 1861.

Doctor HUGHES.

DEAR SIR: You were at my house last night and left with me a written pass. Previously I had accepted one which does not expire until the 20th day of this month. It was understood that I had until that time to deliberate the proposition made by Colonel Brown and yourself concerning the parole. I am deeply grateful to you both for the kindness you have shown me; it was generous and disinterested. But reliable information has reached me to-day from two sources that a conspiracy has been made to assassinate me in my home. Reluctantly I am compelled to leave it again. I therefore send you back the pass you left with me. I cannot accept it. I must express again my sincere gratitude to yourself and Colonel Brown for your kindness, and regret that circumstances have frustrated your friendly purposes and that I am compelled to leave a young and helpless family to the mercy of my enemies.

Truly, your friend,

E. MAGOFFIN.

-- o0o --

A notice having been served on the accused to produce the first safeguard given to him by Colonel Brown the accused stated that it was not in his possession. (See paper marked D attached to these proceedings.)

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Exhibit D. [From OR Series II, Vol. 1, p. 358]

In reply to the notice received by me from Col. P. D. Cutts, judge- advocate, to produce for the purpose of evidence the first written safeguard issued by Colonel Brown, I have to say that the paper is not in my possession or power and I am unable to produce it. It was not delivered to me by Colonel Brown and I am not certain that I ever saw it. If I ever had it it was lost among other papers of mine. My perturbation of mind at the period when the paper was written and the affliction which followed were such as to render me uncertain whether I ever saw it.

EBENEZER MAGOFFIN.

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By the ACCUSED:

Question. What was the state of mind of accused at the interview between him, Colonel Brown and yourself?

Answer. He appeared to me to be a man who was not entirely himself and I attributed it to want of rest and distress on account of the condition of his family.

Question. Have you in your evidence thus far given stated all that was said or done by accused at the interview at your house between him and Colonel Brown touching the arrangement made there by which accused was to go home and see his wife?

Answer. No; I have not stated all but all the important features that I can recollect, except that when I made the proposition for him to accept of his perpetual parole he put his hand up to his forehead and stated that he was not in a condition of mind to determine that matter; that everything appeared confused to him.

EARLY EVENTS IN MISSOURI, ETC. 303

Question. At that interview what if anything did the accused promise or pledge himself to do?

Answer. I could not say that he promised anything; I do not recollect that he did.

Question. You say that in going upstairs to the room in which Colonel Brown and accused were you found that they had not touched the matter of arrangement. How did you find out that fact?

Answer. They were talking upon other matters.

Question. After you, Colonel Brown and accused started for the house of accused and after the arrival of all at his home was there any conversation on the subject of the arrangement or its terms before the safeguard was written by Colonel Magoffin?

Answer. Not within my knowledge.

Question. Was anything said at your house by Colonel Brown or yourself as to the propriety or impropriety of making stipulations with the accused on account of the perturbed condition of his mind?

Answer. Not that I remember.

Question. Have you no recollection of being told by Colonel Brown that he considered the accused as on the verge of insanity?

Answer. After we had left Mr. Magoffin’s house on our return to my house Colonel Brown told me that he believed that Colonel Magoffin’s mind was seriously threatened.

Question. Was or was not the main object of the interview at your house to make an arrangement by which the accused could have the privilege to see his wife then supposed to be in extremis?

Answer. Yes, sir.

Question. After Colonel Brown and the accused did take up the matter of the arrangement were you present during the whole of the interview till the arrangement was made?

Answer. I am under that impression for the reason that the first question was on the part of Colonel Brown: “Well, Mr. Magoffin, what is it that you want?” Mr. Magoftin’s reply was to be privileged to return home to see his wife.

Question. Why did Colonel Brown and you go with Magoffin to his house?

Answer. It was known there were some scouts in that neighborhood and that Mr. Magoffin could not in all probability get to his house without we accompanied him. It was known to Colonel Brown and myself.

Question. Where and when was the privilege granted to the accused by Colonel Brown to go to his wife?

Answer. It was granted verbally at my home before 12 o’clock on Monday night, the 9th.

Question. State all who went from your house to Magoffin’s that night with the accused, and how they went.

Answer. The driver (George), Colonel Brown, Colonel Magoffin and myself.

Question. Was or was it not the object of Colonel Brown in thus going to insure the safe conduct of the accused to his home?

Answer. Yes, sir.

Question. Have you no recollection of the accused entering into terms at your house with Colonel Brown that he would not for a limited period take up arms against the United States or give information to the enemy?

Answer. The mere fact of my understanding that such would be the case, that I don’t remember that it was spoken of. I took it for granted that that was the understanding; otherwise I would not have had anything to do with it.

304 PRISONERS OF WAR, ETC.

Question. You say that at the hog-pen on Saturday accused said he desired to accept a perpetual parole. Did he state on what terms or conditions he would take it ?

Answer. The conversation there at the hog-pen commenced by his telling me that the condition of his family was such that it was a necessity for him to remain at home; but that as to any requirement on the part of the Government from him I do not remember that anything was said.

Question. Did or did not the accused in that context say that he would be glad that you would get one for him so that he might examine it, or words to that effect?

Answer. I do not remember that be did.

Question. Was Mr. Hardin present at the conversation?

Answer. He was.

Question. In that conversation was there anything said by accused of his willingness to take the oath of allegiance to the Government of the United States?

Answer. No, sir; not that I remember.

Question. When you brought the paper to the accused next day and he asked you to read it to him you say a discussion arose as to its nature and effect. How did that discussion result?

Answer. It was entirely as I remember upon how he should treat his returned friends and relations and after my explanation he made no response.

Question. Did he read the paper himself while you were there or did he have it in his hands before you left?

Answer. He did not read it while I was there. After I had finished reading it he or myself laid it on the mantel. It was upon the mantel and I remember telling him that it might fall in the fire. He then took it off the mantel and I never saw it afterward until I received it inclosed in his letter at Sedalia.

Question. In that conversation at the hog-pen or in that the next day when you brought to him the paper was there anything said by the accused or yourself about the expiration of the ten days he had asked to think of the matter?

Answer. No; not that I remember.

Question. State to the commission the character of the accused and your means of knowing what that character is.

Answer. I have known Mr. Magoffin for four years personally and previously to that time for a number of years from character. My personal knowledge of him is that of a perfect gentleman. I have never heard directly or indirectly any personal charges made against him or intimations; and as to his friendship I believe he would have suffered martyrdom rather than have knowingly placed me in a delicate position in the matter.

Question. You have spoken of the condition of mind of the accused at the time the arrangement was made at your house with Colonel Brown and have said he was then not entirely himself. Do you know what view the accused had of that arrangement? Confine yourself in your answer to the period before he was charged with breaking his parole.

(The above question being objected to by a member of the commission the room was cleared for deliberation, and when the door was reopened the president announced the decision of the commission to be that the question should not be put.)

Question. Was or was it not distinctly agreed at your house by Colonel Brown that the accused was to have ten days to determine what he would ultimately do with the Government of the United States in the way of arrangement? If your answer be in the affirmative say whether

EARLY EVENTS IN MISSOURI, ETC. 305

at any time after that within the limit of ten days did you ever hear the accused say that he abandoned or waived that right in any of the negotiations you had with him.

Answer. Yes; it was agreed. To the second question he did not.

Question. State to the commission the contents of the paper written by Colonel Brown at the house of the accused on the night of the 9th of December as accurately as you can give them.

Answer. I read that paper but once and as well as I recollect it promised Mr. Magoffin protection in person and property and imposed upon him an obligation not to give aid or comfort to the enemy and not to take up arms against the Government, and to extend until the 20th of the month. I think it was signed by General Steele, commanding officer, by Colonel Brown.

Question. How did that paper impose any obligation upon the accused ?

Answer. Only by its face.

Question. This paper carried by you to the accused (the last safeguard) says: “Whereas Ebenezer Magoffin, formerly a colonel in the army of the Southern Confederacy, has given his parole of honor that he will not in any manner by word or deed aid, assist or give countenance to the enemies of the United States.” Do you know whether accused had given such parole? If so where did he give it and to whom ?

Answer. I do not know of his having given such parole unless by his acceptance of the safeguard be the giving of a parole.

(The above reply being objected to by the accused the commission cleared the room for deliberation, and when the door was reopened the president announced the decision of the commission to be that the reply should be recorded with the words “As I considered it” stricken out.)

Question. Do you know whether or not there existed in and around Sedalia about that time a bitter personal hostility against the accused entertained by the home guard or soldiers of the U. S. forces?

Answer. I can’t say just at that time; but previous there was and I would not suppose that it had died out.

It being 3 p. m. the commission adjourned to meet on Monday, February 10, at 10 a.m.

SAINT Louis, Mo., February 10, 1862—10 a. m.

The commission met pursuant to adjournment, all the members present with the exception of Lieutenant-Colonel Fischer.

The accused, Ebenezer Magoffin, also present.

The proceedings of Saturday, February 8, were being read by the judge-advocate when at the suggestion of the commission and the accused the further reading was dispensed with on the ground that the entire day’s proceedings, the testimony of the witness, James R. Hughes, would during the morning be read to him and to the commission.

The examination of JAMES R. HUGHES was resumed.

By the ACCUSED:

Question. Do you know whether the accused was commissioned as a colonel in Price’s army, or raised a regiment, or in any capacity acted as an officer belonging to that army ? If so state what you know

20 R R—SER II, VOL I 306 PRISONERS OF WAR, ETC.

Answer. I do not know that he was commissioned, but I saw him at the head of some 70 or 100 men in Pettis County and they called him major. I saw the recruits go to his house day by day for several days either in July or August of last year. It may have been earlier. I have heard some of his own men since that time call him colonel.

Question. Do you know whether the accused was at the battle of Carthage and whether he there acted as an aide to the then governor, Claiborne F. Jackson ?

Answer. I do not know that he was at the battle of Carthage from any other source than from the accused who told me on his return that he was there. I do not know that he was aide to Claiborne F. Jackson.

By the JUDGE-ADVOCATE:

Question. In your reply to question No. S of the accused you express your assent that the main object of the interview at your house was to make an arrangement by which the accused could have privilege to see his wife, then supposed to be in extremis. Was or was it not previously understood what would be the character of the arrangement? And was or was not the meeting held merely with a view to carry out that arrangement?

(To the last question the prisoner opposes the objection that it was leading, and he submits that as the commission has already decided that the accused cannot on cross-examination ask a leading question surely the judge-advocate cannot ask his own witness a leading question. The commission being cleared for deliberation and the objection to the last question being duly weighed by the commission the door was reopened and the president announced the decision of the commission to be that the question should stand with the addition “Was or was it not previously understood,” &c.)

Answer. In my interview with Mr. Hutchison and Mr. Barnes I sent word by Mr. Hutchison that I had no doubt that Mr. Magoffin could by giving his parole get to return home and see his wife; but there was nothing that passed between Mr. Magoffin and myself until the meeting at the hog-pen.

Question. In your reply to question 14 of the accused you say that the mere fact of your understanding that such would be the case—that is that the accused was not to take up arms against the Government or give information to the enemy within the ten days—that you do not remember that that matter was spoken of. During the time that you were present at that interview between Colonel Brown and the accused did you hear or did you not all the conversation, or was there any time when you were not paying attention to it ?

Answer. I heard it all I think. From the interest I felt in the interview I heard it all of course.

There being no further questions to ask the witness the testimony he had given was read to him by the judge-advocate, and before retiring he requested permission to add to his answer to question 24, by the accused, the following: “Not until I received his letter” (marked C).

The witness was here dismissed.

The judge-advocate then introduced an attested extract (marked E and attached to the proceedings) from the report of General John Pope to the headquarters of the Department of the Missouri in regard to the operations of the army under his command previous to and at the time of the surrender of Colonel Robertson and his command at or near Milford, as evidence to show the date of said surrender; that the accused was one of the prisoners taken at said surrender; and that the said command was in armed opposition to the United States Government.

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Exhibit E. [From OR Series II, Vol. 1, pp. 358-359]

HEADQUARTERS DISTRICT OF CENTRAL MISSOURI,

Capt. J. C. KELTON, Otterville, December 23, 1861.

Assistant Adjutant- General.

CAPTAIN: I have the honor to report that having replaced by troops from La Mine the garrison of Sedalia I marched from that place on Sunday, the 15th instant, with a column of infantry, cavalry and artillery numbering about 4,000 men.

On the morning of the 18th Lieutenant-Colonel Brown’s forces rejoined the command. Knowing that there must still be a large three of the enemy north of us I moved slowly on the 18th toward Warrensburg, and when near that town the spies and scouts I had sent before marching from Sedalia in the direction of Lexington, Waverly and Arrow Rock reported to me that a large force was marching from the two latter places and would encamp that night at the mouth of Clear Creek, just south of Milford. I posted the main body of my command near Warrensburg and Knobnoster to close all outlet to the south between those two points and dispatched seven companies of cavalry, five of the First Iowa and two of the Fourth Regular Cavalry, after-

EARLY EVENTS IN MISSOURI, ETC. 359

ward re-enforced by another company of regular cavalry and a section of artillery, all under command of Col. J. C. Davis, Indiana volunteers, to march on the town of Milford so as to turn the enemy’s left and rear and intercept his retreat to the southeast, at the same time directing Major Marshall, with Merrill’s regiment of horse, to march from Warrensburg on the same point turning the enemy’s right and rear and forming a junction with Colonel Davis. The main body of my command occupied a point four miles south and ready to advance at a moment’s notice or to intercept the enemy’s retreat south.

Colonel Davis marched promptly and vigorously with the forces under his command, and at a late hour in the afternoon came upon the enemy encamped in the wooded bottom-land on the west side of Blackwater opposite the mouth of Clear Creek. His pickets were immediately driven in across the stream, which was deep, miry and impassable except by a long narrow bridge which the enemy occupied in force as is believed under Colonel Magoffin. Colonel Davis brought forward his force and directed that the bridge be carried by assault. The two companies of the Fourth Regular Cavalry being in advance, under the command respectively of Lieutenant Gordon and Lieutenant Amory, were designated for that service and were supported by the five companies of the First Iowa. Lieutenant Gordon, of the Fourth Cavalry, led the charge in person with the utmost gallantry and vigor, carried the bridge in fine style and immediately formed his company on the opposite side. He was promptly followed by the other companies. The force of the enemy posted at the bridge retreated precipitately over a narrow opening into the woods where his whole force was posted. The two companies of the Fourth Cavalry formed in line at once, advanced upon the enemy and were received with a heavy volley of small-arms, muskets, rifle and shotguns. One man was killed and eight wounded by this discharge, with one exception all belonging to Company D, Fourth Cavalry, Lieutenant Gordon. Lieutenant Gordon himself received several balls through his cap. Our forces still continuing to press forward and the enemy finding his retreat south and west cut off and that he was in presence of a large force and at best could only prolong the contest a short time surrendered at discretion. His force reported by the colonel commanding consisted of parts of two regiments of infantry and three companies of cavalry, numbering in all 1,300 men, among whom there were three colonels (Robertson, Alexander and Magoffin), one lieutenant-colonel (Robertson) and one major (Harris) and fifty-one commissioned company officers.

* * * * * * *

I am, captain, your obedient servant,

JOHN POPE,

Brigadier- General, Commanding.

-- o0o --

EARLY EVENTS IN MISSOURI, ETC. 307

The accused objected to the introduction of the above-mentioned extract as evidence for the reasons he stated in a paper he presents (marked F), which is attached to these proceedings.

-- o0o --

Exhibit F. [From OR Series II, Vol. 1, p. 359]

The accused objects to the paper read by the judge-advocate purporting to be an attested copy of an extract from the official report of General Pope to the [assistant] adjutant-general, Kelton—first, because it purports only to be an extract; second, because it is not evidence of the facts therein stated; third, because it is ex parte and can not be evidence against the accused; fourth, because it is only competent testimony to prove the fact that General Pope made a report.

E. MAGOFFIN.

-- o0o --

The commission being cleared for deliberation the reasons stated by the accused were duly weighed, the door reopened and the president announced the decision of the commission to be that so far as the extract referred to the point mentioned by the judge-advocate it was evidence and should be admitted as such.

WILLIAM SATTERWHITE, a witness for the prosecution, was duly sworn.

By the JUDGE-ADVOCATE:

Question. State your name, age, occupation and residence.

Answer. William Satterwhite is my name; age 23; clerk in a grocery in Georgetown; residence is in Georgetown, Pettis County, Mo.

Question. Have you any knowledge of any disturbance that occurred in Georgetown in which a soldier or soldiers in the U. S. service were wounded or killed? And if so state all you know about it.

Answer. I remember a disturbance occurring at Georgetown—some time about the latter part of August I think it was. I went to the door from hearing some noise in the street—did not know what it was—and saw three U. S. soldiers on horseback just coming around the corner, and I looked across the street and saw Mr. Magoffin standing right beside his horse—or was walking to his horse, I am not certain; but he was near his horse. I saw him raise his gun to his face and heard the report, and saw it pointed in the direction of the soldiers at the place the soldiers had got to at that time. I then turned and went in the house and just as I got in the house—or a second or two after I got in the house—I heard the report of another gun when I came back to the door, but I don’t know how long I was in the house. I saw a man in the act of falling off his horse; a negro was helping him off his horse. He keeled over to one side before the negro touched him. I went over then as soon as I shut my door, and went across the street. It was somewhere near fifty yards from my door to the spot where the man was taken off his horse. When I got there he had been taken in the wagon-maker’s shop and I did not get to see him. I then went from there up the street to old man Jackson’s and there I found the doctor working with another man who was wounded—his name was Wheat who was wounded—and after leaving there I went home and got a pitcher of ice-water and took it back to him, and then from there I came down to the house where this man was taken off his horse and they told me there he was dead. I did not get into the house or get to see him at all. I do not remember anything else that I did or saw, as by that time the whole streets were crowded with men on horseback—some our own citizens, some U. S. soldiers and some home guards. Do not know whether the men who were wounded were the men who came around the corner. The man who died there or whom I saw falling off his horse was dressed in uniform as other soldiers. The man who was wounded had his clothes off or down, and the doctor was working with him. The man was wounded in the back. There was such a crowd and I was in such a hurry that I could not tell exactly. I did not see the wound at that time, and indeed I don’t know that I ever did see it although I sat up with him several nights. I was so sick when the wound was dressed I had to leave the house; or if I staid in the house I did not look at the wound. The man lived and was there over two weeks perhaps three weeks, and might have been longer, and left Georgetown. It was about two weeks it was necessary to sit up with him at night, when he got well enough to walk about the room before he left. The man wore soldier’s clothes when he got well enough to walk about.

Question. Had you known the accused and had you seen him often ?

Answer. I had known him at that time some eighteen months and had seen him two or three times a month.

Question. How far were you off from the accused when you saw him with his gun in hand?

Answer. I suppose I was about thirty or thirty-five yards.

308 PRISONERS OF WAR, ETC.

Question. State in what direction were the three soldiers coming when you saw the accused point his gun at them.

Answer. They were coming sort of toward him. They were coming from an eastern direction and he was on the south side of the street.

Question. Were the soldiers in the public street and at what rate were they moving?

Answer. They were in the main street and in a pretty fast lope.

Question. Was the accused in front of them when he fired or on the side of the street?

Answer. He was on the side of the street and not directly in front of them.

Question. How far off the main street was the accused standing ?

Answer. Somewhere from ten to twenty feet as well as I recollect.

Question. If the soldiers had continued their ride up the main street would the accused have been in the way?

Answer. No, sir; he would not have been in their way at all.

Question. Was the accused standing alone?

Answer. I do not remember seeing any person else by him.

Question. Were there any citizens or other persons about the street in the immediate vicinity of where the accused stood when he fired?

Answer. There were a good many citizens—about fifteen—standing around the store and in front of the street when I came to the door. I do not know how many or whether there were any opposite the street where the accused was.

Question. Did you hear any report of fire-arms before the first one heard by you as mentioned in your statement?

Answer. No, sir; I did not.

Question. How was the accused dressed?

Answer. He was dressed in common citizens’ clothes; had on no soldiers’ clothes; nothing particular about his dress; no badges or rosettes; I did not see any.

Question. When you saw the accused raise his gun and point it at the soldiers did you see any smoke or the flash?

Answer. I can’t say whether I saw any smoke or not. I just heard the report and supposed it was no other gun but his.

Question. Are you quite certain that the report came from the gun in the hands of the accused?

Answer. Well. I can’t say that I know it did but I can’t say where else it came from.

Question. Was the accused standing openly on the side of the street or was any attempt at concealment made?

Answer. He was standing openly in the street; no attempt at concealment.

Question. Before the time of the shooting were there any rebel soldiers in the street or town or armed bodies about?

Answer. I did not see any armed bodies about but there were some eight or ten men in our store wanting to get some buckshot. They were dressed in citizens’ clothes and could not tell what they were.

Question. Did you see the accused at any time that day before you saw him with his gun pointed?

Answer. I do not think I did.

Question. At about what time of the day did the occurrence alluded to take place?

EARLY EVENTS IN MISSOURI, ETC. 309

Answer. It was in the afternoon; can’t recollect exactly; but could not have been long after 12 o’clock.

Question. What became of the body of the man whom you saw helped from his horse by the negro?

Answer. I never saw the man after he was taken off his horse by the negro. I was taken away an hour or two afterward to Sedalia.

Question. Describe the gun the accused had in his hand if in your knowledge?

Answer. I can’t do it. I just saw it was a gun; looked like a common-sized gun not a musket; can’t say whether it was a shot-gun or a rifle; whether it was a single-barrel or double- barrel gun.

By the ACCUSED:

Question. What sort of a grocery was that and in what capacity were you acting there?

Answer. We had at that store tobacco, whisky, cigars and some little hardware. I was clerk there.

Question. Will you describe the relative positions of the accused and the three soldiers on horseback when you first saw them?

(He makes a diagram to show the positions of the parties. Marked 6 and attached to these proceedings.)

The hour of 3 p. m. having arrived adjourned until to-morrow, February 11, 1862, at 10 a. m.

SAINT LOUIS, Mo., February 11, 1862—10 a. m.

The commission met pursuant to adjournment, all the members present with the exception of Lieutenant-Colonel Fischer.

The accused, Ebenezer Magoffin, also present.

The examination of the witness, WILLIAM SATTERWHITE, was resumed.

By the ACCUSED:

Question. Were the three soldiers on horseback armed? If so state how armed.

Answer. I do not remember whether they had sabers or not. I did not notice particularly what they had.

Question. State whether or not the three mounted soldiers were followed by other mounted soldiers. If so state how many.

Answer. I did not see any at that time.

Question. At the time of the first time observed by you had the mounted soldiers passed your door?

Answer. No, sir; they had not.

Question. When you saw the gun raised state whether you did or did not immediately go back into the grocery from the fight?

Answer. I did not go into the grocery until I heard the report. I then went into the grocery to get out of the way for fear they should shoot me.

310 PRISONERS OF WAR, ETC.

Question. State whether or not before accused raised his gun some person or persons in the crowd did not cry out to accused that the cavalry or soldiers were after him?

Answer. I did not hear it if they did.

Question. Can you give us no idea of the character of the noise or disturbance which caused you to go to the door

Answer. I cannot, sir. I don't know what caused me to go to the door.

Question. You say the street was at a certain time filled with soldiers and citizens. State whether the soldiers were on horseback; and were they armed?

Answer. Yes, sir; they were; and were on horseback, and had sabers I know, and pistols I think.

Question. Did you see any soldier fall or reel in his saddle at the first fire?

Answer. No; I did not at the first fire.

Question. Do you know who fired the second time?

Answer. I do not.

Question. When you went to the door after hearing a second report of firearms did or did you not see a considerable number of soldiers on horseback galloping up the street?

Answer. I don’t know whether I saw any at that time or not—the second time I went to the door.

Question. Where did the mounted soldiers you saw in numbers come from—up the street, down the street or from across the street or elsewhere?

Answer. I don't know where they came from; they were all up around me before I knew where they came from.

Question. State whether or not the town of Georgetown was surrounded that day before the time of the shooting of which you have spoken by a large cavalry force of the United States for the purpose of capturing the accused?

Answer. If it was I did not know anything about it.

Question. Did you or did you not hear more than two reports of fire-arms during the disturbance?

Answer. I do not remember of hearing more than two.

Question. Do you know whether in point of fact the accused was taken prisoner at that time in Georgetown by the forces of the United States?

Answer. I saw him on horseback after that on the same day going with the troops to Sedalia.

Question. How long was this after the occurrence you have related?

Answer. I do not remember how long it was; it was not a great while; it was not sundown it was in the afternoon some time.

Question. How far is Kidd’s hotel from your grocery and is it in sight of your grocery?

Answer. It is in sight of our grocery, and is something over 100 yards from grocery on the south side of the street.

Question. Did you not see a crowd of soldiers around that hotel shortly after the firing?

Answer. I did.

EARLY EVENTS IN MISSOURI, ETC. 311

Question. How soon after the events you have related was it that you were taken, and where were you kept till carried off for Sedalia, and by whom were you taken?

Answer. I don’t know exactly how long it was; it might have been half an hour or it might have been an hour. Was kept on a horse. Soldiers came to the grocery and took me and carried me in back of Kidd’s Hotel by the alley east of the hotel.

Question. What were you taken for?

Answer. Taken for a witness I suppose. I don’t know what I was taken for.

Question. Could you see what was going on at the hotel from the place they kept you at? If not were you in hearing distance?

Answer. No, sir; after they took me there they immediately took me out on another street where I could not see the hotel. I was at hearing distance at a still time but owing to the noise in the street I could not hear anything at that distance.

Question. Did you or did you not know that the accused was then in the hotel and that it was surrounded by the U. S. forces for his capture?

Answer. I did not know where he was. I did not know that the soldiers were there for that purpose but supposed so, as heard some one say they were hunting for the man who shot at the soldier.

Question. State if you know whether or not the accused with a portion of his force was at that time engaged in getting up clothing and provisions in the neighborhood of Georgetown for Price’s army.

Answer. I don’t know anything about it if he was.

Question. The men who asked for buck shot at your grocery that day before the disturbance, were they or were they not some of the men of the accused?

Answer. I don’t know whose men they were.

Question. Did you know them?

Answer. I did not.

Question. Did they get the buckshot and if not why?

Answer. No, sir; I don’t think we had any in the house at that time.

Question. How many soldiers do you suppose you saw that day in Georgetown?

Answer. I suppose there were over fifty; there might have been a hundred; I don’t know. I have not much idea of crowds especially at such times.

Question. Before that day were there any U. S. cavalry stationed at Georgetown?

Answer. No, sir; I think not.

Question. Had you or not seen the accused in or about Georgetown for some time previous to that day? State how long.

Answer. I do not know how long it was before that day I had seen him. He might have been there without my seeing him.

Question. When and where were you released after you were taken into custody, and were you at any time informed why you were taken?

Answer. They took me to Sedalia and kept me there that night, and I went with them the next day on the road from Sedalia to Lexington and encamped with them that night and then the next morning they released me and I returned home. They told me they wanted me for a witness.

Question. Where was the accused then and what became of him?

Answer. I don’t know where he was; I did not see him.

312 PRISONERS OF WAR, ETC.

Question. Were there any threats uttered against you after your arrest and before your release in relation to your testimony? If so state what they were and by whom made.

Answer. If there were any threats against me I never heard them.

Question. Have you not stated that threats were made by those who held you in custody as to your giving evidence?

Answer. No, sir; I have not.

Question. At any time since your release have or have not some of the home guard made threats to you concerning the giving of your testimony?

Answer. I do not remember any threats being made against me or anything about it.

Question. Can you state whether any of the home guard about Georgetown have threatened the life of the accused ?

Answer. I can’t say whether I ever heard any of them threaten his life. I have heard them talk about him a good deal, but whether they ever threatened his life or not I don’t know. I don’t remember what they did say.

There being no further questions to ask the witness, the testimony he had given was read to him by the judge-advocate, and after the reading was finished the witness requested that his testimony might be explained and corrected in the following particulars:

In his reply to question 21 by the accused he wishes to add:

I did not know at that time that I was wanted for a witness but was told so afterward.

In his reply to question 17 of the judge-advocate he wishes to add:

That the men who were in there I supposed to be Magoffin’s soldiers but I did not know whether they were or not; they did not say that they were.

The witness was then dismissed.

JAMES R. HUGHES, a witness for the prosecution, was recalled.

Question. Do you or do you not know anything in regard to a disturbance that occurred at Georgetown, Pettis County, Mo., in which a soldier or soldiers of the United States was or were killed?

Answer. I was not in Georgetown that day but at Sedalia. I saw Mr. Magoffin when he was brought in by some of Colonel Marshall’s men. I know nothing of the killing.

Question. Had you or had you not any conversation on or about that time with the accused on the subject of the death of one or more soldiers in the U. S. service who were reported to have been killed in Georgetown about that time ?

Answer. Yes, sir; I had. Well, sir, Mr. Magoffin being a friend and neighbor of mine as soon as I heard he was arrested I sought from Colonel Marshall a permit to visit Colonel Magoffin, giving as my reasons I wished to take home any message or have arranged any business he might desire. He gave me the permission and accompanied me in person. Mr. Magoffin in that interview told me of the shooting at Georgetown; how he came there; what he came for and then the difficulty that arose afterward; and told me that if he had not believed that they were home guards he would not have surrendered himself. I had another interview at Lexington to the same effect, and our interviews were always in the presence of officers and our conversation was restrained.

Question. What did he say about the shooting?

EARLY EVENTS IN MISSOURI, ETC. 313

Answer. I don’t know that he said anything he taking it for granted I knew of it and that he would not have shot the two several times on that occasion if he had not supposed they were home guards. He certainly said he shot twice—either at that interview or some subsequent interview.

Question. Did the accused tell you that he shot twice at that interview or some subsequent one?

Answer. I could not say which.

Question. Did the accused say anything at either interview about the effect of his shot ?

Answer. Not that I remember.

Question. Will you state the date of the two interviews?

Answer. Somewhere about the latter part of August, if the surrender of Lexington was on the 19th of September.

By the ACCUSED:

Question. What did the accused say he went to Georgetown for that day?

Answer. He went after a pair of shoes or boots and tobacco.

Question. Did he say whether the boots and tobacco were for himself or for his men ?

Answer. If I remember right it was for a pair of boots or shoes for Charlie Hardin, his son-in-law.

Question. In the interview or interviews of which you have spoken state whether the accused did or did not say that he shot because he believed his own life was in danger.

Answer. Yes, sir; every time the matter was spoken of he would make that declaration.

Question. Did or did not the accused speak of the violence of the home guard toward him and do you not know that they had threatened his life ?

Answer. Yes, sir; he did; and without being able to specify any particular person I know his life was threatened by them.

Question. State if you know whether a U. S. cavalry force was dispatched that morning to Georgetown to surprise and capture the accused and his men.

Answer. I know that there was a detachment of U. S. cavalry to go to Georgetown but do not know to capture whom.

Question. Do you know of Captain Montgomery, of the home guard, going to the house of the accused with a party of armed men ? If so state what you know of it.

Answer. I know of Captain Montgomery’s men headed by Captain Cook going to Mr. Magoffin’s house in search of Mr. Magoffin. This was at least two or three weeks before the transaction at Georgetown. They were what are called home guards, and were armed all of them. There were somewhere between 300 and 500 in number, and Lieutenant-Colonel Grover was with them, who was also of the home guards as I understood it at the time. They examined the house, kitchen, pantries and smoke-house and negro cabins. I was there and just looked on.

Question. Did you hear any firing or know of any depredations committed ?

Answer. I heard no firing that I remember, and saw no depredations.

Question. Did you or did you not hear Captain Cook, the commander of the expedition, say anything about depredations there committed by his men ? If so state what.

314 PRISONERS OF WAR, ETC.

Answer. I heard him state that he had gone to Mr. Magoffin’s smoke-house and found it almost empty, and he had examined the premises generally and was astonished to find that Mr. Magoffin was so poor a man, and that he (Cook) did not take any meat but that he had publicly and officially declared the entire property of the accused confiscated. That was all the damages I know. He gave as his reasons for not taking bread and meat there that there was not more than enough left for his family.

Question. Did Captain Cook state the object of the expedition to the house of the accused and the design in going in so large a force? If so state.

Answer. He told me it was for the purpose of arresting Mr. Magoffin and his company. He told me this the day before.

Question. Did the accused at either of the interviews speak of his capture and of terms and conditions of his surrender at Kidd’s Hotel? If so state what he said.

Answer. I cannot state whether it was Mr. Magoffin or who told me that he had delivered himself up as a prisoner of war. Mr. Magoffin may have told me so or it may have been some of the others.

Question. Do you know who commanded the detachment of cavalry sent to Georgetown the day of the shooting?

Answer. I understood it was Lieutenant-Colonel Day.

Question. Did the accused in either of the interviews you have referred to say why his course would have been different at Georgetown if he had known the force to have been U. S. soldiers?

Answer. Yes, sir; that with U. S. soldiers he would have felt himself safe. I told him at Lexington that one of the men that was wounded would recover and he seemed immensely delighted.

Question. State if you know whether at and before the transaction at Georgetown the accused was or not engaged with his company in procuring supplies and clothing for the army of Price?

Answer. I know that he was recruiting men but whether he was getting arms or supplies 1 do not know.

By the COMMISSION:

Question. Did any of the home guard in that vicinity or county wear the uniform of soldiers at the time of that transaction?

Answer. I cannot tell whether it was before or after; afterward they were in uniform but my impression is that they were not in uniform; they had tents and arms but I think ununiformed. I am satisfied they were not in uniform.

Question. Were the troops you met in Sedalia all in uniform?

Answer. Yes, sir; except a portion of the home guard. Marshall’s cavalry were in uniform, and Grover’s company who were with them were not in uniform.

By the ACCUSED:

Question. Do you know whether the accused had been for two months in camp on Blackwater, and whether he had been for some time before the affair at Georgetown away from that part of the country—that is away from Georgetown?

Answer. I know of no encampment on Blackwater. I know of an encampment at Heath Creek on his place. I think he was away; my memory serves me that. I know he was away. I learned he was in Cooper County.

Question. Do you know whether the accused had an opportunity of knowing about the time of the Georgetown affair and about ten days before it whether the home guard were uniformed or not?

Answer. I do not know, sir.

EARLY EVENTS IN MISSOURI, ETC. 315

There being no further questions to propose to the witness the testimony he had given was read over to him by the judge-advocate and he was dismissed.

The hour of 3 o’clock having arrived the commission adjourned until to-morrow morning, Wednesday, February 12, l862, at 10 o’clock.

SAINT Louis, Mo., February 12, 1862—10 a. m.

The commission met pursuant to adjournment, all the members present with the exception of Lieutenant-Colonel Fischer.

The accused, Ebenezer Magoffin, also present.

The proceedings of yesterday, Tuesday, were being read to the commission by the judge-advocate when at the suggestion of the commission and the accused the further reading was dispensed with for the reason that the entire day’s proceedings, being the testimony of William Satterwhite and James R. Hughes, were read over yesterday to the witness by the judge-advocate.

JOSEPH SIMPSON, a witness for the prosecution, was duly sworn.

By the JUDGE-ADVOCATE:

Question. State your name, occupation and where you reside.

Answer. Joseph Simpson; was a merchant; and reside at Buncombe, Pettis County, Mo.

Question. Have you or have you not any knowledge of a disturbance that occurred at Georgetown, Pettis County, in which a soldier or soldiers in the service of the United States were killed? and if so state what you know about it.

Answer. Yes, sir. Well, I was in there (Georgetown) when it occurred. I seen it. Well, I saw him shoot a man and he died instantly afterward. That is all I know or believe.

Question. Are you acquainted with the accused, Ebenezer Magoffin; and if so have you seen him often before?

Answer. No, sir; I saw him when it occurred. I don’t know him. Had not seen him often before. I saw him when this 'ere act was at Georgetown.

Question. Had you ever seen the accused before “this 'ere act was at Georgetown”?

Answer. I don’t know as ever I did so.

Question. Who was the person whom you saw shoot a man at Georgetown?

Answer. It was Magoffin.

Question. Where were you when you saw the shooting done?

Answer. I was in McClure’s I believe; well, as I was out at the door.

Question. How far were you off at that time?

Answer. Well, I suppose I was about forty steps off. It was all up there at the drug store that it all occurred.

Question. Did you see the accused have a gun in his hand and did you see him fire it?

Answer. Yes, sir; I did.

Question. Describe all that you saw at the time of the firing.

Answer. Well, I don’t know anything else but what is down; well, I saw him shoot.

316 PRISONERS OF WAR, ETC.

Question. In what direction and at whom was the gun fired?

Answer. It was right toward the drug store. He was shot—well, it was about fifteen steps of there—well, six or eight; I don’t recollect.

Question. How was the man dressed whom you saw the accused shoot?

Answer. Well, he looked like he was an officer. I don’t know him; he was a United States man anyhow.

Question. How was the accused dressed?

Answer. Well, he had on a broad hat—a wool hat I believe—and an old shot-gun; I don’t know whether it was old or not, it looked old. His clothes were on the ordinary order you know; just as if he was at home you know. I don’t know but what he was. He was on the plain order.

Question. Did you hear the report of the gun ?

Answer. Yes, sir.

Question. Did you hear any additional report or reports of guns?

Answer. No, sir; only but one as I have any idea.

Question. Did you see the gun pointed in the direction of anyone? and if so state at whom.

Answer. Yes, sir; this ‘ere man. I don’t know any of them, only when I see ‘em out you know; that is all I know.

Question. Did you see the accused and recognize him as the man who shot after the shooting on that day?

Answer. Yes, sir; I saw him afterward and he was the same man who shot.

Question. Did you see the man who was shot fall, and was he on foot or on horseback?

Answer. Yes, sir; he was on his horse when he was shot; he was right opposite the drug store. Yes, I did see him fall from his horse.

Question. Do you know the name of that man?

Answer. No, sir.

Question. Did you see him after he was shot? and if so say what you saw.

Answer. I saw him when he was dying.

Question. Did you see him after his death?

Answer. Yes, sir.

Question. State the date when this transaction occurred?

Answer. 1 don’t know that; it was some time in the fall hut I don’t know the day.

Question. Describe the dress of the man who was shot?

Answer. He was very something on the order of the man there (pointing to an officer present and a member of the commission). Well, he was dressed in uniform you know.

By the ACCUSED:

Question. You say yon are a merchant; what kind of a merchant? Have you ever been engaged in any other kind of business? If yes what business?

Answer. I opened a dry goods store in old Kentucky; well, I did not open any out here. Not been engaged in any other business; just been at home all the time.

Question. What is your present business?

Answer, Well, I own a small farm is all.

EARLY EVENTS IN MISSOURI, ETC. 317

Question. How long have you lived in Buncombe, and where did you live before your residence there?

Answer. Well, I have been about two months there. In old Kentucky I lived before my residence there. I lived or was staying at old Jackson Quisenberry’s, in Pettis County. I am a man of family.

Question. Where is McClure’s—on what street? Main or cross street?

Answer. Well, I don’t know; it is on Main street I believe. If I was going west McClure is on the right-hand side. The drug store is on the cross street.

Question. Had you been inside of McClure’s? If so what caused you to come out and what was the first thing that attracted your attention?

Answer. Yes, I had been in. Well, I saw this army in—all the U. S. Army—and was out because I wanted to look at them.

Question. Did the army come in before you came out at the door?

Answer. No, sir; after I was out they were in. Just as I came out the army came in. Saw them when I came out.

Question. Was the army on horseback or on foot? Was the army moving fast or slow?

Answer. They were ahorseback; they looked like they was moving on, galloping.

Question. Were they armed or unarmed?

Answer. Yes, sir; they were armed. I don’t know but what they had swords; whether they had muskets I don’t know. They had swords.

Question. Did the army all come in by the same road or street or by several streets? Was the town surrounded by the army?

Answer. They came in on all sides. The town was surrounded by the army—I don’t know but what it was.

Question. How many of the army were there when you saw the gun fired?

Answer. Well, I don’t know; there was a good many of them in there.

Question. Were any persons near the man who was shot at the time of the shooting? If any how many and who were they?

Answer. I don’t know any of them. There were others looking on. I don’t know how many there were of them. The soldiers were all round there everywhere at the time he was shot.

Question. At the time the gun fired were the backs of the soldiers to you or their faces?

Answer. I was on the side of them.

Question. Were the soldiers at the time of the fire in Main street or in the street on which the drug store stands?

Answer. Well, they were all over it; every which way.

Question. Were the soldiers galloping toward the accused at the time the man was shot?

Answer. No, sir; the soldiers passed on, you know; and as they passed on he shot. Not all had passed on.

Question. When the gun was fired did the man fall from his horse?

Answer. Yes, sir.

Question. Did he fall in Main street or in the street on which the drug store stands?

318 PRISONERS OF WAR, ETC.

Answer. He fell off in about six or eight steps from the drug store on the street where the drug store stands in the direction of Main street, or nearer Main street than immediately in front of the drug store.

Question. When the gun fired was the side, face or back of the man who shot toward you ?

Answer. His face was toward the drug store. The gun was pointed in the direction of the drug store.

Question. How far was the accused at the time he shot from the drug store ?

Answer. He was about fifteen or eighteen steps off; east of the drug store.

Question. Was the horse of the accused hitched; and if so to what fence ?

Answer. I think he was astanding and holding of his horse, about six or eight steps from the fence of the court-house square.

Question. At the time of the shooting was any person near the accused? If any how many?

Answer. Well, I don't know; they were standing off about fifteen steps, or over it; don’t know how many there was. Well, there was maybe 200 of them for what I know. There was a crowd of soldiers.

Question. Did you see the wound ? If so in what part of the man was it?

Answer. Yes, I looked at him. He bad a wound on the arm, left arm, and in the neck. I saw some holes in his arm; could not tell whether shot or bullets: saw some two or three in the arm and one by the ear.

Question. Did you hear more than one report of arms about the time of the shooting?

Answer. No, sir; that was all I heard.

Question. Before the fire did you hear any person or persons cry out to the accused that the soldiers were upon him or words to that effect?

Answer. No, sir.

Question. Had you been drinking that day?

Answer. No; I reckon I had a horn in me; one was all that I had any idea of.

Question. You say you saw the accused after the fire; where was he when you saw him?

Answer. Well, the army searched and found him. I do not know but that it was in Kidd’s Inn. I did not see him until after the army got him in Kidd’s Inn.

Question. If you know anything about the surrender of the accused that day at Kidd’s Hotel state all you know about it.

Answer. I don’t know anything of it. I saw the army go up after him was all.

Question. You said that you did not know Magoffin before the shooting. Did not some one tell you that Magoffin was the man who shot and was not that your only knowledge that it was Magoffin who shot?

Answer. No; I saw him. I did not know it was the accused until some one told me so; only I think he is the one. I saw him on the same evening afterward.

Question. Did you or not hear the home guard about Georgetown on that day or at any other time make threats against the life of the accused?

Answer. I heard the U. S. Army make threats against him—that was when it was all over though.

EARLY EVENTS IN MISSOURI, ETC. 319

Question. Was the gun you saw fired a rifle or shotgun, single or double-barreled?

Answer. Shotgun, double-barreled.

Question. Had the army passed the grocery where you stood when you came out?

Answer. They came in every which way.

Question. Do you know Satterwhite who keeps the grocery? Did you see him at the door at the time of the fire?

Answer. Yes, sir; I did see him at the door at the time of the fire.

Question. Are you certain that the accused fired but once?

Answer. That’s all, sir, that I have any idea of; all that I seen.

Question. Were you looking at the person who shot the soldier before the shot?

Answer. I looked at him when he shot; don’t know that I looked at him before. I was just alooking about; saw him raise the gun up before he fired, he was down aholding of his horse.

Question. If the accused had fired twice is there any reason that you know of that would have prevented you from hearing it?

Answer. No, sir; I don’t know any reason.

Question. You say you heard no other report of firearms that day. Did you see any other firearms around there that day? If so state what and who had them.

Answer. The U. S. Army was in. I saw firearms, pistols and swords I believe in the hands of the U. S. soldiers. I reckon there were some six or eight who were not U. S. soldiers who had these old shotgnns.

Question. Did the galloping of the army make much noise?

Answer. I don’t know, sir. They did not make much noise.

Question. Were there many persons in and about the grocery at the time of firing and were they drinking and noisy?

Answer. No, sir; only but few there and not drinking or noisy.

Question. When you were at McClure’s did you see some men buy buckshot from Satterwhite?

Answer. No, sir; not that I had any idea of; not that I recollect of anybody calling for buckshot.

Question. You say you were summoned as a witness. Were you called upon at Georgetown to look at the accused while he was a prisoner to see whether you could identify him as the man who shot?

Answer. Well, I don’t know as they called me to look at him, but I was summoned as a witness that I seen it you know—well, all this transaction.

Question. Summoned by whom to testify where—before what court or tribunal?

Answer. By U. S. Army. I believe it was Colonel Marshall. It was the Illinois. I was discharged without examination.

Question. Were the home guard about Georgetown or any of them dressed in uniform at that time?

Answer. I do not know, sir.

Question. Do you know the difference between the home guard and the soldiers of the United States?

Answer. No, sir; I don’t know. Well, they all wear about the one dress I believe.

320 PRISONERS OF WAR, ETC.

Question. What was the color of the horse which the man held when he shot?

Answer. I don’t recollect the color of his horse.

Question. Did you see anyone help the man who was shot from his horse?

Answer. Well, I don’t know; there was a whole crowd around him; saw him fall off and seed him die. The horse on which the man was was going on at the time of the fire.

There being no further questions to propose to the witness the testimony he had given was read to him by the judge-advocate and he was dismissed.

The commission adjourned to meet to- morrow, Thursday, February 13, 1862, at 10 a. m.

SAINT Louis, Mo., February 18, 1862—10 a. m.

The commission met pursuant to adjournment, all the members present with the exception of Lieutenant-Colonel Fischer.

The judge-advocate having informed the commission that an important witness on the part of the United States was absent but would certainly arrive to-day the commission, in order that the prosecution might not be closed before the examination of said witness, adjourned until to-morrow, February 14, 1862, at 10 a. m.

SAINT Louis, Mo., February 14, 1862—10 a. m.

The commission met pursuant to adjournment, all the members present with the exception of Lieutenant-Colonel Fischer.

The accused, Ebenezer Magoffin, also present.

The proceedings of the 12th and 13th were read to the commission by the judge-advocate.

Lieut. Col. H. M. DAY, a witness for the prosecution, was duly sworn.

By the JUDGE-ADVOCATE:

Question. State your name and rank.

Answer. Lieut. Col. H. M. Day, First Illinois Cavalry.

Question. Have you any knowledge of a disturbance that occurred at Georgetown, Pettis County, in which a soldier or soldiers of the U. S. volunteer forces and in the service of the United States Government were killed? If so state what you know.

Answer. I have, sir. By order of General Grant, commanding at Jefferson City, our regiment, commanded by Colonel Marshall, in connection with about 400 home guard, commanded by Colonel Grover, left Jefferson City on or about the 24th day of August, 1861, by order of General Grant; and having a list of what was supposed to he the principal rebels or secessionists on our line of march to Lexington I was in the habit of going ahead of the main body with an average of from 200 to 400 men for the purpose of surrounding and picketing the towns as we approached them. My reason for surrounding and picketing the towns and going in advance was to make arrests of the principal secessionists to be found in the town. We wanted to arrest them and hold them as hostages for the good behavior of the citizens of the place; also understanding there were no mails in that section of the country we were endeavoring to suppress any communication that might go in advance of us if possible. I left the main body of the command one morning about the 28th or 29th of August, 1861, with Company C, First Regiment Illinois Cavalry, composed of

EARLY EVENTS IN MISSOURI, ETC. 321

about 95 men and about 125 home guards. When I arrived in about a half or three-quarters of a mile from Georgetown I divided a portion of my command with orders to surround and picket the town. I then proceeded on the main road, entering Georgetown with eight privates and one non-commissioned officer of the Illinois Cavalry and about sixty home guard. When we arrived within about half a mile of the court-house at Georgetown my orderly (his name was Glasgow) says to me, looking up the hill, “Colonel, there are some soldiers,” seeing what we supposed to be bayonets. I told him that I thought they must be Union troops. As we drew near I discovered that they were not. I supposed that they were not Union and was so convinced by their turning and running. They commenced running and we commenced running after them. Our horses being swifter than theirs we gained on them rapidly. As we ascended the hill going into town I was fully convinced that they were not Union troops or home guard from the fact that one of their number turned and tried to fire, but his gun did not go off. As we chased them along into town they ran through the town, while we were in full charge our horses being on the run. We were almost directly opposite the court-house, Georgetown; we were between the court-house and what I recollect was a frame two-story building to the best of my recollection occupied as a store below; the second story was approached by a stairs on the outside in the street next to the corner, which I think was used for offices, but not positive. Up to that time I had not heard the report of any gun. Just before we were turning that corner or at that building very near there—I am not positive as to the exact position—on the street that goes past Kidd’s Hotel, I heard the report of what appeared to me to be two guns, fired successively one after the other. At that instant I saw Orderly Glasgow, non-commissioned officer Illinois cavalry, reel in his saddle, jumped up like and reeled over to one side; did not go out of it. I checked my horse a trifle and ordered the nearest soldier to me to look after Glasgow as he was wounded, and that I would return directly. After I turned the corner there was a private by the name of Wheat who while my horse was slacking a little came riding past me and exclaimed: “Colonel, I am shot.” I made no reply. After I rode about ten rods several shots were exchanged. I fired two balls from my revolver at those men who were running. At that time I was not positive where the firing came from. Up to the time when I commenced there had been no firing except the two reports I have mentioned. The men who were mounted and whom we were chasing amounted to some fifteen or twenty men, perhaps more or less armed to the best of my knowledge with double-barreled shotguns. I am strongly of the impression that I saw two or three muskets with bayonets. When I got through to the other side of the town, the west side, I found that the home guard had all deserted me. I had five of my own men left with me that I took with me. I halted then. There was one or two men come running to me, their names I do not know, and told me that firing was from the side of the street. At that moment I heard some firing that appeared to be north of the center of the town, which I was afterward informed by Captain Mitchell, Company C of our regiment, was aimed at him and at the men under his command with him that remained over after picketing the town. While I was conversing with these two men (citizens) Captain Mitchell reported to me that he had picketed the town. Acting upon information that I received there I ordered Captain Mitchell to draw in the pickets, surround the center of the town where from the information I got I supposed the firing was. After that had been done one of the home guard, whose name I knew quite well at that time but have forgotten it now, came to me leading a horse, saying, “That horse belonged to Magoffin.” That was the first information that I had had that he was in the immediate vicinity. From information derived from the citizens I was led to suppose that the two first guns that were fired when I was up by the court-house were fired by Magoffin. I afterward ascertained that he was probably in Captain Kidd’s Hotel. I detailed a squad of men to search the building. They soon afterward returned from searching with a man said to be Magoffin, the accused. They reported to me that they had found him secreted in the garret of the hotel.

When they brought him to me I was in the rear of the house—Kidd’s Hotel—in the alley. The first I asked him “was his name Magoffin,” and then demanded his arms if he had any. He either went and got a shotgun and one of Colt’s revolvers, or gave information where they were so that one of my men got them—I am not positive which. I then asked him if he was a commissioned or non-commissioned officer in the Missouri State Guard, or any connection with the so-called Southern Confederacy as an officer or private. He disclaimed any connection with either the Missouri State Guard or Southern Confederacy whatever. I then told him if that was the case that he was guilty of assassinating U. S. troops while in discharge of their duty. I then pinioned his arms; tied his hands behind him with a rope. During this time while they were getting the gun and pistol myself and officers protected him from the fury and rage of the home guard and some of my men who were determined to kill him. I then directed one of my officers to put him in charge of the guard on his own horse, or horse that I supposed to be his, and took up the

21 R R—SER II, VOL I 322 PRISONERS OF WAR, ETC.

march for Sedalia where the main body of the command was. I delivered him to the officer of the guard there at Sedalia by the order of Colonel Marshall, my commanding officer.

Question. Have you stated all the conversation at the interview you speak of, or was there any other interview between yourself and the accused ?

Answer. To the best of my recollection I have. There was some other conversation; it did not amount to anything. I gave him a little lecture -- that’s about all. There was another interview between myself and the accused soon after he was put in the guard-house at Sedalia. I asked the officer of the guard if he had searched Magoffin to see if he had any weapons concealed about him. His reply was he had not supposing I had done it before I left Georgetown. I then went in the guard-house and searched him myself. I asked him why he shot at us while we were running through the town not molesting him or any peaceable citizen. His reply was that he was afraid that if he did not shoot us we would him. We had some other conversation but nothing of importance that evening. I made some hard threats against him; talked very severe to him. The next morning after he had received a visit from his wife and daughter he admitted to me that he shot at me, or what he supposed to be the commander of the forces coming into town, but at the same time carried the idea that he was forced to do it to protect himself. He gave that as a reason for shooting. That was all the conversation that I recollect of having with him until after our arrival at Lexington.

Question. Do you recollect the christian name of Glasgow?

Answer. I do not recollect his christian name. I know that there was but one man of that name in Company C (Captain Mitchell).

Question. How was the accused dressed when you first saw him at Georgetown ?

Answer. Well, sir, I could not see anything marked about his dress; he had no uniform on. I am positive that he had no uniform on or military badge; nothing to distinguish him from a citizen.

Question. Were the home guard in uniform or not’?

Answer. Well, sir, they were not generally. Some had on caps and gray shirts that they got of our regiment—some of them from Johnson and some from Pettis County; I was so informed.

Question. Were the home guard of Georgetown or in that vicinity dressed in uniform or not at the time or previous to the occurrence at Georgetown’?

Answer. The only home guard that I am personally acquainted with living nearer Georgetown than Sedalia had no uniform to distinguish them from a citizen. Captain Parker, of Sedalia, had a command of thirty or forty men who were mostly provided with caps or shirts or something to distinguish them from a citizen; but they were not with me at that time.

Question. How were the soldiers who accompanied you when you first passed through the town (Georgetown) dressed?

Answer. The soldiers were dressed with blue military caps such as were worn by U. S. troops at that time; gray shirts; some of them might have been red; high-topped or long-legged cavalry boots; sabers and belts; strap running over, the shoulder and canteen slung over the shoulder; riding all of our men on Grimsley’s military saddles—brass trimmed and holsters.

Question. Were the soldiers of the U. S. easily and readily distinguished from the home guard by their dress?

Answer. They were, sir.

Question. Did or did not the accused admit to you at either of the interviews to which you allude that he killed the man Glasgow’?

Answer. He did. He admitted that he did.

EARLY EVENTS IN MISSOURI, ETC. 323

By the ACCUSED:

Question. You spoke of a search of the person of the accused by you at Sedalia after you had delivered him over by order of your commanding officer; what was the result of the search—did you find anything?

Answer. I found on his person an old knife—I think all the blades were broken out; a pocketbook containing some memorandums, a $5 note and 25 cents in silver; nothing else that I recollect of.

Question. Have you ever returned to the accused his pocketbook and contents?

Answer. I have not. I reported the amount to my commanding officer, Colonel Marshall—the amount I had taken, the pocketbook and its contents; showed him the knife. He told me to retain them. Afterward while on the march to Lexington he ordered me to pay $4 of that amount to a man whose name I forget whom he was about to send as a bearer of dispatches to General Grant or the commanding officer at Jefferson City. The balance I have in my hands now. The pocketbook and so on was lost with my baggage at Lexington.

Question. Are you not vindictively hostile in your feelings to the accused and have you not proclaimed to others and to him that you would “swear like hell against him,” or words to that effect?

Answer. I am particularly hostile toward him in my feelings. I don’t think I ever made use of that expression to him. I made use of very severe language to him at Sedalia. I don’t think that I ever used that expression. Recently and since I saw him at Sedalia and Lexington my feelings toward him have been different; not as bitter. Up to that time I had a spirit of personal revenge which since I have ceased to feel. The personal revenge grew out of this fact that from what I heard from him and others I supposed the shot that killed Glasgow was aimed at me; that I thought it a cowardly and assassin-like manner of treating me and so on. I made up my mind that everything was fair in war. Perhaps time has made a change and his deportment while with us before and after the surrender of Lexington continued to make that change of feeling; have not that vindictive feeling toward him that I had before.

Question. Were you a prisoner at Lexington? If so when the relation of yourself and accused were changed what was his treatment of you, and has that conduct had any effect upon your hostility to accused?

Answer. I was a prisoner at Lexington. His treatment of me was kind and had a tendency to soften my feelings of vindictiveness and revenge toward him.

Question. Have you not since the accused has been a prisoner here in this city in the McDowell College Prison uttered the words “I will swear like hell against you,” in the presence of the accused and Provost-Marshal Farrar?

Answer. I do not know that I ever had any conversation with the accused in the presence of the Provost-Marshal Farrar. I had, however, a conversation with the accused in McDowell’s College. While there in conversation with him and his associates I gave the accused and his associates some cigars. While in conversation with the accused in as I supposed a friendly manner, the question of charges being preferred against him, I in a jesting manner might have used some expression toward him something of that nature. I think I never made use of that particular expression.

Question. Describe where you first saw the troops whom you afterward chased.

Answer. We were approaching Georgetown from the east, in the direction of Otterville. The soldiers I first saw—those I took for soldiers—were on a hill opposite a brick house—farm-house I should judge it was—on the right-hand side as we approached Georgetown from the east. I should judge I was about half a mile from town, not more than half a mile; about half a mile from court-house. They ran down the hill in the direction of the town on the main road; they made two turns before they got to the court-house.

324 PRISONERS OF WAR, ETC.

Question. How near them had you reached when you entered the town?

Answer. I should judge when we entered the town we had gained about half a mile on them. By the time we were opposite the court-house they were about thirty or forty rods ahead of us.

Question. Had any portion of your force been sent south of your then position so as that they should approach from the south while you approached from the east?

Answer. No, sir. My directions to my pickets were to surround the town and to meet on the opposite side of town.

Question. Did the force advancing under your immediate command reach the town in a body or did any portion of it lead the advance into the town?

Answer. They did not reach the town in a body; the horses that I had, the Illinois cavalry, were swifter than those of the home guards; the cavalry was ahead.

Question. Where, at what spot, did the home guard desert you?

Answer. I am unable to say. My impression is that they started with us but they dropped off; I can’t say where to my own knowledge.

Question. Was any horsemen of your cavalry ahead of you when you got opposite the court-house?

Answer. I should think that Orderly Glasgow was half a horse ahead of me when we turned the corner. I think there was but three of us when we turned the corner, but I am not positive as I was looking ahead and not behind me. In entering and riding through the town I am only positive that the court-house was on my right hand all the time. I think so.

Question. Did or not you see Glasgow drop his pistol when he reeled in his saddle?

Answer. I did not.

Question. State where you were when you saw him reel in his saddle?

Answer. He was ahead of me when I saw him reel; can’t be positive of the place. I passed him and saw he was wounded but did not see him fall, nor did I notice whether his horse changed his direction. The next time I saw Glasgow he was in a wagon-maker’s shop, or blacksmith’s shop, on the same street on which I entered; that is my impression. The entering part there I am confused about.

Question. Had you passed Kidd’s Hotel before you fired, and how many persons did you fire at?

Answer. Yes; I had passed Kidd’s Hotel, and the number of persons I could see was about four more or less.

Question. Were they in sight when you made the turn at the corner?

Answer. They were in sight after we made the turn. They were on horseback and with guns.

Question. Had your cavalry revolvers?

Answer. A portion of them had revolvers; those with me had revolvers or horse-pistols.

Question. How did you enter the town? Were your sabers drawn or pistols in hand, if you know?

Answer. Pistols in hand; sabers were not drawn.

Question. What number of men had Captain Mitchell and was he on your right or left or rear when you entered the town?

Answer. I do not know the exact number of men he had; say about sixty men. He took the right of the turn, and did not enter I think on my street until he got round to the west end of town.

EARLY EVENTS IN MISSOURI, ETC. 325

Question. You say that you, Glasgow and another were in advance as you entered the town. When the start was made by you in pursuit did or did not some one of the party exclaim that they were going to kill some of the damned secesh ?

Answer. Not to my recollection; it might have been said; I don't recollect it.

Question. You say the accused was brought to you. State the terms under which the accused was taken.

Answer. No terms about it that I know of; no agreement made at all.

Question. Was he not taken under the express condition that if he would come down from his position in the attic of the hotel he should be treated as a prisoner of war ?

Answer. Not to my knowledge. There was no one there authorized to make such proposition.

Question. Who did take him ?

Answer. A detail of men; two—I am not positive—of the Illinois cavalry and one of the home guards.

Question. Did they not report to you when they brought him to you that he was in the attic, difficult of approach, with a revolver; that he determined to defend his life there and would cease to resist only upon the conditions of being treated as a prisoner of war, which they agreed to?

Answer. Nothing of the kind whatever. They never reported to me any such thing.

Question. Who was present at and heard the conversation you have given at first interview with the accused?

Answer. Captain Mitchell was there.

Question. Detail what that conversation was as it actually occurred and in the order in which it occurred and as near as may be in the words of the speaker, without drawing conclusions.

Answer. The first thing that I asked was was his name Magoffin? “Yes, sir," was his reply. I then asked him if he had any arms. His reply was finally that he had a double-barreled shotgun and a revolver. I then asked him if he had any connection with the Missouri State Guard or the so-called Confederate army as an officer or private. His reply was that he had none whatever, and following that he said he was a private citizen. All the time the conversation was going on it was broken into by the threats of some home guards principally and probably by some of my own men who threatened to shoot him. They were very much infuriated.

Question. Did the home guards hear you state to the accused that he was guilty of assassinating U. S. troops while in time discharge of their duty ?

Answer. I don’t know whether they heard me or not.

Question. When you told the accused line was guilty of assassination did he make any reply? If so what?

Answer. His reply was as his reply invariably was to any question in regard to the shooting that he shot in self-defense. I might have made some comments on the reply. I think it was in this wise: That he could not have concluded himself in danger while the troops were running through the town. He said in reply that he thought there was a larger force coming than was there.

Question. At what period was it in the first interview while he was a prisoner in your presence, surrounded by the infuriated home guard, that you delivered a little lecture to the accused?

Answer. It was after I had asked him the question in regard to his position in the army and after he had surrendered his arms.

326 PRISONERS OF WAR, ETC.

Question. Can you recollect whether the accused went away for his arms after he was brought into your presence?

Answer. He either told some of my men where they were or went with them himself; I am not positive which.

Question. Was this first interview in the hotel or out of it? If out of it, how far from it?

Answer. It was out of the hotel; I should think probably three rods from the hotel.

Question. Were the home guards who wanted to kill the accused the men who had deserted you?

Answer. I do not know; I presume some of them were.

Question. How soon after your arrival in Sedalia was it that you delivered over the accused under the order of your commanding officer to the officer of the guard?

Answer. I should think within five minutes after we entered the encampment; the same evening of the occurrence at Georgetown and before sundown.

Question. Why did you seek another interview with the accused, and when was that?

Answer. The thought suggested itself to me that I had not examined his person to see if he had any weapons secreted on his person, and further to ascertain if he had any papers to give us any intelligence in regard to the movements of the enemy. This occurred about dusk the same day.

Question. Was it not your purpose to extract a confession from him as to the shooting?

Answer. It was not.

Question. Was the officer of the guard present at the search or any one else besides yourself and accused?

Answer. There was some one else; I can’t say who it was. There was one or two of the guard. Colonel Hughes was not one of them.

Question. Was the conversation you started with him at all necessary to the object you say you had in view, viz, the search?

Answer. No, sir; it was volunteered on my part—wholly unnecessary.

Question. Was it any part of your purpose in going to the second interview to gratify the vindictive feelings you acknowledge to have felt against the accused?

Answer. It was not.

Question. Did you not find on his person a letter directed to the accused by the title of major?

Answer. I did. I don’t know where it is now. The last I saw of it it was with my baggage which was lost at Lexington.

The commission adjourned to meet to-morrow, Saturday, February 15, 1862, at 10 a. m.

SAINT Louis, Mo., February 15, 1862—10 a. m.

The commission met pursuant to adjournment, all the members present with the exception of Lieutenant-Colonel Fischer.

The accused, Ebenezer Magoffin, also present.

The proceedings of yesterday were being read to the commission by the judge-advocate when at the suggestion of the commission and

EARLY EVENTS IN MISSOURI, ETC. 327

the accused the further reading was dispensed with for the reason that yesterday’s proceedings, composed entirely of the testimony of the witness, Lieut. Col. H. M. Day, would be read to him and to the commission during the morning.

The examination of Lieut. Col. H. M. DAY was resumed.

Question. State the conversation at the interview of the search just as it occurred and in the words of the speakers and in the order in which it occurred, avoiding conclusions and inferences.

Answer. There was but very little conversation had between myself and Mr. Magoffin at the time of the search; by that I mean to be understood that the principal part of the talking was on my part. I told him that I wanted to search him to see what he had on his person, and he replied, “All right,” and commenced pulling off his coat and vest. I am not positive whether he had on a coat or not. While I was examining him I talked very severely to him, in this wise: “Magoffin, I am astounded that a man possessed of as much intelligence as you appear to be should take the course that you have in assassinating Federal troops.” I told him that I hoped he would be shot or hung up by the neck; that I would like to be the man to do it. I told him that he probably would be disposed of in some way—executed on the following day. He during my conversation said but very little; he said that he supposed we came there with a larger force to take prisoners or kill all those who were in favor of seceding from the Federal Government of the United States. That is about all the conversation that I recollect of that evening.

Question. State all the conversation you had with the accused at your next interview with him, using the words of the speakers and preserving the order of the conversation as it occurred, avoiding conclusions and inferences.

Answer. The conversation on the following morning was had soon after his wife and daughter left. I am not positive whether Colonel Hughes was present at that interview or not. I first said to accused, “You probably will never see your wife and daughter.” His reply was “it was a tough case.” I then told him that we had two witnesses that saw him shoot; that we had a sure thing on him. He then said that he had shot what he supposed to be the commander of the forces that were coming into town; that he done it solely because he was in fear of his own life, as any man would under similar circumstances. I don’t recollect any other conversation that morning. I might have said something to him to the same effect as I had the evening before.

Question. Did you tell him who the witnesses were? Did he ask who they were?

Answer. He did not ask. I did not tell him. I am not positive as to but one of them—Satterwhite. On my arrival at Sedalia they gave their names to the adjutant.

Question. You say some shots were exchanged you firing two of them. Who fired in exchange and at whom was the fire directed?

Answer. The firing was from those who were running from us; I mean the shots that were exchanged after I shot.

Question. Did they stop and turn their horses to fire, and at what point was that?

Answer. They did not stop their horses; as they turned to go into the timber they slackened their gait and fired. That was on the road what I understood to be from Georgetown to Sedalia. They did not go on the Sedalia road but made a turn to the timber on the north or northeast.

Question. Did you see the pistol of Wheat after he was wounded? If so state how many charges were in it.

Answer. I did not see it.

Question. Did you or not see the pistol of Glasgow after the disturbance was over; and if so how many charges were in it?

328 PRISONERS OF WAR, ETC.

Answer. I did see Glasgow’s pistol. I am unable to say how many charges were in it. It was a six-shooter. My impression is that I saw the pistol after we were ready to march from Georgetown to Sedalia.

Question. Do you remember or not whether that pistol was picked up from the ground by a citizen and handed to the orderly-sergeant?

Answer. I know nothing in regard to the manner in which the orderly obtained the pistol.

Question. You say you did not know from what place or direction the fire came when Glasgow reeled in his saddle. What prevented your knowledge of that fact?

Answer. I am unable to state.

Question. How far were the men you fired at from you when you fired ?

Answer. To the best of my recollection they were off forty rods; they were not more and might have been less.

Question. Were they in sight of you when you made the turn at the court-house?

Answer. They were.

Question. Did the fifteen or twenty men more or less which you saw and chased half or three-quarters of a mile from the town, retire in a body or scatter?

Answer. They retired in a body.

Question. Will you say where it was you saw the muskets?

Answer. At the time I saw what I supposed to be muskets about half a mile from the court-house on the road leading toward Otterville, opposite a brick house on the hill.

Question. Did you see these men enter the town at a full run?

Answer. I did; the men that I saw on the hill.

Question. Are you acquainted with Mr. Mentor Thompson, who lives near Georgetown—an elderly gentleman? If so did you see him leading a horse on the road at that hill before you charged into town?

Answer. 1 don’t know that I am acquainted with him and have no recollection of seeing him on the road.

Question. Was the accused on the list of marked men which you say you had when you started from Jefferson City?

Answer. His name was not on the list.

Question. Was it or not notorious at Jefferson City among the officers of the United States that the accused was a recruiting officer for Price’s army and that he had a camp of men?

Answer. It was. I suppose that was the reason it was not on the list.

Question. You say that when the man came to you leading a horse, saying it was Magoffin’s horse that was the first intimation you had that the accused was in that part of the country. Where did you suppose him to be?

Answer. I supposed that he was in the army of the Missouri State Guard.

Question. Were you or not under great excitement at the time of your first interview with the accused and was it not a scene of great confusion and noise?

Answer. The time of my first interview with the accused I was not very much excited. There was continual noise and confusion.

EARLY EVENTS IN MISSOURI, ETC. 329

By the COMMISSION:

Question. Are you certain that when you entered the town and rode through the streets that the court-house building was always on your right?

Answer. Yesterday I was positive as to the fact but on reflection I am not positive.

Question. What was the cause of the threats on the part of the home guards and some of your men at the time of the first interview you had with the accused ?

Answer. I do not know any cause for threats; cannot define any particular cause for threats.

Question. Are you certain that you made the turn at the corner where the building stands which you have described as a two-story building with stairs running up on the outside?

Answer. My impression is the same that it was yesterday, but I am not positive in regard to it on reflection.

Question. Were you wounded at the battle of Lexington ?

Answer. I was; two wounds, and was a long time ill. I was wounded in the knee by a spent ball on September 20, on the day of the surrender of Lexington.

There being no further questions to propose to the witness the testimony he had given was read to him by the judge-advocate and he requested that the following corrections and additions be made: In reply to question 2 of judge-advocate I say “after I rode about ten rods,” & c.; it should be “over ten rods.” In reply to question 5 of judge-advocate add “I think he wore a dark-colored leghorn hat.” In reply to question 3 by accused insert “afterward I made up my mind,” &c. In reply to question 25 by accused add “I and other officers were engaged in keeping them off.”

The witness was dismissed. The examination on the part of the United States was here closed.

MENTOR THOMPSON, a witness for the defense, was duly sworn.

By the ACCUSED:

Question. What is your name, age and residence, and state where you resided in August last ?

Answer. Mentor Thompson; fifty-one years old March 9, 1862; Pettis County, near Georgetown, Mo., and resided in August two miles and a half southwest of Georgetown.

Question. If you have any personal knowledge of a disturbance at Georgetown about the latter part of August last arising upon the entrance of U. S. soldiers into that village, state what you saw.

Answer. Well, sir, I was in Georgetown; saw Mr. Magoffin and party of twelve men with him. I left town for home about the middle of the day as well as I can recollect; passed out south of the town. When I got upon the hill about quarter of a mile, perhaps a little more, near Squire Henderson’s house, I saw a body of cavalry as I supposed south of me about 600 yards coming in the direction of Georgetown. I was driving a wild horse and buggy and turned in at Henderson’s lot; hitched my horse; got over in the yard and went to the fence on the roadside. When I got there the cavalry came up and stopped in the road right opposite where I was on the hill; house on east side of road. There were two of the cavalrymen from 50 to 100 yards behind the main body of men. They came dashing through the crowd of men, soldiers and a few civilians and they remarked that they would “kill some of the damned secessionists;” another man followed after them. There was a large hollow there between Henderson’s and the town. They had crossed and had ascended the hill half-way on the other side toward the town before any of that party who were on

330 PRISONERS OF WAR, ETC.

the hill made a move in the direction of the town. I remained in my position until I saw them at the southeast corner of the court-house yard or square. When at that corner or turning the corner I saw the flash of a pistol or gun as I supposed and heard the report, and what I supposed to he a pistol immediately after, the report of from two to five pistol shots as I supposed. I then heard the report of what I supposed to be a large shotgun or something of that sort; heard the report of two guns what I supposed to be shotguns. There were some two or three guns or pistols fired after that I could not tell which. I thought they were pistol shots. I then got in my buggy and left for home.

Question. What road did you come out of Georgetown to Henderson’s?

Answer. The road from Georgetown to Sedalia. The men went into town by the same road that I came out.

Question. In coming from the town to Henderson’s did you or not meet any body of armed men on horseback riding at full run toward the town?

Answer. I did not, sir.

Question. Did you leave the road after starting from the town until you reached Henderson’s?

Answer. No, sir.

Question. From your position at Henderson’s had you a full view of the road from Henderson’s to the northeast corner of the court-house?

Answer. Yes, sir.

Question. Did you or not from your position at Henderson’s see a body of armed men on horseback chased by the three soldiers you speak of?

Answer. I did not, sir.

Question. Did you lose sight of the three soldiers after they started at any time? If so state at what point.

Answer. Not until they turned the northeast corner of court-house square.

Question. Are you certain that you saw the smoke or flash and heard the report of a pistol at the northeast corner of the court-house square?

Answer. I am certain.

Question. How soon after you saw the flash and heard the first report before you heard the next report?

Answer. Within a few seconds.

Question. How soon after that before you heard the report of what you took to be a shotgun?

Answer. It was within a few seconds after that.

Question. From your position on the hill could you see the northwest corner of the court-house square?

Answer. Could not, sir.

Question. Could you tell from what point the report of the shotgun came?

Answer. No, sir; I could not.

Question. You say you saw the accused and twelve of his men. How were they armed?

Answer. They were armed with double-barreled shotguns. I did not notice particularly. I thought they were shotguns.

331 EARLY EVENTS IN MISSOURI, ETC.

Question. Do you know when they came into town that day or were they there when you went to town?

Answer. I think they came in after I got to town. I saw the party ride down the street and hitch their horses.

Question. How did they come in, at what place, and how long was this before you started home ?

Answer. They were riding in a walk down the street all together in a line. I suppose it must have been one hour.

Question. Where did they hitch their horses?

Answer. Hitched them to the court-house square fence; some on the north and some on the west side of the square.

Question. Do you know where the accused hitched his horse?

Answer. Yes, sir; he hitched his horse at the northwest corner of the square.

Question. Were the accused and his men in the town when you left for home?

Answer. Yes, sir.

Question. What were they doing if you know?

Answer. They were standing upon the street not doing anything particular.

Question. Did you see on that day any other body of armed men than those you have spoken of?

Answer. I did not, sir.

Question. What do you think was the amount of the force you saw at Henderson’s, and did you know any of them?

Answer. I thought there were some twenty-five or thirty men at Henderson’s. I knew none of the soldiers. I knew some of the citizens—civilians.

Question. Were all of the force you saw at Henderson’s in uniform?

Answer. Of those three men that rode into town the last one I do not think was in military dress; the soldiers—all the rest were in uniform—the civilians were armed and on horseback.

Question. When you started from Henderson’s for home where was the main body?

Answer. They were going up into town in the same direction as the other three.

Question. Do you remember how the accused was dressed that day?

Answer. No, sir; I don’t believe I do. He had on citizen’s dress—I recollect that. In his everyday dress, such as I had seen him in town there wear frequently before.

Question. Whereabouts in the town did you see the accused that day and what was he doing?

Answer. I saw him at Fischer’s store and at the drug store; he was standing talking with some gentlemen.

Question. Where is Fischer’s store and where the drug store?

Answer. Fischer’s store is across the street from the northwest corner of court-house square. It is the corner house on the main cross street; two-story frame building; stairs outside on the side of the building next to Main street. The drug store is across the street west, a little north of the center of the square, about fifty feet south of Fischer’s.

Question. Do you know whether the armed civilians you saw at Henderson’s were home guards?

Answer. I do not, sir; but I don’t think they were.

332 PRISONERS OF WAR, ETC.

Question. Where had you seen the accused last before you saw him

in Georgetown that day ?

Answer. I do not recollect where.

Question. Could you say whether the first pistol flash was from a man on horseback or on foot ?

Answer. I could not, sir. I took it to be from one of the men on horseback.

Question. What obstruction prevented you seeing the northwest corner of the court-house square?

Answer. The trees in the court-house yard. The court-house itself would prevent my seeing it from my position.

Question. How near the court-house square on its east front does the road run up which the three men galloped ?

Answer. It runs right along the east side of the court-house square.

Question. Is the hill at Henderson’s as high as the ground occupied by the court-house yard ?

Answer. I think it is, sir.

By the JUDGE-ADVOCATE:

Question. What was the distance from where you stood at Henderson’s to the northeast corner of court-house square where you saw the soldiers turning the corner ?

Answer. Well, sir, I think it was about 600 yards.

Question. You say in your statement that when the soldiers turned the northeast corner of court-house square you saw the flash of a pistol or gun. Could you readily tell at the distance you were off (600 yards) the flash or report of a pistol from a gun?

Answer. Well, I thought so, sir. I supposed it to be a pistol from the report.

Question. Did you see the accused with the body of men whom you saw come slowly riding down the street?

Answer. Yes, sir; he was with them.

Question. Do you know whether the accused had any particular connection with those men ? and if so state what.

Answer. I don’t know that he had any particular connection with them. I did not know the men.

By the Commission:

Question. How long had you been in town before the accused came in?

Answer. I think I had been about one hour and a half—that is before I saw him.

Question. Did he give his men any order of a military character ?

Answer. None that I heard.

Question. How were they clad?

Answer. All in citizens’ dress. I noticed nothing peculiar in their dress. I did not notice their dress particularly.

Question. How far from the town plat is the place where you met the troops ?

Answer. It is 250 yards, and there were two cross streets between me and the north side of the square. The court-house stands on the third block. One street is fifty feet wide and the street adjoining the square is sixty feet wide.

EARLY EVENTS IN MISSOURI, ETC. 333

Question. How far do you live from the residence of the accused?

Answer. I live about nine miles.

Question. How long have you known him?

Answer. I have known him some five or six years. I don’t remember the time exactly; have known him ever since he has been in the county.

Question. What are your personal relations with him—intimate and friendly, or otherwise?

Answer. Friendly.

Question. What sympathy is there between you and him—politically, religiously or otherwise?

Answer. I understand he was a member of a Christian church, and I am a member of a Christian church. We have voted differently—he has been a Democrat and I am a Whig. We differ now in politics. Do not belong to any secret association with him or anybody else.

Question. What are your sentiments in relation to the present troubles?

Answer. My sentiments are that I would like very much to have peace restored; have been so all the time.

Question. On what terms?

Answer. On terms in conformity to the provisions of the Constitution.

Question. On which side are your sympathies?

Answer. My sympathies are with the Southern people.

The testimony of the witness was read to him by the judge-advocate and there being no additions or corrections to be made the witness was dismissed.

GEORGE S. BROWN, a witness for the defense, was duly sworn.

By the ACCUSED:

Question. State your name, age and where you resided in August last.

Answer. George S. Brown; twenty-six years old; resided near Georgetown, two and a half miles northeast.

Question. If you know anything of a disturbance that took place in Georgetown about the last of August, 1861, arising upon the entry of United States soldiers in that village state it.

Answer. I went up to Georgetown on business and I was at the post-office when Colonel Magoffin and twelve men rode down the street. The post-office is near the suburbs in the western portion of the town. I remained there at the post-office after Colonel Magoffin passed down the street with his men, and I proceeded down the street to Mr. Hoge’s drugstore. When I stepped in Colonel Magoffin was in the drug store. I spoke to him and started to walk out of the door. Just at that time his men came from the court-house (they had been up in the court-house) to the drug store where Colonel Magoffin was. They reported to him that there was a large dust over toward Sedalia. Colonel Magoffin then asked me if I knew where the Irish shoe shop was. I told him it was around in Captain Kidd’s Hotel on Main street. He asked me to walk around there with him; that he wished to get a pair of boots for Charlie Hardin, his son-in-law; that as he had his gun the Irishman might think he wished to hurt him in some way. He did not wish to frighten him in any way. All he wished was to know if the boots were done. When he asked me to go round there with him he ordered one or two of his men, I am not positive which, to get on their horses and ride round on the brow of the hill below the printing office, [on road] out of town, to see if they could see any armed men or soldiers coming, and whilst they were getting on their horses we went round to the shoe shop. All the rest of his men accompanied him. Colonel Magoffin after he walked into the shoe shop and asked the question about the boots walked out. He was standing on the

334 PRISONERS OF WAR, ETC.

pavement before Captain Kidd’s tavern. In a few minutes his men who were sent off returned and reported that the enemy was coming. They came back full tilt. His other men who were standing around him broke for their horses. Colonel Magoffin ordered them to halt some two or three times I am not positive which, but they paid no attention to his command or order but ran, unhitched their horses and mounted them. Colonel Magoffin walked briskly to his horse after he found that his men would not halt. When Colonel Magoffin got to his horse the bridle was off. He unhitched the bridle from the fence and put it on his horse, and when he attempted to get up his foot either slipped or the stirrup leather broke I could not say which. Just at that time three Federal soldiers wheeled the corner of the court-house fence and just as they wheeled they hallooed “here they are,” and fired. Well, there was from three to five pistol reports before I heard the report of the shotgun. Well, sir; there were two of the three soldiers ran, riding as hard as their horses could go up Main street in pursuit of Magoffin’s men, and fired some three or four shots after they passed where I was standing myself. I was standing right on the platform in front of Mr. Fischer’s store, right on Main street. The other soldier turned the northwest corner of the court-house fence and went up to Mr. Hoge’s drug store. He was sitting there on his horse for a few minutes when there was some one came to his assistance and aided him to get off his horse. In a few minutes after that the whole town was alive with soldiers.

Question. At what part of the town—east, west, north or south—did the accused and his twelve men enter the town?

Answer. Entered the town from the west, right down the Lexington road.

Question. Where were the horses of the twelve men hitched and where was the horse of the accused hitched?

Answer. The horse of the accused was hitched at the northwest corner of the court-house fence. The most of the other horses were hitched on Main street on the north side of the court-house fence.

Question. How far was the printing office from the court-house square and in what direction from the court-house?

Answer. It was some 100 or 150 yards from the court-house and very near a south-east direction from the court-house, and on the left-hand side of the street as you go to Sedalia and within the town.

Question. Did you change your position at any time after the first fire? If so state in what respect.

Answer. I did. I was standing, and moved right back against the store; it was about half-way between the building. The building is between fifty and seventy-five feet long.

Question. From that position could you see the accused?

Answer. I could not, sir.

Question. Did you know either of the three soldiers who turned the northeast corner of the court-house square and fired?

Answer. I did not, sir.

Question. Do you now know Colonel Day, and can you say whether he was one of the two men who ran past you?

Answer. I cannot, sir.

Question. From what direction did the report of the shotgun come?

Answer. It came from about the vicinity of the northwest corner of the court-house fence where I last saw Magoffin. I heard but one report of shotgun.

Question. Could you or not see the pistols in the hands of the three soldiers?

Answer. Yes, sir.

Question. Did you go around to where the wounded man was assisted from his horse? If so state his condition,—whether dead or alive and where and how wounded.

EARLY EVENTS IN MISSOURI, ETC. 335

Answer. I walked around some five or ten minutes after the shooting occurred. When I was standing last up the street he had been assisted from his horse. He was not dead and I did not see where he was shot. I saw where he was bloody around the neck. I did not see him afterward.

Question. Do you know whether the accused got or was getting on that day in town shoes for any of the twelve men ?

Answer. I heard him inquiring for merchants, that he wished to get some shoes for his men. The doors were closed because it was reported that the soldiers were coming in.

Question. Did you see any other body of armed men that day except the U. S. soldiers and the home guards and the twelve men ?

Answer. I did not, sir.

Question. Did you know anything about a body of armed men on horseback without uniforms numbering about fifteen or twenty men who were chased into the town of Georgetown by the U. S. cavalry on that day?

Answer. No, sir; I do not.

Question. Were you at Kidd’s Hotel at the capture or surrender of the accused? If so state what you know of either.

Answer. No, sir; I was not. I was at Mr. Phillips’ store when they caught him at Kidd’s Hotel.

Question. Were you present when he was carried before Colonel Day and there tied ? If so state any conversation you heard there between the colonel and the accused.

Answer. I was not there.

Question. Are you certain that the firing by the three men with pistols was before the report of the shotgun ~

Answer. I am, sir.

Question. In what direction did they fire, and at the time of the fire were they in full run?

Answer. They were in full run and they fired right at the men who were leaving their position at the court-house fence—leaving as fast as they knew how.

Question. How many of the twelve men passed you up Main street after the firing began ?

Answer. There were some six or seven passed me after the firing began.

Question. When the accused went to his horse did he have his gun, and what sort of a gun was it?

Answer. Yes, sir; he had his gun. It was a double-barreled shotgun.

Question. Was the accused in full view of you up to the time you changed your position by going back to the wall of Fischer’s store ?

Answer. He was in full view of me up to that time.

By the JUDGE-ADVOCATE:

Question. How far had Colonel Magoffin’s men gone when his foot slipped in the stirrup?

Answer. Some had not left the fence; some had gone.

By the COMMISSION:

Question. You speak of Magoffin’s men; why do you call them by that term?

336 PRISONERS OF WAR, ETC.

Answer. Because I understood he was a recruiting officer and I had heard him call them his men when he wanted to purchase for them. By some he was called major and by some colonel.

Question. Do you know what was the object of the accused and his men in coming to Georgetown? Was he in command of a band for any particular purpose?

Answer. I do not; only as a recruiting officer.

Question. What are your sympathies in relation to the present troubles?

Answer. I am a strong Constitutional man.

The commission adjourned to meet on Monday next, February 17, 1862, at 10 a. m.

SAINT Louis, Mo., February 17, 1862—10 a. m.

The commission met pursuant to adjournment, all the members present with the exception of Lieutenant-Colonel Fischer.

The proceedings of Saturday, February 15, were read over in part to the commission at the suggestion of the commission and the accused. The part read was the testimony of George S. Brown. The testimony of Lieutenant-Colonel Day and of Mentor Thompson, taken on Saturday, had been read to the commission and the witnesses on that day and the rereading was therefore dispensed with.

DANIEL E. SANDERS, a witness for the defense, was duly sworn.

By the ACCUSED:

Question. State your name, age and residence.

Answer. Daniel E. Sanders; twenty-one years old; Georgetown, Pettis County, Mo.

Question. If you know anything of a disturbance at Georgetown in August last arising from the entry of some U. S. soldiers into that village state it.

Answer. The accused came into town on that day, August (I don’t remember the day) about 12 o’clock with twelve men, and I think it was about an hour after he came in when the alarm was given that the Federal troops were coming. At that time I saw Mr. Magoffin standing on the sidewalk, and in three minutes after the Federal soldiers came in. Just before they came in the part of Colonel Magoffin’s men that went around the court-house square—I don’t know whether they were sent—came running back in full speed on their horses. I suppose to the best of my recollection they were about fifty yards ahead of the Federal soldiers. Just as the Federal soldiers turned the corner of the square there was three or more came in first; there was between three and five shots fired at the men that were running; the shots were fired by the Federal soldiers. I did not know any of them at that time but became acquainted with them afterward—the one that was wounded. Well, after the shooting was over I saw Colonel Magoffin run; he was shot at once or twice as he run; he was found shot about an hour after that in Kidd’s Hotel. That is all I know about it.

Question. At what place in the town was the accused when he was shot at by the Federal soldiers?

Answer. He was running south of Fischer’s store in the direction of Kidd’s Hotel—the back part of Kidd’s Hotel.

Question. What corner of the court-house square was it that the Federal soldiers turned and where were you then?

Answer. They turned the northeast corner, there where I first saw them. I was in my office upstairs over Fischer’s. I was employed by Fischer settling his business.

EARLY EVENTS IN MISSOURI, ETC. 337

Question. What sidewalk was it that you say the accused was standing on when the alarm was given that the Federal troops were coming? Describe the place.

Answer. It was on Fischer’s sidewalk on Main street. The window of my office looked out to the north. The platform extended beyond the line of the court-house fence.

Question. Did you see the accused at the time the Federal soldiers first fired or notice where he went from the sidewalk?

Answer. I did not see him after he left the sidewalk until I saw him run.

Question. What did the Federal soldiers fire with ?

Answer. I don’t know with what kind of arms. The one that was wounded fired with holster pistol.

Question. Did you see a shotgun fired or hear the report of one? If so at what time before or after the firing by the Federal soldiers?

Answer. I heard the report of one after the firing by the Federal soldiers.

Question. Did you see the accused have a gun that day? If so

when and where?

Answer. I saw him have it; when he was on the sidewalk he had a gun.

Question. From where you stood could you see distinctly the Federal soldiers as they turned the northeast corner of the square ?

Answer. Yes, sir.

Question. Did you see the soldier who died? If so did you see his pistol?

Answer. Yes, sir; I saw his pistol. I did not examine it. I saw a gentleman pick it up—Samuel H. Brown. It was a holster pistol.

Question. Do you know Mr. Mentor Thompson and George S. Brown, and did you or did you not see them in Georgetown that day?

Answer. I do know them and did see them there that day.

Question. Were you present at Kidd’s Hotel when the accused was taken or surrendered ? if so state the circumstances.

Answer. I was not at Kidd’s Hotel. I did not see him until they had started out of town with him.

Question. Were you present at any conversation between Colonel Day and the accused on that day?

Answer. No, sir.

Question. Is there any obstruction to the view from the northeast corner of the square to Henderson’s house?

Answer. None at all; none from the fence. Henderson’s house sets back from the road.

Question. From the printing office is the view to Henderson’s obstructed?

Answer. No, sir. The distance from the printing office to the northeast corner of the court-house square is about 150 yards.

Question. Do you know whether the accused was or not a recruiting officer under the then governor, Jackson?

Answer. I do not.

Question. Can you state how many of the accused’s men came galloping giving the alarm?

22 R R—SER II, VOL 1 338 PRISONERS OF WAR, ETC.

Answer. I can't say the exact number. The men who went round the court-house square first gave the alarm—four or six; I don't know the number of them.

Question. Which way did they go round?

Answer. I think they went round by the south side of the court-house square. They were on horseback.

Question. Did you see them return; and if so which way did they come?

Answer. Yes, sir. They came up Main street having turned the northeast corner; they came round that way.

Question. Did you know where the horse of the accused was hitched?

Answer. He was hitched near the northwest corner of court-house fence. The horses of thc others were hitched some on the north and some on the west side.

Question. What part of the town did the accused and the twelve men enter and how—rapidly or slowly?

Answer. He entered from the west part of town slowly, on horseback—horses all walking.

Question. Did you see any other body of armed men that day in town besides the twelve men and the U. S. forces?

Answer. No, sir.

By the JUDGE-ADVOCATE:

Question. You say the accused came into town about 12 o’clock on that day. Did you see him enter and where were you at the time?

Answer. I was at the Pacific hotel in the west part of the town and saw them enter. Pacific Hotel is on south side of Main street about 400 yards west of Kidd’s Hotel.

Question. What was the accused doing with twelve men in town that day? Do you know whether it was a party headed by accused for any particular object or a mere chance meeting?

Answer. I do not know, sir.

Question. Why did you not state in your narrative of events the fact that you heard the report of a shotgun before you saw the Federal soldiers shoot at the accused?

Answer. I forgot it.

Question. Did you hear the report of shotguns immediately after the Federal soldiers first fired or how long after?

Answer. It was a very short time after. It was all in a minute the shooting was done, or in a very few minutes. Immediately after the first firing the report of a shotgun was heard. This firing was all at our corner and was done in a short time.

Question. Do you know what those men were doing in town on that day, and were they residents of the county or strangers so far as you know?

Answer. I knew some of them; some I did not. I don’t know what they were doing that day.

Question. Who fired at the accused as he was running after you heard the report of the shotgun?

Answer. I don't know the gentleman; he belonged to the Federal Army.

Question. Where were you when you saw these soldiers turning the corner and what were you doing?

Answer. I was upstairs in my office.

EARLY EVENTS IN MISSOURI, ETC. 339

Question. How could you see the soldiers coming down Main street

or turning the corner ?

Answer. I heard the alarm and was looking out of the window fronting on Main street.

By the ACCUSED:

Question. What do you mean by looking out of the window ?

Answer. I heard the alarm and was sitting by the open window and put my head out.

The testimony given by the witness was read over to him by the judge-advocate and he requested permission to add as follows: In his statement he says “there were between three and five shots fired at the men that were running.” He modifies it by saying “in the direction of the men that were running.”

JOHN G. HUTCHISON-- a witness for the defense, was duly sworn.

By the ACCUSED:

Question. State your name, age and residence.

Answer. John O. Hutchison; near forty-five years of age; a mile from Syracuse, Cooper County, Mo.

Question. Are you connected by blood or marriage with the accused ? If so state how.

Answer. Yes, sir; he married my sister.

Question. State if you know what connection the accused had with the armies of Jackson and Price in arms against the United States ?

Answer. I know personally nothing.

Question. Did you ever see the paper written and left at the residence of the accused by Colonel Brown on the night of the death of Mrs. Magoffin ? If so state its contents as well as you are able.

Answer. Yes, sir. “This safeguard permits E. Magoffin to remain with his family for ten days” (or until the 20th, I don’t recollect which—ten days, I think) “with privilege of visiting our headquarters,” and then something about soldiers or officers to respect this safeguard. That would be the substance of it and that safeguard I had in my possession about twenty-four hours. On the 11th or 12th of December I gave it up. It was signed by Colonel Brown, acting aide-de-camp to somebody else.

Question. Was the safeguard confined to the protection of the person of the accused or did it or not embrace his property’?

Answer. From the reading of it I supposed it was only his person. From a conversation a day or two afterward he supposed that his property was protected by it. He had not seen the safeguard until I gave it to him. The safeguard was given to me so that he would not have to show himself when officers called.

Question. Did you have any occasion to use that paper for protection of the accused or his property? If so state the circumstances.

Answer. His house was surrounded by troops on the 11th of December—I am not sure whether it was the 10th or 11th—before the funeral. I then showed the safeguard to the commander of the troops—U.S. cavalry troops. They then retired; they molested no person. They called for hay and corn for feeding their horses. My father told them to go and get it.

Question. After that do you know of any depredations being committed on the property of the accused by Federal soldiers? If so state when and the circumstances.

Answer. On the next day a regiment passed Mr. Magoffin’s. The soldiers killed a good many of his hogs, turkeys and chickens. Colonel Thayer, First Nebraska Regiment, he had command. I was told so. There were two regiments. It was Col-

340 PRISONERS OF WAR, ETC.

onel Thayer’s men who killed the hogs. Know them by their dress. I told them the property there was under the protection of the Government. They said it made no difference with them. I had this conversation with the privates. The Federal soldiers that same day destroyed fencing to make a bridge or to fill a mud-hole. The accused was then in the yard at his house. This was after the funeral—the day after the funeral.

Question. Do you know what the arrangement was between the officers of the Government of the United States and the accused by which he was permitted to visit his wife, then in extremis?

Answer. I do not.

Question. Did you have any agency in making that arrangement?

Answer. None.

Question. How long did you remain at the house of accused before you returned home?

Answer. I was there for several days—some days at Mr. Magoffin’s house and some at my father’s. They lived about three miles apart.

Question. Do you know anything of the circumstances connected with another safeguard, either as to its procurement or its return?

Answer. Nothing personally.

Question. Were you present at a conversation that occurred at the hog-pen between the accused and Colonel Hughes?

Answer. No, sir.

Question. Have you any knowledge of a conspiracy to assassinate the accused, or do you know whether information of such a purpose came to the accused before the 20th of December?

Answer. I do not—to both questions. I left the neighborhood on the 13th or 14th of December.

Question. If you know any fact or circumstance not previously stated by you favorable to the innocence of the accused state it.

Answer. The day those hogs were killed Mr. Magoffin told me he would be compelled to go back to the army as there was no protection for his property or for himself. The soldiers told me that if I drove the hogs away they would shoot me.

By the JUDGE-ADVOCATE:

Question. Do you know that the safeguard protected the person of the accused on the day Colonel Thayer and his command passed by? Was the safeguard shown to the officer in command?

Answer. The safeguard was not shown. It was in my pocket at the time. Colonel Thayer knew of the safeguard. He was at Colonel Magoffin’s the day before and I told him of the safeguard. He may have known it before as he did not come to arrest him.

Question. Do you know if any complaint was made to the commanding officer that his men were killing hogs, turkeys and chickens?

Answer. I do not. They were only a short distance apart; they were stopping to rest on the road—perhaps half an hour.

By the ACCUSED:

Question. How were the hogs killed—by shooting or otherwise, and what was done with them after they were killed?

Answer. By shooting, and then they were thrown into the wagons.

The testimony of the witness was read to him by the judge-advocate and he was dismissed.

EARLY EVENTS IN MISSOURI, ETC. 341

CHARLES A. HARDIN, a witness for the defense, was duly sworn.

By the ACCUSED:

Question. State your name, age and residence and whether you are related to accused by blood or marriage.

Answer. Charles A. Hardin; twenty-five years old; Georgetown, Pettis County; I married the daughter of the accused.

Question. State any knowledge you have of the connection the accused has had with the army of Price or Jackson, and at what capacities.

Answer. I could not say positively whether the accused was connected with the army previous to this occurrence or not—I mean by occurrence the shooting at Georgetown. I can state some facts that will throw some light on the subject. A short time before the battle of Carthage Colonel Magoffin left home expressing his intention to his family to connect himself with Price’s army. I saw nothing more of him until about four or five days after the battle of Carthage. It may have been as much as two or even three weeks before the battle of Carthage that he left home. Well, when he got back home he gave us a very graphic description of that battle; spoke of his having been in it. Well, he also spoke of frequent conversations he had with Claiborne F. Jackson showing that he was in his confidence. At least that was the impression he made on my mind at the time. Well, just about the time of his return he began to raise a regiment. He succeeded in getting from Saline and Pettis Counties about 225 or 230 men; that is what I understood. I did not count them but saw them. They were quartered near his house while I was there. Well, I saw them drawn up in front of the house and witnessed an election and the accused was elected major. It was a short time after the battle of Carthage and before the occurrence at Georgetown. Well, he had a son, Captain Magoffin, who was in charge of one company. Colonel Magoffin sent his son' s company (Captain Magoffin) and my impression is he sent all the others to Price’s army. He remained at home himself, but I heard him say repeatedly that he expected to rejoin the army or the men that he had sent out there. Well, there were twelve men I think that I heard from him he got from across the river, and there was a portion of the company that had not arrived and he was waiting for them—the captain of the company and the rest of the men. It was during that time the occurrence took place at Georgetown. I was at Colonel Magoffin’s house on the morning of that occurrence when they started into town—that is the accused and the twelve men. Colonel Magoffin remarked to me that he wanted to get shoes or clothing or something for his men. I handed him a $5 bill and told him to get my boots at the shop there which I had had footed. I did not see the accused again until I saw him a prisoner at Lexington. While I was there I was informed by Colonel Tracy, Colonel Taylor and another colonel whose name I forget, that General Price was willing to exchange certain prisoners he had for the accused, and I had a talk with Colonel Marshall on the subject who declined for the reason that he thought it was unfair to exchange prisoners who had taken up arms for prisoners in Price’s hands who were citizens, such as Governor King, Judge Ryland, &c. Colonel Magoffin showed me a commission from Price appointing him colonel. I do not recollect its date. This was after the battle of Lexington. I read it.

Question. In what capacity did the accused act at the battle of Carthage ?

Answer. I do not know. He stated that he was at the battle of Carthage but did not state his capacity. He mentioned that he received orders from Jackson and had received prisoners.

Question. Since the battle of Lexington what so far as you know has the accused been doing?

Answer. Well, I don’t know. He had been with Price’s army until he came home when his wife was sick. The family sent word to him at Price’s army that his wife was sick. This was about the latter part of November. The accused was not at home I know from the date of the battle of Lexington, September 20, until he was sent for as above.

Question. Were you at the house of the accused during the last illness of his wife? If so do you know anything of the arrangement made between Colonel Brown and the accused?

342 PRISONERS OF WAR, ETC.

Answer. Yes, sir; I was there on the evening of the arrival of the accused from Price’s army. He staid one night at home and went over into Saline, there being a pretty considerable Federal force at Sedalia at the time. His wife continued to get worse; she was at that time quite sick. On Saturday, the 7th of December, we despaired of Mrs. Magoffin’s recovery and my wife wrote a note to Colonel Magoffin requesting him to come home that night. Some time after the note had been sent, a little after dark, the house was surrounded by Federal troops and occupied by them with the exception of Mrs. Magoffin’s sick-room. They were searching for the accused. At my solicitation the officers did not enter Mrs. Magoffin’s room. Well, I reckon it was about 5 o’clock that night Colonel Magoffin rode up within sixty yards of the house. He was fired at by three sentinels but escaped, leaving his horse behind him. I saw nothing more of the accused until Sunday night, the troops occupying the house until Sunday morning. Sunday night—I think it must have been as late as 11 or 12 o’clock—Colonel Magoffin came in the house. I was asleep at the time but my wife came and woke me up and I went down to the sick-room and saw Colonel Magoffin kneeling by the side of his wife. He remained there perhaps two hours—three may be. He told me he had been in sight of the house the whole time. He remarked to me that he could have gotten away but did not have the heart to leave his wife. At the suggestion of his mother-in-law, old Mr. Hutchison went over to Doctor Hughes’. Colonel Magoffin also went over, but don’t recollect whether it was before or after Mr. Hutchison returned. This was Sunday night. I saw nothing more of Colonel Magoffin until Monday night. He then came home in company with Colonel Brown and Colonel Hughes. He went first into his wife’s room. I followed pretty soon after and found him kneeling by his wife and her arms around his neck; the children also kneeling around. There was a great deal of confusion. I met Colonel Brown coming out of the room. He seemed very much agitated; I believe shedding tears at the time he came out. I remained in the room but a short time and went into the dining-room where I found Colonel Brown and Colonel Hughes. Colonel Brown asked me if there was any paper convenient and I think Miss Belle Magoffin left the room and in a short time returned with a single half sheet of paper. We noticed something on the back of it. He had sat down and I asked him or Colonel Hughes—I don’t recollect which—what arrangement they had made. One of them stated to me—I can’t recollect which—that they had allowed Colonel Magoffin ten days to remain at home and during that time to consider a proposition which they had presented to him. I asked them what proposition that was. They told me that they had proposed to protect Colonel Magoffin in his person and property if he would give his parole of honor not to take up arms against the Government. Well, after he had made that statement to me he sat down and commenced writing the safeguard. After he had finished it he handed it to some one. I read it. I think it granted him permission to remain at home and to go to Sedalia and Georgetown. To do so he had to pass the lines. I think it also forbid any one to interrupt him or his property during the ten days. I do not remember there was anything else in the safeguard. Colonel Magoffin and me went out one evening after the burial of his wife to the hog-pen. We were sitting there talking about this proposition that they left with him when Colonel Hughes came up and addressed Colonel Magoffin very cordially, and said, “Mac, you had better stay at home.” I think that was the remark. Colonel Magoffin stated to Colonel Hughes that he would like very much to do so on account of his children and the deranged condition of his affairs. Colonel Hughes then remarked that Colonel Brown would be out the next morning to arrange about it—to see about it. Colonel Magoffin remarked that he would be glad to see Colonel Brown.

Question. Were you present at a conversation between Colonel Hughes and the accused at the hog-pen ? If so state your understanding of what was said, and especially what was said touching a second paper.

Answer. I heard nothing that I remember of about the paper. Colonel Magoffin said when we returned to the house that he was afraid the United States Government would not protect his property; that he would give anything in the world to stay at home in peace. The next day—evening I think it was—when Colonel Hughes came I was absent. The next evening I came home. I met my wife in the door and she seemed very much alarmed. She remarked to me that her pa had received information from two different quarters that if he remained at home he would be assassinated that night. I endeavored to remove her fears, but she replied that there could be no correspondence between the two informants and that her father’s life was in great danger. Colonel Magoffin came into the room and asked me to take a walk with him and he betrayed more emotion, trepidation than I had ever witnessed in him before. Usually he is a very cool man. He told me about the same my wife had told me and as we walked across the meadow in the direction of the woods he asked

EARLY EVENTS IN MISSOURI, ETC. 343

my advice—what course he should pursue. I advised him to stay at home, and I think persuaded him; at any rate he walked down to the woods and got his gun which he had never taken away since he came home the night he was fired at by the sentinels. He said when he took his gun, “I will put this by my bedside to-night, and if any one attempts to assassinate me he will pay dearly for it.” He came back to the house, and when he got there he walked into a room where his mother-in-law (Mrs. Hutchison) was and he remained there in conversation about an hour—I don’t recollect how long. He came back and stated to me that he had changed his mind. He said that on account of his children he would hate to be assassinated in his own house or to bring any further difficulty on them by being there, or words to the same effect. I asked him what arrangement he had made with Colonel Hughes. He told me that Colonel Hughes had left a paper lying on the table and told me I could read it. I read the paper and said to Colonel Magoffin, “Did you give your parole of honor to remain at home ? He told me he had not; that he had ten days to decide that matter. I then asked him the question, “Colonel, why did Colonel Hughes leave that paper here ? That seems to imply that you had given your parole of honor.” He remarked to me that there could he no misunderstanding about the matter as it was clearly understood be was to have ten days to decide; “but,” says he, “for fear that there should be some misunderstanding about the matter I will write a letter to Colonel Hughes” He was at that time walking the floor. The paper was brought in to him by one of his daughters I believe. He remarked to me that he felt very nervous and he would prefer that I should write the letter at his dictation. I sat down and wrote the letter myself as he dictated it, word for word. He started away that evening and left word that the letter should be sent to Colonel Hughes immediately, and if I am not mistaken the safeguard accompanied it.

(The judge-advocate shows the witness the letter marked C which he acknowledges to be the one he alludes to.)

The next morning the witness sent the letter up to Mr. Hutchison’s—it was either that night or the next morning. I saw him leave the room after bidding us all good- bye. He went off on horseback. Don’t know whether the accused took his gun or not; I did not see it afterward.

The testimony given by the witness was read to him by the judge-advocate and he was dismissed.

The commission adjourned to meet to-morrow, Tuesday, February 18, 1862, at 10 a . m.

SAINT LOUIS, Mo., February 18, 1862—10 a. m.

The commission met pursuant to adjournment, all the members present with the exception of Lieutenant-Colonel Fischer.

The proceedings of yesterday were being read by the judge-advocate when at the suggestion of the commission and the accused the further reading was dispensed with for the reason that the testimony of the three witnesses examined yesterday was read to them and to the commission in each case after it was given.

H. T. WALKER, captain, Missouri State Guard, a witness for the defense, was duly sworn.

By the ACCUSED:

Question. State your name, rank, age and present condition.

Answer. H. T. Walker; captain in Missouri State Guard; regiment not permanently organized; twenty-eight years old; prisoner of war.

Question. Were you or not at the battle of Carthage? If so state whether you have any knowledge as to the fact of the accused being engaged in that fight and on which side.

Answer. I was at the battle of Carthage. I saw Colonel Magoffin there; he was with General Parsons. There were four prisoners came into my charge that day and I delivered them over to Colonel Magoffin.

344 PRISONERS OF WAR, ETC.

Question. Do you know whether the accused at any other place and time was with the army of Price? If so where when and in what capacity?

Answer. I do not, sir. I saw him at the battle of Lexington the evening he was liberated.

Question. In what county do you reside when at home, and was your connection with the State Guard constant or only at intervals?

Answer. In Pettis County. It was constant, sir, until the battle of Lexington.

Question. Were you taken prisoner at Milford? If so state whether the prisoner was there in arms or taking part against the U. S. forces.

Answer. Yes, sir. I did not see the prisoner until the morning after the surrender. I was then acting in my capacity as captain. Colonel Robertson commanded my regiment.

Question. Can you give the date of the battle of Carthage? Can you give the date of your capture at Milford?

Answer. I think it was the 10th of July. Our capture at Milford I think was on the 19th of December.

Question. Where were you about the 28th of August last ? Do you know of anything of the disturbance at Georgetown about that time?

Answer. I know nothing about it only from hearsay.

Question. Before you started for the army at that time do you know whether the accused was engaged in recruiting soldiers for Price’s army?

Answer. I think he was; I can’t say that I do know it.

Question. Do you know of any arrangements being made for the exchange of the accused while he was a prisoner at Lexington?

Answer. I heard officers in our army talk of exchanging Judge Ryland for the accused.

Question. How long were you encamped on Blackwater before you were taken?

Answer. We got there a little before day and taken the next afternoon.

Question. When you did see the accused at Milford had he any arms?

Answer. No, sir; he had no arms. We were all disarmed at the time.

Question. Do you know Capt. E. H. Magoffin? If so state whether you met him in the army of Price—where, when and in what capacity.

Answer. The first time I saw him in the army was last May; he was a second lieutenant. I next saw him at Boonville; he was a lieutenant then also. About the last of August I joined him near Clinton on his way to join Price. He was then in command of a company.

Question. At Jefferson City in May upon the first call for volunteers by Jackson did you or not see the accused?

Answer. No, sir; I don’t think I saw the colonel there.

Question. Is the army of Price uniformed or not?

Answer. No, sir. Some of the officers have uniforms and some have not; the majority of them have not.

By the JUDGE-ADVOCATE

Question. Are you a commissioned officer?

Answer. I have never received a commission. I think the officers receive commissions; after they have been elected and have opportunity they receive commissions.

EARLY EVENTS IN MISSOURI, ETC. 345

Question. Have not the officers in Price’s army some distinctive uniform, mark or badge by which they could be known by their men or distinguished from privates?

Answer. A very few of them.

Question. By whose order did you deliver the prisoners to the accused at the battle of Carthage and what position did he hold as the recipient of prisoners?

Answer. I did not deliver them by any order at all. The prisoners were in my way and I gave them over to Magoffin.

Question. During the morning and day of your encampment near Milford and before the surrender how many recruits came in, and what proportion of them was armed and what number unarmed to the best of your knowledge?

Answer. I have no knowledge of any recruits coming in that day.

Question. Before the prisoners were captured what proportion of the force encamped near Milford was armed?

Answer. I think that it was less than one-half.

By the ACCUSED:

Question. At Boonville and Carthage what was the condition of the State forces as to regular organization?

Answer. I hardly think it was a perfect organization—some regiments and some companies were formed; others that were not full; so me companies that were not attached to any regiment.

Question. What was the number of your force at Milford, and how many prisoners were in point of fact taken?

Answer. I do not know the number of force there. I should put it down at 600. Some escaped.

F. S. ROBERTSON captain [colonel)?] Missouri State Guard, a witness for the defense, was duly sworn.

By the ACCUSED:

Question. State your name, age, rank (if any) and your present condition.

Answer. F. S. Robertson; captain [colonel ?] in the Missouri State Guard; have his commission as such; thirty-four years old; prisoner of war.

Question. Were you taken prisoner at Milford, and who commanded the forces there taken?

Answer. I was. I commanded them.

Question. Was the accused there? Was he armed? Did he constitute any part of your forces or take any part against the United States on that occasion?

Answer. Yes, sir. He was not armed that I saw. None whatever that I saw.

Question. State whether you reported to General Pope the accused as a colonel constituting part of your force.

Answer. I did not, sir.

Question. Did you ever make such report to any officer of the United States?

Answer. I did not.

346 PRISONERS OF WAR, ETC.

Question. Did you ever regard the accused at that place as being any part of your force or in any respect subject to your orders ?

Answer. I did not, sir.

Question. State, first, the date of the surrender; second, the amount of your entire force; and, third, the whole number of the prisoners taken.

Answer. The 19th of December, 1861. About 750 was the number I started out with from Grand Pass, Saline County. The number of prisoners taken as near as I could ascertain was 684 officers and privates sworn in. There were some citizens; the number I don’t know—some fifteen or twenty that fell in with me.

Question. Did you know the accused prior to the battle of Carthage? Do you know whether he was in that battle and in what capacity he acted?

Answer. I did not, sir. I was there but did not know whether he was in that battle or not. I was second lieutenant of the Saline Mounted Rifles, in Parson's command.

Question. State whether you have ever seen the accused iu connection with Price’s army at any time, and where and in what capacity.

Answer. I have. The first I saw of him in Price’s army was at Lexington. I never saw him before. I could not state in what capacity he was only from a hand-bill I saw at Lexington. The handbill spoke of him as colonel. He was authorized to arm and equip a regiment by General Price.

Question. While the accused was a prisoner at Lexington do you know of any arrangement made for his exchange ? If so what and by whom ?

Answer. I do not know of any such arrangement.

Question. How far from Grand Pass to your camp at Milford ?

Answer. About forty miles as near as I can estimate.

By the JUDGE-ADVOCATE:

Question. Where and when did you first see the accused on or about the 19th of December, 1861 ?

Answer. Just before the surrender; 2 o’clock in the afternoon. I saw him about eighty yards in the rear of my lines coming from the direction of the creek. He was afoot to the best of my recollection.

Question. How many recruits did you get on your way to Milford from Grand Pass and how many at Milford?

Answer. I received two on my way from Grand Pass to Milford. I swore into the service three at Milford.

Question. By men sworn in and taken as prisoners do you or not exclude camp-followers, sympathizers and citizens generally found in your camp?

Answer. I exclude them all when I say 684 prisoners sworn in were taken.

Question. How many of your men were armed?

Answer. I could not state the exact number but about 250.

Question. Do you know whether the accused had anything to do with the conference before the surrender or whether he was consulted in regard thereto?

Answer. He was not consulted in regard to it at all.

Question. Do you know the number of camp-followers, sympathizers and citizens who were captured with your command or who were about camp the day of your surrender?

EARLY EVENTS IN MISSOURI, ETC. 347

Answer. About fifteen or twenty which added to the 684 makes about 700 prisoners. This is about the number to the best of my recollection. Speaking of my men I mean all that were enrolled; some may not have been sworn in. I exclude negroes. The force was on its way to join Price.

The testimony of the witness was read to him by the judge-advocate and he then requested permission to add to his answer to question 5 by accused as follows:

In giving the names of my force to the commanding officer at McDowell’s College Prison in Saint Louis I reported Colonel Magoffin as traveling with my command.

C. B. ALEXANDER, co1onel, Missouri State Guard, a witness for the defense, was duly sworn.

By the ACCUSED:

Question. State your name, age, rank (if any) and present condition.

Answer. Charles B. Alexander; colonel in Missouri State Guard; thirty-two; prisoner of war.

Question. Were you taken prisoner at Milford? What was your rank in command there? Who had chief command of the forces to which you belonged?

Answer. Yes, sir; lieutenant-colonel; Colonel Robertson had the chief command at Milford.

Question. Was the accused there? If so did he constitute any part of the forces to which you belong? Was he armed? Did he take any part on that occasion in consultation or action against the United States?

Answer. He was there, but did not constitute any part of the force. He was not armed. I did not see him take any part or know of his taking any part.

Question. State any knowledge you may have of the connection of the accused with the State guard.

Answer. He has been with them. I saw him at Carthage, or near there; don’t recollect whether it was after the fight or before it and don’t know whether he had any position or not or what capacity he was in. I was told at Lexington that he had a commission in the army. The accused himself told me that he had a commission. At Cassville I offered the accused the position as major in my regiment, either in the latter part of September or the first of October. He refused me telling me that it would conflict with his commission as a colonel in the army. He expected that some of his men would be there shortly, or that he would return to Pettis County to recruit. The last place I saw the accused was at Pineville in about the latter part of October or the 1st of November, on the road to Osceola.

Question. You say you were second in command at Milford. Did you ever report to any officer of the United States the accused as a colonel or as any part of the forces there taken?

Answer. No, sir; Colonel Robertson had the reporting.

Question. Do you know anterior to the prosecution or did you hear the accused say whether he had recruited forces for the army in the counties of Pettis and Saline?

(Objection to this question was made by a member of commission. The commission was cleared for deliberation and when the door was reopened the decision of the Commission was announced that the words “or did you hear accused say” should be stricken out.)

Answer. I understood that was the case, but I was not in Pettis County or among the recruits.

Question. Did you know Capt. E. H. Magoffin, the son of the accused? If so state whether he joined the army of Price; if so whether he carried a force with him and where did he join with his force.

348 PRISONERS OF WAR, ETC.

Answer. Yes, sir; he did join the army of Price. He carried a company of men with him raised in Pettis County and joined the army near Fort Scott, near Dry Wood. He entered my regiment. This was in August as well as I recollect.

Question. Do you know about when it was that the accused was taken at Georgetown? State how long before or after the capture was it that Capt. E. H. Magoffin joined the army with his force raised in Pettis County.

Answer. I do not know the precise date. It was as well as I recollect near the 1st of August. It was some time about the middle part of August that the captain joined me. The capture of the latter was before the joining of the son, as the latter told me of it on his way out.

Question. Did any other company from Pettis County join the army about that time?

Answer. Yes, sir; a company under Captain Staples; one under Captain McCarey.

Question. Did you know whether Colonel Price, the son of the general, was under orders raising recruits and supplies in the counties of Saline and Pettis just before the capture of accused at Georgetown?

Answer. Yes, sir; I knew that he was in Saline but don’t know whether he was in the county of Pettis or not. I had a communication from Colonel Price while he was in Saline County.

Question. What was then your official position in the army of Price?

Answer. I was a captain in the army.

Question. Do you know officially as an officer in Price’s army whether the accused was or not at that time recruiting and raising supplies for the army in connection with Colonel Price?

Answer. I can’t answer that question positively; I do not know officially.

Question. Were you at that time yourself engaged in recruiting or furnishing supplies?

Answer. I was, sir.

Question. State whether in communications passing from officer to officer in the army of Price the accused was or not reported to be engaged in that service?

Answer. Yes, sir; he was reported to be engaged in that service. It was so reported by officers—that is in communications from Colonel Price to me as a recruiting officer.

By the JUDGE-ADVOCATE:

Question. When and where did you first see the accused on or about the 19th of December, 1861?

Answer. I first saw him on the evening before the surrender on the 18th some ten miles on the route from Grand Pass to Milford. He joined us at that time. The first I saw of him he rode up to the camp. The next time I saw him was at the surrender. I saw him a few minutes after the surrender or about that time.

Question. Was the accused under your eye during the whole action at Milford?

Answer. No, sir.

Question. How many unarmed recruits did you receive the day you were encamped near Milford?

Answer. I don’t know as I received any. None reported to me.

Question. How many of your men were unarmed?

Answer. Between 300 and 400. They were close about there keeping behind trees and out of the way.

EARLY EVENTS IN MISSOURI, ETC. 349

Question. How many camp-followers, sympathizers and citizens were in your camp near Milford besides the men regularly enrolled ?

Answer. Well, sir, it was impossible to tell; there might have been 10, 15 or 20 or 100. They had no uniforms and only knew the citizens when roll was called.

Question. Do you know whether the accused took any part in or was consulted as to the surrender at Milford l

Answer. I do not, sir.

Question. Did you have any conversation with the accused at any time at camp near Milford or before your arrival there ?

Answer. I think we had some little conversation on the first evening he came up to me. I have no recollection of the conversation other than asking how his wife was. He was not armed; had no gun—at least saw no arms about him.

The testimony given by the witness was read to him by the judge-advocate and he was dismissed.

WALTER ROBERTSON, a witness for the defense, was duly sworn.

By the ACCUSED:

Question. State your name, age and present position.

Answer. Walter Robertson; thirty years; prisoner of war.

Question. Were you taken prisoner at Milford? In what capacity did you there act?

Answer. I was. I was acting as private secretary and temporary aide to my brother, the colonel.

Question. State whether the accused was armed at Milford whether he constituted any part of the forces to which you belonged; whether he took any part against the United States on that occasion.

Answer. He was not armed to my knowledge; he was not armed during the fight. I saw him during the fight but not previously. He did not constitute any part of the forces that I know of; I saw him take no part against the United States. I was passing from one company to another from different parts of the field and saw him sitting on his horse—he was in the timber a little back rather to the rear of where the forces were stationed; when I saw him he was sitting alone to the best of my recollection. He was within 75 or 100 yards where a portion of our men was stationed. He was not armed; no gun.

The testimony given by the witness was read to him by the judge-advocate and he was dismissed.

The commission then adjourned to meet to-morrow, February 19, 1862, at 10 a. m.

SAINT Louis, Mo., February 19, 1862—10 a. m.

The commission met pursuant to adjournment, all the members present with the exception of Lieutenant-Colonel Fischer.

The accused, Ebenezer Magoffin, also present.

The proceedings of yesterday were being read by the judge-advocate to the commission when at the suggestion of the commission and the accused the further reading was dispensed with.

SAMUEL H. BROWN, a witness for the defense, was duly sworn.

By the ACCUSED:

Question. What is your name, age, residence and rank (if any)?

Answer. Samuel H. Brown; twenty-nine years old; Pettis County, Mo., near Georgetown; no rank; am a farmer.

350 PRISONERS OF WAR, ETC.

Question. If you know anything of a disturbance which took place in Georgetown in August last when a portion of the U. S. soldiers and home guards entered that village, state all that you know and as far as may be in the order in which it occurred.

Answer. I was in Georgetown the latter part of August and as I was leaving town (I had gone there for some physic) I discovered some armed men riding into town from the west. On discovering those men I rode back to meet them to see who they were. Found them to be Magoffin and some twelve or fifteen other men. I suppose them to be so; I did not count them. I understood that day before going to town that there were to be some Federal troops there that day. My mother was in town that day, and when I learned that Mr. Magoffin was there with armed men I went to her for the purpose of getting her to leave town before the Federal forces should get there. Just as she had mounted her horse the report was that they were coming (alluding to the Federal forces coming into town). I then told her to get off and run into a house, feeling that it was unsafe for her to start on horseback from the town at that time or to be on the street. I then hitched my horse to the court-horse fence. While hitching the horses Mr. Magoffin came to the corner for the purpose of getting his horse. Just as he was in the act of mounting three of the Federal officers, or men of the troops at least, turned the opposite corner of the court-house square—that is the northeast corner of square. As they turned a corner there was a pistol fired by one of them—1 could not tell which—and about half way of the court-house square there was another fire. There were two shots nearly or quite together. I could not say the second fire was by the soldiers; I could not say by whom. At the time of those two fires when half way of the court-house square there was one of the Federals wounded or shot. This soldier who was shot at that time his horse turned to the left, the northwest corner of court-house square. Well, there was after or about the time he turned several shots fired. My attention was then attracted by a fourth soldier or officer (I don’t know which he was) on horseback who was some thirty or forty yards in the rear of the other three. This fourth man as he turned the north-east corner his attention was attracted to the opposite corner by the firing (I suppose it was; I can't tell that), and he came along with his pistol presented right at that corner. I was standing there myself. This fourth man passed round the northwest corner. I went then to my mother who was still in the street and took her to the hotel. Then it was confusion pretty much after that. By that time there was 100 or more Federal troops in the town passing in every direction. I was standing at the northwest corner of court-house square when all this occurred—right at the corner; it might have been some six or eight feet south of the corner.

Question. Did you or not remain at your position at the northwest corner until you went to your mother and took her to the hotel ?

Answer. I did. From the time I went there to hitch my horse until the fourth man passed I did not change my position.

Question. How far were you front the accused while you remained at the northwest corner?

Answer. I can’t state that. I was at the time I saw those Federal troops not more than six feet from him.

Question. Did you or not see the accused fire?

Answer. I did not see him fire.

Question. Could you tell where—that is from what direction—the two shots nearly at the same time came ?

Answer. One of them was to my left, a little in the rear, judging from the report. I only state that from the report. I should judge that the other came from the men—the soldiers.

Question. You say one of the reports came from your left and a little to the rear; which way were you facing them ?

Answer. I was facing northeast; would be.

Question. Was the accused south of you on the cross street, or in what direction from you when you say he was in six feet of you?

Answer. When he was six feet from me he was immediately south of me.

EARLY EVENTS IN MISSOURI, ETC. 351

Question. You say after the fourth soldier turned the northwest corner there was more firing; could you say whether they were pistol shots or gun shots?

Answer. I could not, sir.

Question. Did the accused mount his horse? When did you lose sight of the accused after you saw him go to his horse for the purpose of mounting?

Answer. He did not mount his horse. When he attempted to mount his horse his foot slipped or stirrup leather broke and he then fell back further into the cross street to my rear. I lost sight of him when he fell back. I saw Mr. Magoffin again as I was crossing the alley after I had taken my mother to the hotel. I did not see him again until he was arrested.

Question. Did you know whether the wounded soldier who turned the northwest corner had a pistol?

Answer. I can’t say I know that he had a pistol. I picked up a pistol in the street myself between where I stood and this man who was shot. It was a large-sized revolver—a five-shooter I think. I did not examine it; have reason to believe it was the pistol of the man who was shot. I picked it up after returning from the hotel where I left my mother. I pointed it out to another soldier who asked me to hand it to him which I did. I remained in the street—that is going in and out of the doors and in the street—after I come back from the hotel. I did not wish to appear as hiding. I did not examine the pistol.

Question. Do you know whether or not when you saw accused crossing the alley any shots were fired at him?

Answer. I do not, sir.

Question. Were the men who came into town from the west armed, and did you see any other body of armed men that day in Georgetown except those men and the U. S. soldiers?

Answer. They were armed. No body of armed men.

Question. Did the accused have a gun?

Answer. He did, sir.

Question. Describe it, and did he have it when you saw him crossing the alley?

Answer. It was a double-barreled shotgun. I don’t think he had it when I saw him crossing the alley. I would not be positive but I don’t think I saw the gun.

Question. Were you present at the time the accused was taken in Kidd’s Hotel? Were you present when the accused was carried before Colonel Day?

Answer. I was not. I was not present when the accused was carried before Colonel Day.

Question. Are you certain that the pistol-shot from one of the soldiers was the first fire made there?

Answer. That was the first firing I heard—that is as the soldiers were turning the corner.

Question. At the time of the pistol-shot—-the first fire by one of the soldiers or just before it, or just after—did you hear anything said by the soldiers or any exclamation from them? If so what?

Answer. Just as they were turning the corner some one hallooed, “Here they are;” but don’t know whether that remark came from the soldiers or some one else.

Question. How soon was the fire after that remark?

Answer. Well, it was a very short time.

352 PRISONERS OF WAR, ETC.

Question. how many reports of fire-arms do you think you heard during the disturbance?

Answer. Well, sir, I could not say. There was a number of them—say fifteen or twenty shots. The most of the firing was in the western part of town.

Question. Did you ever hear the home guard utter threats against the life of the accused ?

Answer. Yes, sir; on the day of this occurrence.

Question. Were any of the home guard there that day in uniform ?

Answer. I can’t answer that question positively.

Question. Have you been engaged in raising a company for Colonel Hughes’ regiment?

Answer. Yes, sir; I have been recruiting—attempting it.

Question. Do you know whether the accused was prior to this disturbance engaged in recruiting soldiers for Price’s army?

Answer. Only from general rumor. It was understood through the county that he was—in the community.

Question. State what are your feelings and opinions upon the question of Union or disunion.

Answer. I am decidedly Union.

By the JUDGE-ADVOCATE:

Question. What was the distance where you stood from the north-east corner of court-house square.

Answer. I suppose it is eighty yards.

Question. At whom was the first pistol-shot to which you allude fired ?

Answer. Well, sir, I could not say at whom it was fired. It was fired up the street at I suppose the men in Main street.

Question. Did you hear the report of two guns?

Answer. Yes, sir; I heard two reports at the same time—very nearly the same time; but could not say whether they were gun reports or pistol reports.

Question. Did you hear one or two reports in the rear of you?

Answer. Well, sir, I heard one report as I remarked to my left in the rear, and the fourth report—that is immediately after I heard the two reports nearly together—to my left, but not in my rear but in the cross street. I judge altogether from the sound.

Question. Of the two reports heard nearly together could you tell which you heard first—the one in your rear or the one in front of court-house square?

Answer. Well, sir, the one in my rear; that is my impression. I could not say positively but that is my impression.

Question. Were the home guard around Georgetown uniformed at the time of this occurrence or before it?

Answer. Some of them were.

By the COMMISSION:

Question. At the time of the firing on your left and rear how many armed men were near you; and if any how far from you?

Answer. Well, sir, the only armed men I saw near me was the three Federal troops and the one that came up in the rear of them. Those three men could not have been more than forty yards from me. The other man was forty yards behind the other

EARLY EVENTS IN MISSOURI, ETC. 353

three. Those were the only armed men I saw. Three of them were passing at full speed; the other more leisurely. My attention was directed to the main street. Knowing that Mr. Magoffin was near me my attention was directed to the main street.

Question. When you saw the accused at the northwest corner of the court-house square was he armed; if so how ?

Answer. He was armed with a double-barreled gun.

By the ACCUSED:

Question. The fourth report you speak of; could you say whether that was from a pistol or gun ? Answer. I believe it was from a gun.

There being no further questions to propose to the witness the testimony he had given was read to him by the judge-advocate and he was dismissed. The examination on the part of the defense was here closed.

With a view to give the accused time to prepare his defense the commission at the request of the accused adjourned to meet to-morrow, February 20, 1862, at 12 o’clock.

SAINT Louis, Mo., February 20, 1862—12 m.

The commission met pursuant to adjournment, all the members present with the exception of Lieutenant-Colonel Fischer.

The accused, Ebenezer Magoffin, also present.

The proceedings of yesterday were being read to the commission by the judge-advocate when at the suggestion of the commission and the accused the further reading was dispensed with for the reason that the proceedings, being composed entirely of the testimony of Samuel H. Brown, were read to the commission and to the witness just before the adjournment yesterday. The accused then presented his written defense marked H and attached to these proceedings, and which was read by his counsel.

-- o0o --

Exhibit H. [From OR Series II, Vol. 1, pp. 360-369]

MR. PRESIDENT AND GENTLEMEN, OFFICERS OF THE COMMISSION:

With your leave I now propose to present in brief some considerations in defense against the charges upon which I have been arraigned before you. Whatever may be the result of this trial, whether for me or against me, the investigation is a personal benefit in so far as it has enabled me to free myself from a portion at least of that wholesale and widespread defamation which for a long time has assailed my character as a soldier and a gentleman. I cheerfully admit that this commission at every stage of the trial has evinced a marked disposition to grant me every facility in its power to make and prepare my defense. But it is nevertheless true that I have labored under peculiar difficulties.

The first charge and its specification deny to me the character of “a legitimate belligerent.” I find myself cut off by the absence of witnesses beyond my control or the control of this tribunal from testimony which would directly and unequivocally establish my status in the army in rebellion against the United States. These witnesses, embracing the highest officers from Governor Jackson and General Price down, are out of my reach and beyond the summons of the judge-advocate. I have

EARLY EVENTS IN MISSOURI, ETC. 361

therefore been reduced to the necessity of resorting to subordinate, indirect and circumstantial evidence to prove affirmatively a fact which I thought too notorious to be gravely questioned. I have been connected with the State Guards from the period of the first call by governor Jackson. So soon as I read his proclamation I repaired to Jefferson City and was there ordered and instructed by him to raise a regiment of cavalry to act as scouts in conjunction with Major Staples, then of Georgetown, but now an officer in the Confederate Army in Virginia. This regiment was to be subject to the order of the governor. The force was raised by Major Staples and myself immediately and marched to Boonville under the command of Major Staples, I being detained by the sudden illness of my wife. I joined the retreating state forces before they reached Carthage, fought in that battle and acted in the capacity of aide to Governor Jackson. I was then ordered to return by the governor to raise recruits for the State. He declined giving me any written orders or dispatches on the ground that I might be captured by Sturgis whose position on the Osage was pointed out to me by him, as also that of Lyon. On my arrival at home which was in a few days I at once commenced recruiting in the counties of Pettis, Saline and Cooper which adjoin, and also in Missouri north of the river I raised a company headed by Captain White. At first, when the force amounted to less than 300 men, I was elected its major, and afterward upon the increase of the body I was elected colonel. I was at the same time under the instructions of Colonel Price engaged in raising supplies. The men and the supplies raised by me were to start for the army on such day as Colonel Price should order the march. The men raised by me with the exception of Captain White’s company went under the orders of Colonel Price, and I should have gone with them but for the fact that I was summoned as a witness to Fort Leavenworth in behalf of Mr. John J. Jones in a suit of great importance which detained me four or five days.

On my return home all of my recruits had marched with the exception of twelve men, part of Captain White’s company, who were waiting the arrival of the balance of the company across the Missouri River. The next day after my return I carried these men to Georgetown with the view of furnishing them some supplies which they needed. My capture at that village followed and I was carried as a prisoner to Lexington. On the fall of Lexington I was at once commissioned by General Price a colonel with instructions to raise a regiment of infantry and began recruiting on the spot. I recruited many men. Some of the recruits were cut off by the U. S. forces before they joined the army. I was with the army from that period until the intelligence came of the illness of my wife when I received a permit to return home, but with instructions to continue recruiting as soon as the health ot my wife would enable me to do so. The leave of absence and the instructions were given to me by General Price in person. But for my capture I should have been at the battle of Dry Wood, and at Lexington an assailant not a prisoner. This in brief is a true history of my connection with the army. I have never been other than a legitimate belligerent. I am and have ever been opposed to guerrilla warfare. I have never engaged in it nor given it the slightest countenance. My influence and my actions have been to put down marauding or bandit war. No living man can truly charge me with having conducted hostilities in a manner unbecoming a soldier or a gentleman. I used my influence to have disbanded the camp at Blackwater organized for self-defense against the home guards, and many men thus disbanded were

362 PRISONERS OF WAR, ETC.

recruited by me into the regular service of the State. The commission will readily see how much of this history is supported by the evidence.

I proceed to notice the first charge: “Killing in violation of the laws of war.”

The first averment necessary to support the charge is that I was not a legitimate belligerent. I suppose the rule to be in this tribunal as elsewhere that the prosecution must prove the charge—prove it clearly. Has this been done ? The proof offered by the prosecution consists, first, in showing that I was not in uniform—wore no military badge to distinguish me from a civilian. Such proof would make illegitimates of more than half of all soldiers now in arms against the United States. It would prove that our fathers who fought at Concord and Lexington and Bunker Hill were illegitimates, not to mention the home guards.

Second. The testimony of Colonel Day, who represents me as disclaiming any connection with the army when I was a prisoner surrounded by infuriated home guards and some of his cavalry soldiers who were clamoring for my blood to be shed there by them and he using his best exertions to prevent the deed. Out of this moment of violence, confusion and fury comes the only direct evidence which the prosecution offers to give color to the charge. According to all writers this is the weakest of all evidence known to the law. Starkie says of it:

Of all kinds of evidence that of extra-judicial and casual observations is the weakest and most unsatisfactory. Such words are often spoken without serious intention, and they are always liable to be mistaken and misremembered and their meaning is liable to be misapprehended and exaggerated. A hearer is apt to clothe the ideas of the speaker as he understands them, and by this translation the real meaning must often be lost. A witness too who is not entirely indifferent between the parties will frequently without being conscious that he does so give too high a coloring to what has been said. (Starkie’s Evidence, vol. 1, page 461, top side page 462, and note.)

That Colonel Day can be mistaken is a very patent fact developed by the testimony. His mistakes are numerous of things more palpable than words uttered amidst a scene of uproar and confusion. I would not -- I do not impeach the integrity of the witness. At that scene and at another in Sedalia he was under the dominion of feelings which pushed him into improprieties of speech and bearing toward me which I am sure his calmer judgment does not approve. But while these feelings were eminently calculated to cause him to misjudge, misinterpret and misunderstand me, I am not willing to believe that he has sworn to any intentional error. He was, however, mistaken—unequivocally mistaken. No human being ever heard me deny my connection with the army. I was a rebel on principle; never did disguise the fact and do not now. In the unhappy civil feud of my country I took sides from the outbreak of rebellion in this State and all men who know me know my position. I may have said to Colonel Day that I had no commission—that is no documentary evidence of it—in the Missouri State Guard. I might with truth also have said I had no place in the Confederate Army for at that time I had never seen any of the Confederate Army in this State. But beyond that all is error and misunderstanding on the part of Colonel Day.

Opposed to this evidence I have affirmatively shown the following facts:

First. I was in the battle of Carthage. Received prisoners and acted as aide to General Jackson. This battle was fought about the 10th of July.

EARLY EVENTS IN MISSOURI, ETC. 363

Second. In August and in the month of July I was recruiting in the counties of Pettis, Saline, Cooper and across the Missouri.

Third. I raised a force of between 200 and 300 men, and part of that consisting of three companies marched and joined the army of Price in August.

Fourth. I was elected major by that force after it was raised. I have not been able to prove that I was elected colonel by it after its increase.

Fifth. Colonel Price in August had been sent in to raise recruits and furnish supplies. He was a colonel in the army of General Price. Captain Alexander of the army was engaged in the same service. In communications between Colonel Price and Captain Alexander, addressed to the latter as recruiting officer, Colonel Price recognized me as a recruiting officer of the army and stated the theater of my operations.

Sixth. Colonel Day testifies that among the officers of the United States at Jefferson City the fact of my connection with the army was notorious and that was the reason why I was not on the list of marked persons to be arrested while on the march of his detachment to Lexington.

Seventh. While a prisoner at Lexington negotiations for my exchange for prisoners held by General Price took place and the U. S. officer, Colonel Marshall, objected to the exchange on the ground that I was in arms against the United States and was therefore no fair exchange for civilians.

Eighth. So soon as my liberation took place a commission of colonel of an infantry regiment was given me and I at once entered upon the new service and was with the army of Price till summoned back by the extreme illness of my wife.

Ninth. On the day of my capture at Georgetown I had still under my command a portion of the recruits raised at the period when Colonel Price was in [sic], and when my name as a recruiting officer was mentioned in the communications official between him and Captain Alexander.

Tenth. It was notorious that I was connected with the army as recruiting officer at Georgetown and Sedalia among civilians and soldiers.

Eleventh. Colonel Hughes establishes the fact that the recruits I had raised were encamped on my own land in force so large that a force of 500 men were detailed to capture my command.

The actual exhibition of a paper commission is not essential to the status even of an officer in the army, though it constitutes when accessible the highest evidence of the fact in a regularly organized army. It will be remembered by the commission that at Boonville and Carthage there was no regular organization of the forces in rebellion—scarcely more than existed at Concord or Lexington on the outbreak of the Revolution. The evidence to establish the status of officer or soldier must have respect to the character of the force raised and its organization. The battle of Carthage was as I have said on the 10th of July. The amount of service rendered by me from that period to the affair at Georgetown, embracing a little more than forty days, shows that I was no idler. Even up to the present period I suppose the organization of the rebel army in this State is imperfect. I submit that the proof does not clearly or satisfactorily show that I was not a legitimate belligerent.

The second averment in the specification is that the killing was “wanton and malicious.” This is wholly unsupported by the proof. The attack was made by Federal soldiers; they began the firing. The proof

364 PRISONERS OF WAR, ETC.

is overwhelming to that fact. There is a conflict of proof among the three witnesses for the prosecution—Satterwhite, Simpson and Colonel Day—as to the circumstances under which the firing occurred, while every witness in the case is in conflict with the testimony of Colonel Day. Satterwhite says there were two reports of fire-arms, though he saw but one. Simpson says there was but one and he saw it all. Colonel Day admits more firing. The statement of Colonel Day of a body of armed men, fifteen or twenty in number, chased for one-half a mile or three-quarters of a mile on the road leading to Sedalia is not only without support but against the testimony of every witness in the case. No such body of men was seen that day at or near Georgetown. The men under my command entered the town from the west an hour before the entrance of the Federal soldiers and they had not left it when the cavalry entered it. He is obviously mistaken as to the point at which his soldiers and himself entered the town. The conjoint testimony of Thompson, Sanders and the two Browns establish (if human testimony can do it) two facts: first, that the attack was made by the Federal soldiers; second, that they were first to begin the fire. It is equally clear that the charge of firing was at me and my command. A firing in defense of such attack cannot be called either wanton or malicious without a flagrant abuse of language. It was not done in “wantonness,” for homicide except for justifiable cause is abhorrent to my nature. It was not done in “malice” for I did not know him nor had I ever seen him or heard that he had done me or mine previous wrong. Some injustice has been done me unintentionally by a misapprehension of Colonel Hughes in regard to our conversation at Sedalia when he kindly visited me while under guard. He did not ask nor did I give him a detail of the circumstances that transpired at Georgetown. He says he took it for granted that I took it for granted he, Colonel Hughes, knew all about the circumstances. Our conversation as he says was constrained, being in the presence of an officer. At one period of his testimony he says that I said, “I would not have shot if I had thought they were U. S. troops or soldiers.” Again in repeating the conversation he says I said, “I would have surrendered if I had thought they were U. S. soldiers.” Here is a double misapprehension.

As to the shooting 1 told him distinctly (as he admits) that I shot in self-[defense] to save my own life. The other phrase, “surrender,” had no reference to the shooting whatever. It had exclusive reference to the scene in Kidd’s Hotel. I had gained the attic of the hotel and was pursued by a crowd. 1 was armed with a revolver and they could not reach me without peril to the lives of six of them. I thought it was their purpose to kill me on the spot, and I had resolved to die there selling my life as dearly as I could. They told me to come down. I refused and they did not think proper to ascend to me. I refused to surrender to them without an express understanding that I was to be treated as a prisoner of war and protected from violence. They at last agreed to my terms. Now the idea I attempted to convey was not that I would have surrendered to the U. S. soldiers on their entrance or dash into the town—not at all, for I never thought of such a thing—but that when approached in the attic I would have readily surrendered there without resistance if I had been dealing exclusively with U. S. soldiers for from them I did not anticipate violence. This misapprehension has led to the inquiry by the president of the commission and the judge-advocate whether at that time the home guards were in uniform. If my words had been understood in their proper context it is obvious the inquiry could have no significance. If it shall be held

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otherwise it appears from the proof that some of the home guard were in uniform before that period; but I had been away recruiting and at Leavenworth and had not seen a home guard for a long time, so that in fact I did not know whether they wore uniform or not. It was my first visit to Georgetown for a long time and it was the last I expected to make for some time to come, as my purpose was to leave for the army with my recruits. Of course I expected a larger force than had appeared at the time I shot. I had been informed by my men who went to look from the top of the court-house of a big dust coming in the direction from Sedalia. When so informed I sent two scouts on horseback to the brow of the hill which overlooks the Sedalia road for accurate information. Besides I could not conceive of an attack which embraced only three or four assailants. My expectations are justified by the actual proof of a large force.

I think I may fairly claim from the commission an acquittal of the first material averment of the specification to the first charge. If I was a legitimate belligerent I had the right according to all the laws of war to repel such attack when made. If I was not a legitimate belligerent the right of self-defense is not denied to a civilian. In either case the shooting by me was neither wanton nor malicious.

The third material fact averred in the specification is the “killing of George W. Glasgow, a sergeant,” &c. There is no proof in the cause establishing the given name of the soldier who was killed. In the civil courts of the country the absence of such proof would be fatal to the prosecution. I know not how a military commission acts in such case; but I cannot stoop to any technical defense. My life has been manly and shall be so to the end. I put my defense to this charge on higher grounds. If my shot killed the sergeant—a fact which I do not know and perhaps never will know—I insist that I killed him in conformity to the laws of war and the universally recognized laws of self-defense.

The second charge touches me more nearly than the first for it involves my honor which I hold dearer than my life. I have lived to the age of forty-three, and no human being can truly say that I ever knowingly forfeited my word.

Second charge: Violation of parole. The first material averment of the specification necessary to support the charge is that “on about the 10th day of December I gave my parole of honor not to resume arms against the Government of the United States in consideration of having received a safeguard dated the 10th day of December.” Is this averment supported by the proof ? It is not pretended that this alleged parole was given at any other place or time than at the house of Colonel Hughes on the interview between Colonel Brown and myself on the night of the 9th of December. The only two witnesses introduced by the prosecution on this subject were Colonel Brown and Colonel Hughes. They are both gentlemen of the highest integrity and they are at substantial variance on the point in question. Colonel Brown says I gave my parole. “I took his verbal parole that he would not in the meantime take up arms against the United States nor give information to the enemy.” Colonel Hughes says with equal affirmation that I gave no verbal parole and with marked emphasis he says that he was present and heard the whole conversation between Colonel Brown and myself from the time the subject was broached to its close. It will be remembered that no safeguard was written at that interview. A practical safeguard to my home was furnished by both gentlemen who conducted me in safety to my wife. Colonel Hughes did not know what a parole was. He confounded it with a wholly different thing—a passport or

366 PRISONERS OF WAR, ETC.

safeguard granted by a military officer in authority, which may or may not be the consideration of a prior parole or promise made to the officer by the recipient of the safeguard. The one is a promise made; the other a privilege granted, and they may be dependent or independent of each other. When the nature of a parole was explained to the witness by the president of the commission he at once declared that no such promise was made by me at that interview.

If I could settle this variance of the two respectable and honorable gentlemen by any memory of mine in that interview I would do it no matter what peril to me might follow. But I cannot. My mind was in a paroxysm. In the whirl of the soul which then stirred me I remember only two prominent ideas—one was a burning wish to see my dying wife, and as to another matter they presented to me about an arrangement with the Government time was given me to make up my mind. I was consciously incapable of connected thought—I think they said ten days. If anything passed there beyond the privilege to see and be with my wife and the further privilege of ten days to determine my future course it made no impression upon me that survived the moment. I know I felt grateful to the Government officers for the generous kindness they evinced for me in deep dejection of soul—the deepest of my life. It was as unexpected as it was kind, for I had given up all hope of such favor except upon a condition impossible for me—that is a precedent oath of allegiance to a government from which I rebelled on principle and a conscientious conviction of duty. Hence I took the peril of the fire of sentinels and pickets to snatch momentary interviews with my wife. This much I will say that no consideration could have induced me to take up arms against the Government while I was receiving so great favor from it. I will say also that if Colonel Brown asked me whether I in the meantime—that is while I was permitted to stay at home—or during the period of time allowed me to make up my mind as to what arrangement I would make with the Government would agree not to take up arms against the Government I have no doubt if I understood him that I answered in the affirmative. It is not pretended that I gave any parole at my house that night after I was conducted there. Nor can it be justly urged that I gave any parole on the subsequent occasion when Colonel Hughes brought me the second safeguard. He was not authorized to take it but he acquits me of giving any promise or parole except the constructive one which [he] says he implied from the supposition that I accepted the safeguard. To the last Colonel Hughes did not succeed in ridding his mind of the confusion involved by confounding two things so essentially different as a parole and a safeguard.

This acceptance of the second paper as an absolute and final adjustment with the Government is an error also produced from taking things for granted which were not expressed. He admits I never said I accepted it. The fact is manifest to me now that Colonel Hughes interpreted every expression or act of mine in any degree equivocal during that period by the standard of his feelings. He was, had been and I believe still is my friend, and I am proud of his friendship. He disapproved of the course I felt it to be my duty to take in our present unhappy domestic war. He ardently desired me to be once more at peace with the Government and his desires led him to deductions and inferences which he would not have made in dealing with one indifferent to him. He knew well that I would not take the oath of allegiance even to be by the bedside of a dying wife whose life was a part of mine.

But when I said there are strong and powerful reasons why I should

EARLY EVENTS IN MISSOURI, ETC. 367

stay at home he infers hastily but kindly that I am in a condition of mind to accept whatever terms the Government might exact as the condition of my security, He has confounded an inference with a fact. It is a total misconception of me when [he] says I asked him to procure a perpetual safeguard for me. He admits that I never said a word about the terms on which I would remain at home permanently nor did he. So that in the dark his ardent friendship for me induced the conclusion that I had made up my mind to take a safeguard without regard to its terms or conditions. I did not know what terms the Government would impose. Really wishing to remain if I could consistently with my principles and my honor I felt a strong desire to know what the Government would do or propose. The ten days were expiring and I wished to see and consider the terms of whatever arrangement should be proposed. I remember the solicitude I felt as to the contents of the paper when I asked him to read it. I had not read it when he left nor examined and considered the stipulations. I had not a shadow of doubt that I had the full period of days to consider and determine a matter of so great moment. And when I retained the safeguard having ultimately resolved on my course I thought the negotiation was at an end, and in my opinion the relations between myself and the Government were the same as before the negotiations were begun.

The commission will remember that the distinct understanding of the officers, Colonels Steele and Brown, was that a failure to come to terms would place me back in the position of an enemy to the Government.

I had no doubt that when I returned the safeguard I had the right to act as the enemy of the Government. But I wished to avoid all semblance of unfair bearing toward the officers who had voluntarily done me a great kindness and I resolved to take no step of hostility to the Government until the expiration of the ten days. But I submit to the consideration of the commission whether I was in such relation to the Government of the United States as to be the subject of a parole of honor in the sense and meaning of the law martial so as to become the object of a criminal prosecution. I was not a prisoner. I was the open enemy of the Government and an officer in the army at war with the Government. Without my knowledge, upon the voluntary solicitation of Colonel Hughes, a friend of the Government and also my personal friend, the Government upon its own motion sought an interview with me proclaiming that I should have the privilege to pass in and out of its lines, and if no arrangement was made mutually satisfactory to the Government and myself that I should be where I was before the interview—an enemy still—the Government taking no advantage of me by reason of its acquired knowledge of my whereabouts derived from the interview. Can the Government upon any military usage treat me as a criminal in such a state of facts even if I had been mean enough not to respond by my action to the magnanimity the Government extended to me?

In defining to the witness Colonel Hughes the nature of a parole of honor the president of the commission said it was a promise on honor made by a prisoner to some competent military officer authorized to take it. As far as I have been able to inform myself this definition is correct. The essential element of a parole is a promise given by one in the power of the Government by virtue or in consideration of which the Government may relax that power or modify its exercise. I was not in the power of the Government at the time. The Government distinctly recognized that fact; but acting under the promptings of a high humanity it chose voluntarily to extend to me, an enemy, a kindness,

368 PRISONERS OF WAR, ETC.

resolving to take no advantage of me even if its generous action should turn out to be misplaced. I submit that this view is conclusive to the result that there is no power in the court to treat me as a criminal under the second charge. But my honor is involved as a gentleman and soldier that I clear myself of all imputation of improper action touching the peculiar relation between myself and the Government arising out of the action of the Government toward me. I recognized then and do now the delicacy of that relation, and I insist that my conduct was entirely consistent with the most romantic standard of honor. It will be conceded by the commission that it is of the essence of every breach of parole that it should be intentional; that the party charged with the breach should have fully understood the nature of his obligation and with that knowledge broken it. Before the world I solemnly declare that I would have surrendered my life before breaking intentionally any known obligation to the Government arising out of the circumstances by which I was carried to the bedside of a dying wife. Never for a moment had I any other understanding of what passed between the officers of the Government and myself than that it was my privilege to determine what should be my future relation to the United States, and that I had the time of ten days to decide the question.

Torn by conflicting motives strong and powerful in their antagonism I decided, and sent back the safeguard sent to me by the Government through the same channel by which it came. At that moment I believed the negotiation or conference ended and that I stood on the precise ground occupied by me at the moment of the interview at Colonel Hughes’ residence where I met the officer of the United States. I am satisfied now from the testimony of Colonels Brown and Hughes that they interpreted the negotiation differently, but I am proud to believe that neither of those gentlemen deem me capable of violating a known obligation.

It is not important that I should analyze the processes through which my mind went before the decision was finally made. The peril which surrounded me at home was better understood by me than by the officers of the United States. I had knowledge of danger unknown to them. I remembered and shall not soon forget the scenes of Georgetown. I remember too events earlier in point of time than the day of my capture as well as others more recent, coming up to the period of my final determination. I felt that the post at Sedalia was no security for me. I remembered how unavailing were the efforts of the officers of the United States to save from cold-blooded assassination Judge Richardson at Canton, and I know that my peril must be as great as his own. I did not doubt the will of the U. S. officers to save me from the hands of violence but I doubted and still doubt their power to save me from the shot of an assassin. I broke no parole express or implied. A parole express or implied imposes no obligation except during its continuance. Whenever it expires by its own limitations or by the option of the party giving it all of its obligations cease. My determination ended all parole. The time given was for my benefit, not that of the Government. lf at the hour when I laid my wife in her grave I had decided not to make an arrangement with the Government at that instant all parole constructive or express expired and left me free to act as an enemy of the Government, if my judgment should so dictate. Still to avoid the imputation of error I studiously avoided taking up arms against the United States till after the expiration of the ten days. I was not in arms against the Government at Milford. I did no act and gave no counsel against the Government,

EARLY EVENTS IN MISSOURI, ETC. 369

although I did not doubt [that] I had a right as an enemy [to do] either or both. Technically by a refinement of thought I was in the “camp of the enemy,” but I was not there as aider, abetter or combatant. I had a right to be there or at any other place which offered a security which [neither] my home nor the military post of Sedalia could afford me. I was an enemy, had a right to rejoin the army and was on my way to it. My purpose was to have left the camp at Milford and proceed alone for I thought they were careless and did not use the proper vigilance for their own security. The capture prevented the execution of that purpose. If in the deep perturbation of mind caused by the greatest calamity of my life I misunderstood the action of the Government officers and did not truly appreciate the relation in which that negotiation placed me toward the United States I deeply regret it. But in the face of Heaven I declare that in all I did I acted in strict conformity to whatever I understood of obligation. It is very painful to me to think—[Copy mutilated].

[E. MAGOFFIN.]

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* * * * *

EARLY EVENTS IN MISSOURI, ETC. 369

The commission was then cleared for deliberation, and having maturely weighed and considered the evidence adduced find the accused, Ebenezer Magoffin, as follows:

Of the specification, first charge, not guilty.

Of the first charge, not guilty.

Of the specification, second charge, guilty.

Of the second charge, guilty.

And the commission does therefore sentence the said Ebenezer Magoffin, of Pettis County, Mo., two-thirds of the commission voting therefor, to be shot to death at such time and place as the commanding officer of this department may direct.

D. S. STANLEY,

Brigadier- General, U. S. Volunteers.

RICH’D D. CUTTS,

Colonel, U. S. Army, and Judge-Advocate.

Findings and sentence approved.

The sentence will be carried into effect at such time and place as shall be hereafter designated by the general commanding the department. In the meantime the prisoner will be confined in a cell of the military prison at Alton.

H. W. HALLECK,

Major- General.

JUDGE-ADVOCATE’S OFFICE, April*, 1862.

In the matter of Ebenezer Magoffin, confined in a cell in the military prison at Alton under sentence of death by order of General Halleck.

Execution of death suspended by order of the President, and the record sent up for his consideration.

The facts of record appear to be: He was tried before a species of tribunal instituted by General Halleck at Saint Louis and styled a military commission on two charges—first, for that, “not being a legitimate belligerent” he did, in Pettis County, Mo., “kill and murder a sergeant of the Illinois cavalry;” and, second, for “violation of parole not to resume arms against the United States.”

To the first charge, considering it substantially as a charge of murder, he pleaded to the jurisdiction, and that waiving the question of the lawfulness of his arrest and imprisonment he was in the matter of that charge answerable only in due course of law; that he was a citizen of the United States and of the State of Missouri; that the fact was laid in a district where the laws of both were in unobstructed force and capable of execution and the courts open and free to try and punish; and he claimed the protection of the laws and Constitution of the United States.

The plea was overruled. Then on trial he was acquitted of that charge, but convicted of the second, violation of parole, and sentenced to death. In regard to the parole Lieutenant-Colonel Brown, Seventh Missouri Volunteers, testifies that Magoffin’s wife being near death he gave him on the 10th of December leave to visit her and a protection or safeguard on condition not to commit any act of hostility or give any information; that he accompanied Magoffin to his house and there put it in writing essentially as follows:

A safeguard is granted to Col. E. Magoffin protecting him in person and property until the 20th day of December, 1861. Officers and soldiers of the U. S. Army will obey this order and in no way molest him or his family.

* Day not entered.

24 R R—SER II, VOL 1 370 PRISONERS OF WAR, ETC.

That afterward, on the 15th of December, understanding that Magoffin desired an extension he sent to be delivered to him a second safeguard in words as follows, dated back to the 10th “to correct any supposed defects in the first,” viz:

Whereas, Ebenezer Magoffin, formerly a colonel in the Army of the Southern Confederacy, has given his parole of honor that he will not in any manner by word or deed aid, assist or give countenance to the enemies of the United States Government; and whereas, by order of General Halleck said Magoffin is to be permitted to remain at home or vicinity in the quiet unmolested pursuit of his usual peaceful occupations: I therefore order all officers and soldiers of the U. S. Army to give him protection and by this safeguard he is protected in person and property as long as he remains in the quiet pursuit of his ordinary business, in same manner as other loyal citizens of the United States.

The first was written at Magoffin’s house in conformity to previous agreement. Witness did not deliver it to him personally because when he went to his room for that purpose he found him holding in his arms his wife supposed to be dying and therefore he handed it to the daughter of Magoffin, who did not then see, read or have it read to him. Witness has not since seen it; has only a general recollection of its terms; thinks something about loyalty to the United States was in it; it was written and much distress in the family. When asked whether it was given merely to allow Magoffin to visit his family or with the understanding that he was to become and to remain a loyal citizen witness answers to visit his family for a time and to remain if he chose; that in respect to remaining Magoffin had said when it was proposed in conversation at the interview before they went to the house that his mind was harassed and he wished time (ten or fifteen days) to decide; whereupon witness agreed to give it for a limited time, leaving him at the expiration thereof to place himself in the same position as before—that is, “as an enemy.” He was not a prisoner of war further than by the receiving the safeguard and giving his parole. Witness further states that Magoffin was then so distracted as to be unable to keep up a connected conversation and in so great distress that witness thought him bordering on insanity.

Doctor Hughes, witness of the prosecution, states he informed the officers of the condition of Magoffin’s wife and asked leave and safe conduct for him to see her; arranged the interview between Colonel Brown and Magoffin. Colonel Brown asked Magoffin what it was he wished; he answered the privilege to go to the sick-bed of his wife in safety. Colonel Brown inquired for what length of time; Magoffin answered ten or twenty days by which time her illness would end one way or the other. Colonel Brown replied he should be privileged to do so. Witness suggested to make it perpetual. Magoffin said he was then in no condition of mind to determine upon that and asked the privilege of deciding on that within the time stated. Colonel Brown promptly assented. Then the three went to Magoffin’s house; found his wife in a dying condition. Colonel Brown would not disturb him but wrote the safeguard without Magoffin’s knowledge and left it for him. It was a promise of protection of person and property until the 20th; could not say that accused promised or pledged himself to do anything. He appeared to be not entirely himself from distress and want of rest. Colonel Brown thought his mind seriously threatened.

This is the case for the prosecution as respects the first safeguard and the pledges given for it. It shows I think merely a case of safeguard or safe-conduct to come and stay in safety a certain time not the release of a prisoner to go on parole not to resume arms. The exact conditions imposed with it are not ascertained. The paper is not pro-

EARLY EVENTS IN MISSOURI, ETC. 371

duced. The witnesses cannot testify to the terms; they are not certain as to the substance. But the effect and conclusion from their whole testimony is that Magoffin was pledged (as is reasonable, proper and customary in case of safeguard) to do no act of hostility or give information while profiting of it.

In regard to the second safeguard it was given by Colonel Brown to Hughes for Magoffin. Hughes delivered it on the 15th of December. They read it and discussed the conditions. Hughes left it with him.

On the 18th Hughes received it back and the following from Magoffin:

PRAIRIE [LEA], [December] 16, 1861.

Doctor HUGHES.

DEAR SIR: You were at my house last night and left with me a written pass. Previously I had accepted one which does not expire until the 20th day of this month. It was understood that I had until that time to deliberate the proposition made by Colonel Brown and yourself concerning the parole. I am deeply grateful to you both for the kindness you have shown me; it was generous and disinterested. But reliable information has reached me to-day from two sources that a conspiracy has been made to assassinate me in my home. Reluctantly I am compelled to leave it again. I therefore send you back the pass you left with me. I cannot accept it. I must express again my sincere gratitude to yourself and Colonel Brown for your kindness and regret that circumstances have frustrated your friendly purposes and that I am compelled to leave a young and helpless family to the mercy of my enemies.

Truly, your friend,

E. MAGOFFIN.

The return of this second safeguard within the term of the first and the time expressly allowed him to consider of the acceptance of an extended or perpetual one puts it out of consideration in the question of his violation of parole which is to be decided on the terms and conditions of the first.

The alleged violation is in being with the armed rebels captured at Milford on the 19th of December. It appears that he was not armed and took no part in the fight. He says he was traveling with them for protection. Being with them and holding a commission in the same service, if then not in command or on duty I think he may be considered as with them or in league with them as the charge alleges, and that he is therefore properly made prisoner of war like the rest. But I cannot see in what he has committed any violation of his parole or of the conditions of his safeguard. He had left his house to return to the condition from which he came; within the term he had privilege to do so.

The witness, Colonel Brown, who gave it, states:

The accused was regarded as an officer in the army of General Sterling Price, which he claimed and acknowledged himself to be. At the time of the giving of the first safeguard the accused was not viewed in the light of a prisoner of war further than the giving of the safeguard and the receiving the parole would constructively make him so; that he would be at liberty at the time the safeguard expired to leave his home and place himself in the same position as before I met him—that is as an enemy.

If the theory of the prosecution and the principle of the judgment be that having such liberty when the safeguard expired—that is on the 20th of December—he had it not before—that is on the 16th or 17th when he left his home, and the 19th when he was taken at Milford—that is error. The rule of public law is the reverse. He is bound to go before the safeguard expires. Vattel says:

A safe-conduct for a stated term expires at the end of it. The bearer is to retire, before that time or he may be seized and punished if he has given room for suspicion by delay of his own framing. Though in case of safe-conduct, revocable at pleasure, bearer is allowed a proper time for his safe departure.

372 PRISONERS OF WAR, ETC.

But supposing for which I see no ground that he violated his parole or the pledge of honor on which the safe-conduct was granted him—what then ? What penalty did he incur? He forfeited his protection undoubtedly. He was liable to capture like any unprotected enemy. I doubt if the penalty extends further unless he has acted as a spy.

But even considering him not as an enemy on safe-conduct but a prisoner released on parole not to take arms, what then is the penalty by the laws of war for violation of that parole? I find nothing decisive of the question in the writers on public law. Vattel, Wildman, Wheaton, while they assert the binding obligation of such parole and deny the power of the sovereign to dispense from it or forbid its observance pass by in silence the question of penalty. Halleck, the latest writer on international law and the laws of war, does not meet the point precisely. He says the act of government in forcing a soldier “to violate his parole” is futile as a protection to him, and is semi-barbarism in the government; that Mexican prisoners released on parole were organized into guerrilla bands under robber chiefs furnished with military commissions from government. “Such attempts,” he adds, “to violate the ordinary rules of war not only justify but require prompt and severe punishment.” What punishment ? Death or more rigorous imprisonment than that from which they had been relieved and that other prisoners are subject to? And for what cause? Because they were again in arms, or because in guerrilla bands under robber chiefs? “Accordingly,” he proceeds, “General Scott announced his intention to hang every one retaken after thus violating his parole.” He thus so far as he indorses the doctrine may refer to the aggravated circumstances just stated. General Scott, however, does lay the doctrine down without qualification. At least he requests the archbishop of Mexico so to advise and instruct the Mexicans that death is the penalty for violating parole. But I do not find that doctrine in the books. In the debate in the House of Lords on the execution of Colonel Hayne by the British at Charleston the lord chancellor and the ministerial side argued that a prisoner taken in arms in violation of parole was liable to instant execution without other form of trial than that necessary to identify the person. The opposition denied the ministerial doctrine. The Earl of Shelburne said:

The practice in the late war was totally different - A great degree of ignominy and stricter confinement were the consequences of breach of parole. Persons guilty of that offense are shunned by gentlemen. But it had never before entered into the head of a commander to hang them.

Earl of Effingham said:

The lord chancellor’s quotation from Grotius related to spies and not prisoners who had broken their paroles.

But admit that prisoners of war may be put to death for violation of parole—and it seems only just and reasonable that they should be where the breach of faith betrays the adversary into disaster or results in any serious injury to him—it will not be said that the extreme penalty should attend every case. This case if a case at all is not an aggravated but a very mitigated case. He took no part in the action. He was not in arms, but he was with the enemy and belonging to their service; he was prisoner of war like the rest.

Under these circumstances the Government ought I think to discharge this man from the sentence of death; and may also consider whether to order his detention as prisoner of war, or in consideration of

EARLY EVENTS IN MISSOURI, ETC. 373

the error of the sentence and of his confinement as a felon waiting execution of death to order his release on parole.

I believe the analysis I here submit presents a fair view of the force and effect of the evidence and of the true merits of the case; but as I differ so entirely in my conclusions on it from the commission and General Halleck, I must respectfully request the President to read the entire record which in respect of the second charge is not long.

I have considered in this case only the questions it presents of public law. It involves also many questions of municipal law. A public enemy in arms is liable to be proceeded against according to the laws of war; an inhabitant of a country under martial law is liable to the code or system which the conqueror having driven out the laws and tribunals of the country may proclaim and establish. This I understand to be the foundation of martial law—to be recognized as valid in that state of things because arbitrary power is better than anarchy, and any law than no law. But I do not understand that our Government recognizes that state of things, or will base any system of executive orders and proceedings upon such theory or principle.

Under our municipal laws, State or Federal, these proceedings are of no validity. Military commissions are not a tribunal known to our laws, and military commanders have no power to inflict death except by sentence of courts-martial.

Respectfully submitted.

J. F. LEE,

Judge-Advocate.

Hon. J. J. CRITTENDEN. FRANKFORT, Ky., March 29, 1862.

DEAR SIR: I have carefully examined and considered an abstract of the evidence in the case of Col. Ebenezer Magoffin, of Missouri, who has been found guilty by a military court-martial* of violating his parole. This abstract was prepared by William T. Wood, esq., of Saint Louis, who is a native Kentuckian and with whom I have been acquainted from boyhood. I have arrived at the conclusion that the sentence of the court-martial ought not to be carried into execution.

First. Whatever may have been the influence and opinions of the witnesses of the prosecution respecting a parole of Magoffin it is very certain he did not regard himself as under parole not having accepted the paper left at his house by Colonel Hughes and which Magoffin returned to Hughes the 17th of December, three days before the expiration of the time prescribed in the paper given by Colonel Brown. Conceding that Magoffin was mistaken in the legal view he took of the matter and he was according to the military law under parole, should his life be forfeited for an honest mistake of his duty in the premises ?

Second. His departure from home before the 20th of December is satisfactorily accounted for. He was informed he would be assassinated if he remained at home, and all of the circumstances conduced to show he had reasonable grounds to believe the information he had received was true. Under the circumstances he thought his only plan of safety was in the presence of a sufficient number of his friends; and this accounts for his being found and taken prisoner at some battle fought in Missouri the past winter. From the evidence I learn he had no

* Magoffin was not tried by a court-martial, but by a military commission.

374 PRISONERS OF WAR, ETC.

command on that occasion and did not in fact participate in the engagement, which resulted in the defeat of the Confederate forces. If as the evidence and all of the circumstances conduce to prove Magoffin was there for personal safety only it explains the cause of his departure from home at the time stated.

With great respect, your friend and obedient servant,

JAMES HARLAN.

I concur in the views and petition set forth above.

J. B. TEMPLE,

President Kentucky Military Board.

I concur in the view set forth in the foregoing.

G. T. WOOD,

Member of Military Board.

JNO. W. FINNELL,

Adjutant- General Kentucky Volunteers.

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POSTSCRIPT

From the Diary of Mary Beckley Bristow

1862 April 12th.

. . . The letter I received from Cousin Sarah Stephens has distressed me and made my blood boil. . . . The unfortunate Colonel McGoffin, who is a prisoner in St. Louis, is lying on straw in a dungeon so damp that the water is all the time dripping on him. . . .

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From OR Series II, Vol. 4, pp. 317-318

AUGUST 20, 1862.

ADJUTANT-GENERAL:

A court of inquiry is directed by order of the President.

EDWIN M. STANTON, Secretary of War.

[Inclosure.]

HEADQUARTERS, Alton, Ill., July 26, 1862.

Col. WILLIAM HOFFMAN,

Commissary- General of Prisoners, Detroit, Mich.

SIR: I regret to report the escape of some thirty-six prisoners from this prison last night. They effected their escape through a hole or long trench dug under the wall on the west side and coming to the surface some six or eight feet from it and not far from the end of the sentinel’s post. The hole was first discovered by the sentinel at daylight. A thorough examination was made of the interior of the prison to find the opening on the inside. No place in the vicinity of the wall could be found. At length upon examining the interior of the buildings, sheds, &c., the opening was discovered on top of an old pile of brick masonry, some twenty inches or two feet beneath the roof of the shed, which has been used as a wash-house by the prisoners. There was no dirt or other indications of the digging visible on entering the shed, and the hole was found by climbing upon the masonry, where the dirt was packed away closely between the top and the roof of the shed.

318 PRISONERS OF WAR AND STATE, ETC.

The trench is some fifty or sixty feet in length and must be several feet below the surface to pass under the foundation of the wall. The work has probably been progressing for many weeks. Large knives were found at the outside hole which appear to have been used in digging through the clay and loam.

Among the prisoners who have escaped are Colonel Magoffin* and his two sons, Colonel Murrell and Captain Sweeney, a one-armed man. I have sent out several parties to scour the country in the vicinity with the hope that some of them will be captured. Many have undoubtedly crossed the river at this place, as several skiffs are missing.

1 have telegraphed the provost-marshal-general at Saint Louis and the commanding officer at Saint Charles, Mo.

I am, sir, very respectfully, your obedient servant,

F. F. FLINT,

Major Sixteenth Regiment, Commanding.

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