War of the Rebellion: Serial 114 Page 0373 EARLY EVENTS IN MISSOURI, ETC.

Search Civil War Official Records

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 forceand effect of the evidence and of the true merits of the case; but as I differ so entirely in my comclusions 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 to long.

I have considered in this case only the question it presents of public law. It involves also many question 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 recognize that state of things, or will base any system of executive orders and proceedings upon such theory or principle.

Under our mucicipal laws, State of Federal, these proceedings are of no validity. Military commissions are not a tribunal known to our laws, and milotary commanders have no power to inflict death except by sentence of courts - martial.

Respectfully submitted.

J. F. LEE,

Judge - Advocate.

FRANKOFORT, KY., March 29, 1862.

Honorable J. J. CRITTENDEN.

DEAR SIR: I have carefully examined and considered an abstract of the evidence in the casr of Colonel Ebenezer Magoffin, of Missouri, who has been found quilty 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 cinclusion 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 29th of December is satisfactorily accounted for. He was informed he would be assassinated if he remained at home, and all of the circumstances condiced to show he had remained at home, and all of the circumstances conduct 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 prisoners 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.

---------------