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 frim Magoffin:
PRAIRIE [LEA] . [December] 16, 1861.
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 tis month. It was understood that I had until that time to deliverate 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 today from two sources that cospiracy has been nade 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,
The return of this second safeguard within the term of the first and the time expressly allowed him to considr 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 vioilation 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 prosiner of war like the rest. But I cannot see in what he has committed any viiolation 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 regared 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 he at libery 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 libery 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 as the end of it. The bearer is to retire, before that time of he may be seized and punished if he has given room for suspicion by delay of his own framing. Thought in case of safe - conduct, revocable at pleasure, bearer is allowed a proper time for his safe departure.