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 execu tive 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.

*

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.

Trial of John C. Tompkins, accused of bridge-burning, etc.

PALMYRA, Mo., December 30, 1861.

At a military commission which convened on Monday, the 30th day of December, 1861, at Palmyra, Mo., pursuant to authority derived from the major-general commanding the Department of the Missouri under the following order, to wit—

II. A military commission is hereby appointed to meet at Palmyra, Mo., on Monday, the 30th instant, or as soon thereafter as practicable, for the trial of such persons as may be brought before it.

Detailed for the commission: Col. John Groesbeck, Thirty-ninth Ohio Volunteers; Lieutenant-Colonel Tinkham, Twenty-sixth Illinois Volunteers; Capt. Henry T. McDowell; Capt. David C. Benjamin; Capt. Henry Binmore, assistant adjutant-general, who will act as judge-advocate and recorder. The commission will sit without regard to hours. By order of Major-General Halleck:

J. C. KELTON, Assistant Adjutant-General.

All the members of the court [commission] detailed as above being present, John C. Tompkins was arraigned upon the following charges, to wit:

CHARGE 1: Bridge, railroad and car burning.

Specification. That on the night of the 20th of December, 1861, the said John C. Tompkins with other persons unknown did unlawfully within the Military District of North Missouri burn and destroy one railroad bridge known as the Sturgeon bridge and also one other railroad bridge known as the "Long Branch bridge," and certain railroad ties, rails, tanks and cars, which bridges, ties, rails, tanks and cars formed a part of the common traveled way known as the North Missouri Railroad. This in violation of martial law prevailing in the said Military District of North Missouri and in the State of Missouri.

CHARGE 2: Giving aid and comfort to bridge and railroad burners.

Specification 1.-That the said John C. Tompkins did on the evening or night of Friday, the 20th of December, 1861, meet with other parties unknown and plot the destruction of two railroad bridges, to wit, the Sturgeon bridge and the Long Branch bridge, and certain ties, tracks, rails and cars, being part of and appertaining to the North Missouri Railroad.

Specification 2.-That the said John C. Tompkins did by his presence and advice upon the evening and night of Friday, the 20th of December, 1861, aid and assist and afford comfort and assistance to a party of armed men who on the night of

Friday, the 20th of December, 1861, burned and destroyed two railroad bridges, to wit, the Sturgeon bridge and the Long Branch bridge, and the track or a portion thereof of the North Missouri Railroad and sundry cars upon said track.

CHARGE 3: Aiding and abetting in the act of bridge-burning and in the destruction of a part or portion of the North Missouri Railroad and the cars and rollingstock thereof.

Specification. That the said John C. Tompkins did on the night of Friday, the 20th of December, 1861, aid and abet in the act of bridge-burning and in the destruction of bridges and in the destruction of a portion of the North Missouri Railroad and of cars upon the track of said railroad, by chopping with axes, by carrying fence-rails, by exciting language, &c.

CHARGE 4: Treason against the Government of the United States.

Specification.-In this, that John C. Tompkins did assume an attitude of open rebellion against the Federal Government by taking up arms against the same and by assuming and exercising the functions, duties and powers of a soldier or officer in the rebel army within the limits proper of the State of Missouri from and after or about the 19th day of December, 1861.

DAVID MCKEE, Major Black Hawk Cavalry.

The prisoner having been asked whether he had any objection to any member of the commission, and having replied, "I do not know the gentlemen; I have none," the oath prescribed by the Sixty-ninth Article of War was administered to the court [commission] by the acting judge-advocate, and as soon as the said oath had been administered to the several members of the commission the president thereof administered to the acting judge-advocate the oath prescribed by the Sixtyninth Article of War, the prisoner being present while the oaths were administered.

To the first charge John C. Tompkins, the prisoner, pleads not guilty. To the second charge John C. Tompkins, the prisoner, pleads not guilty.

To the third charge John C. Tompkins, the prisoner, pleads not guilty.

To the fourth charge John C. Tompkins, the prisoner, pleads guilty. The acting judge-advocate (Captain Binmore) laid before the commission telegrams as follows:

Brigadier-General PRENTISS:

North Missouri road torn up below last night.

HUDSON, December 21, 1861.

WM. BISHOP, Colonel, Commanding. HUDSON, December 21, 1861.

J. H. GAMBLE, Superintendent, Saint Charles: The North Missouri track is torn up and burned commencing eight miles from this place. Don't know how far south they have gone. Burnt the ties, bent iron and cut the telegraph poles and destroyed the wire and burnt water-tanks.

J. B. CLARKE,

Operator.

General PRENTISS:

The North Missouri road is badly injured.

HANNIBAL, December 23, 1861.

J. T. K. HAYWARD.

ADAM GOSLING, witness introduced, being duly sworn pursuant to the seventy-third Article of War is examined as follows:

Question. Where do you reside?

Answer. In the town of Sturgeon, Boone County, Mo.

Question. Where were you during the night of Friday, the 20th of December last?

Answer. At my house in Sturgeon.

Question. Were you there during all the night?

Answer. I was until I was taken away.
Question. Who took you away?

Answer. A body of about 300 cavalry.
Question. Armed cavalry?

Answer. The most were armed I think.

Question. Were they soldiers of the U. S. Army?
Answer, No, sir.

Question. How do you know that?

Answer. I am acquainted with most or many of them. I am acquainted with many of them and know them to belong or to have been with Price's army. I knew them near Sturgeon. They have been there all this fall until the Lexington fight; then they principally all left and went there.

Question. Do you know one Watson, called Captain Watson?

Answer. I never saw him before that night that I know of.

Question. Was he of the party that visited and took you?

Answer. Yes.

Question. Do you recognize this man as being there?

Answer. Yes, sir; I think I do.

Question. What did this man say or do on that occasion?
Answer. That man never spoke to me after I had seen him.
Question. How long did he stay at your house?

Answer. I presume he stopped in an hour, or perhaps half an hour.

Question. During their stay what did they do?

Answer. After they took me from my house as I passed my store we went into my store. I asked them if they would not go inside; they said they would. I opened the door, and they said they would go in and they went in; and they said they wanted their canteens filled and I filled them with liquor. I of course gave it to

them.

Question. Did you give it to them because of their force?

Answer. I was disposed to treat them the best I knew how.

Question. For what reason?

Answer. They would treat me the better.

Question. What had they against you?

Answer. I had been a Union man I suppose.

Question. Did they take you from your dwelling-house?

Answer. Yes, sir; they did.

Question. Did they demand you to go to the store?

Answer. No; they told me to go with them and as we passed up I asked them into the store.

Question. State whether they took any other property.

Answer. Not that I know of. We remained at the store from half an hour to an hour and a half.

Question. Charge your memory particularly and let the court know if you saw Tompkins there.

Answer. There is no question of his being there. I know he was in the crowd.

Question. Did you see Sturgeon bridge while it was burning?
Answer. Yes, sir.

Question. Was the prisoner there?

Answer. There is no question of his being there. I know he was one of the crowd but whether he was right close at the fire I could not be positive. I saw him before the fire and afterward.

PRISONER. I can prove I was not there by respectable ladies. I know I was at home asleep that night.

WITNESS. I know that after the bridge was burned we went to Long Branch bridge and he was there. When we returned back when the last bridge was burned we returned to Sturgeon, and we as a body passed over the railroad. Mr. Tompkins did not return but he was arrested on his way back.

Question. You have no doubt upon your mind as to his presence? Answer. I have not any.

Question. Have you not heretofore at a preliminary examination stated positively that he was there?

Answer. Yes.

Question. And were you not thoroughly certain of the fact that of all you saw there his name suggested itself to your mind first?

Answer. I so recognized him.

Question. Have you any knowledge as to whether this man is an enrolled soldier in Price's army?

Answer. No, sir; I have not.

Question. Is it your belief that he is?

Answer. I know nothing of that except I have no doubt by what he stated that he has been, but I don't know. I know that within the last few weeks a good many of them have returned from the army.

CAPTAIN FORBES, of the Twenty-second Missouri Regiment of U. S. Volunteers, was duly sworn pursuant to the seventy-third Article of War.

Question. State what you know of the prisoner being in arms against the United States.

Answer. When we turned off the main road down the lane that we went down before the fight I went down alone. I was to see if that was the lane, because we had a guide with us and he was not certain that was the lane. I went down the lane and discovered that was right, and he told me that was the place. I beckoned for the advance to come along, and just as we came along the pickets of their party turned in sight. They were not certain whether we were friends or foes and when we got within thirty yards of them I hallooed to them to halt and throw down their arms. We fired on them and knocked one of them. The prisoner I believe was shot through the skirt of his coat. He threw his arms down. I went on and told some of the men to stop there. The major was behind me. That is about all I know

of that case.

Question. Was this man one of the guard you have spoken of?
Answer. Yes; I had seen that man before then.

Question. State the circumstances.

Answer. The first time that Lieutenant-Colonel Morse went after Sweeney I went to where this man was doing business. I found two guns. He told me they were left for his own protection. I asked him when a man named Swabee had been there. He told me he had not been there for some time.

No further testimony being introduced, the commission finds the prisoner guilty as charged in the first charge and specification thereunder; also guilty as charged in charge 2 and as charged in specifica