Thomas Hogg's Raid
"...sentenced to be hung by the neck until dead. Sentence of a Military Court in the Trial of Corvallis' T.E. Hogg ( sentence confirmed by General McDowell 1865) The official Corvallis city site describes T.E. Hogg as simply the "President of the Corvallis & Eastern" railroad. He was much more, and much less, than that.
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| A military execution, this one the commandant of the Civil War Andersonville prison camp, Henry Wirz. |
In nearly every article written about Thomas Hogg, the phrase 'colorful' is used, in the same sense that modern journalists might refer to Kenneth Lay of Enron, or the Bush family (of the Silverado S & L scandal), as 'colorful'. In Hogg's case, it's a euphemism for a convincing thief and scam artist, a man who bankrupted our community and nearly all who befriended him - the exceptions being his English publicist Wallis Nash - who arrived nearly penniless but became fabulously wealthy and sat on OSU's board (Oregon Agricultural College; nearby Nashville sits on the site of the former 2000 acre Nash estate and Nash Hall at OSU is named for him) and town founder Joseph Avery, who pushed the scheme in nearly every issue of his Corvallis Gazette, issues of which are available at the OSU library. Both had natural sympathies with Hogg, sharing his ethical lapses.
Avery was a slaver's advocate for many years preceding, and was an organizer of the Knights of the Golden Circle locally. The Circle was the precursor of the Ku Klux Klan (in fact, kuklos is Greek for 'Circle'), and which included the assassin John Wilkes Booth (and also, in an interesting 'twist', the slave owners who dominated the Cherokee nation after the Trail of Tears).
Nash shared the sympathies of the English aristocracy for the Southern planters, sympathies which nearly resulted in War, and his law partner was Judah P. Benjamin, Confederate Secretary of State who fled for England after the Civil War.
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| Above: OSU's Waldo Hall, in this photo under construction in 1907, stands where the Hogg House stood. |
Hogg showed up in Nash's London office after the war, claiming to be a Southern Colonel and "that after the war, that left him a prisoner at Fort Alcatraz, in San Francisco Bay, he spent some time recovering fully from wounds and sufferings in war, and then he found himself at loose ends, all his property in New Orleans, where he had been a merchant, having disappeared. He said that he had heard of large Government grants of lands in Oregon for road construction, and that more to give himself an object of his travels than with any definite ideas about values and possibilities, he had journeyed northward from San Francisco, being financed by his brother, a well-known government contractor there; and, he added in a smiling parenthesis, as strong a Northerner as he was a Southerner." (Wallis Nash, Oregon There and Back in 1877)
In reality, there is no record of Hogg being a Colonel in the Confederate army. The only Thomas E. Hogg mentioned in the Confederate documents was a lieutenant, in the 1st Arizona, which accords well with his banditry in Matamoros. He was, perhaps, a 'Colonel' in the same sense that many Southerners long after the war, claimed to be Colonels.
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| Colonel Foghorn Leghorn. Below: Colonel Sanders. |
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Colonel Sanders and the Oscar nominee, Colonel Foghorn Leghorn, were no exceptions. Southern exaggeration of achievements after the war was so great that General Sherman prophesied that "if we see many more histories of the War come out of the South we shall discover that the entire War was fought on the Southern side by Robert E. Lee and a one-armed orderly, and that they killed all the Yankees who didn't run away".
Even the possibility that he was a lieutenant is questionable, for Thonas Hogg, the lieutenant mentioned above, went by the name of 'Tom' Hogg, rather than T.E., and wrote of his experiences in the 'Fall of Corinth', which might conflict with 'our' Hogg's experiences, as we know them, in Central America.
There is also the discrepancy in the last name. Hogg and his brother never got the name straight, the latter spelling it Hoag, the former Hogg. The middle name also provides a problem, since Hogg gave it sometimes as Egerton, Egenton and Edgerton and Edgarton. Sir Thomas Edgarton was Donne's employer and the name wascommon in the 19th century, as a Google search shows.
Nash was hired by Hogg to accompany him to Corvallis and write an book urging English investors to send their money to Hogg, which many did. Nash suspected his effort needed to be padded for the sake of credibility by the presence of another. He asked his neighbor, Charles Darwin for a recommendation. On Darwin's advice, Nash hired Henry Nottidge Mosely, a naturalist who had accompanied Charles Darwin in the Challenger, to travel with him. Nash wrote the book (To Oregon and back in 1877) praising Hogg's idea, pretending to be a simple voyager and without ever intimating that he had been hired as a publicist for the project. The Englishmen who entrusted Hogg with their money, lost it.
Whatever his real name might have been, 'T.E. Hogg' of Corvallis was arrested in 1864.
The Warning:
"WAR DEPARTMENT, Washington, October 9, 1864. Major-General MCDOWELL, San Francisco:
A party of rebels at Havana have undertaken to seize a steamer running between San Francisco and Idaho. There are fifteen of them, and ten had started in two or three squads before October 1. They are to rendezvous at Idaho November 15, and embark as passengers. Their captain is Thomas E. Hogg, alias Edgerton, alias Esson. His executive officer is named Bradshaw; purser is William Black, of New Orleans; midshipman, Edward Swain, New Orleans; engineers, John Smith, alias Huddle, Mobile; Timothy O’Grady, New York; George Murch, New York, for some time a resident of Mobile- Thomas Crattan, New Orleans Hogg, Black, and Smith were to leave Havana, via Saint Thomas, on 5th or 6th instant.
C. A. DANA. Asst. Sect'y of War
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| Military executions of outlaws and guerrillas, as well as others, after trial by military courts, was not uncommon during the Civil War. Many sentences were commuted to life imprisonment. After the War, a nation repented of its wartime hysteria as unconstitutional and released nearly all prisoners, including Hogg. Above: an African-American soldier executed after being accused of attempted rape. Below: soldiers adjust the ropes round the necks of the people convicted of aiding in the assassination of Abe Lincoln. |
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| Above, a glass-plate photo of Lewis Paine, convicted in the Booth plot. Below, a cartooned postcard issued after Hogg's raid. It's entitled 'Southern Gorilla'. |
"On November 16, 1863, at Matamoros, Mexico, with five men, Hogg boarded the schooner Joseph L. Gerrity, American registry, carrying 122 bales of cotton, bound for New York City. The second night out, Hogg and his men seized the ship, stranding crew and officers on the coast of Yucatan November 26. From there, Hogg sailed to Belize, British Honduras, where he told the authorities that the ship was a Confederate blockade runner from the Texas coast and sold the cargo. He was reported and identified by the stranded crew and then pursued by British authorities, but he successfully eluded capture." -Tom Stewart
Hogg subsequently surfaced in Panama with a band of confederates to take passage on the Salvador> The plan, as it emerged at their trio, was to take steps to capture the steamship, to arm it, and then proceed, flying a Confederate flag, to the robbery of California shipping. Had he succeeded, he might well have changed the course of American history. The Morgan, Forbes and Roosevelt families were then building their fortunes in the opium trade on clipper ships based in San Francisco. The plan failed and Hogg was sentenced by a military court to hang.
The Appeal
GENERAL ORDERS, DEPARTMENT OF THE PACIFIC, No. 52. San Francisco, Cal., June 27, 1865.
Before a military commission which convened in the city of San Francisco, Cal., May 22, 1865, pursuant to Special Orders, No. 111, dated May 18, 1865, headquarters IDepartinent of the Pacific, San Francisco, Cal., and of which Col. Edward McGarry, Second Cavalry California Volunteers, is president, were arraigned and tried— T. E. Hogg, E. A. Swain, John S. Hiddle, W. L. Black, T. J. Grady, R. B. Lyon, and Joseph Higgin. CHARGE: Violation of the laws and usages of civilized war. Specification—In this, that they, the said T. E. Hogg, E. A. Swain, John S. Hiddle, W. L. Black, T. J. Grady, R. B. Lyon, and Joseph Higgin, being commissioned, enrolled, enlisted, or engaged by the Government of the so-called Confederate States, at war with the United States, did, on or about the 10th day of November, 1864, come on board the U. S. merchant steamer Salvador, then lying in the friendly port of Panama, New Granada, in the guise of peaceful passengers, without any visible mark or insignia indicating their tine character as enemies, and did so enter on board of the said steamer, secretly armed and provided with manacles, with the intent, purpose, and object of treacherously rising on the master, crew, and unsuspecting passengers of said steamer when she had reached the high seas, and of capturing her and the property aboard, and of converting her into a cruiser to prey on the commerce of the citizens of the United States. To which charge and specification, the prisoners having declined to plead, was entered the plea of not guilty.
FINDING AND SENTENCE. The commission, having maturely considered the evidence adduced, finds the accused, T. E Hogg, E. A. Swain, John S. Hiddle, W. L. Black, T. J. Grady, I?. B. Lyon. and Joseph Higgin, as follows: Of the specification guilty. Of the charge, guilty. And the commission does therefore sentence them and each of -them, the said T. E. Hogg, E. A. Swain, John S. Hiddle, W. L. Black, T. J Grady, H. B. Lyon, and Joseph Higgin, to be hung by the neck until they are dead at such time and place as the proper authority may direct, two-thirds of the members of the commission concurring therein. II. The proceedings having been submitted to the major-general commanding the department, the following are his orders in the case:
The commission overruled the objection made by the prisoners to question asked Captain Davenport by the judge-advocate, as to his opinion whether there was sufficient opium in the possession of the prisoners to drug the crew. The objection was well taken and should have been sustained, Captain Davenport not having been introduced as an expert, and not having been shown to have the necessary special knowledge to qualify him to act as such. The question as to the amount of opium in the prisoners’ possession having been entertained by. the commission, the application to have the package produced from the trunk of the prisoner containing the medicine was proper, and should have been granted. Moreover, as the specification does not allege that the prisoners contemplated the use, in any way or degree, of poisons in carrying out their designs, but that they intended rising in arms on the master, crew, and passengers, and as the use of poisonous drugs is an aggravation not specified in the charges to which they were called on to plead, the subject should not have been taken up, and was properly abandoned. it was objected that there was no accuser; that a person charged with crime must be confronted with his accuser; that no name was attached to the charge and specification. The charges were signed by the judge-advocate of the department, which, under the circumstances, was entirely in accordance with the practice in military service. A charge signed by a commissioned officer and ordered to be investigated by the general instituting the court is all the form that is required. Prisoners are always confronted with the witnesses against them, but in the nature of the service it constantly happens they cannot be, and they seldom are, confronted by the officer who prefers the charges, and who may know nothing of the case save from the reports he receives. Objection was made that the order instituting the court did not direct the trial of the prisoners by name. The order was in the usual form. ft is not necessary that the names of the prisoner or prisoners to be tried should be mentioned in the general order convening the court. The order for their trial may be, and generally is, separate from the general order. It is frequently in way of an indorsement on the charges, or in the way of special instructions to the judge-advocate or to the commanding officer having the custody of the prisoners. It is stated in the defense of the prisoners that no copy of charges, or the amendment to the charges, was served on them anterior to trial; also, that as a matter of right and justice they were entitled to a separate trial; that the record does not show the incidents of the trial, and that the names of all the witnesses were not furnished them by the judge-advocate. The prisoners made no plea at the time of their arraignment that they were not furnished copies of the charges against them. Even if it had been made, the plea would not have been valid further than to delay the proceedings, which delay they did not ask. (Dc Hart, p. 147.) Moreover, it is stated by the judge-advocate that it is not true they were not furnished with copies of the charges and of the amendment. The former he says were given them five days before they were arraigned. Before a court-martial, as in a court of civil judicature, several offenders who commit an offense in concert may be tried either jointly or separately. (Simmons, p. 140.) The accused cannot claim as a right that a list of witnesses shall be furnished them. (Bennet, p. 63.) The judge-advocate states, however, that, as far as was known at the commencement of the trial, a list was furnished. It is further stated that a paper entirely respectful to the commission, which the prisoners’ counsel had prepared and conceived to be a part of their legitimate defense, was rejected, and “returned to them with an implied rebuke, and no entry suffered to be made of it on the record.” Such a paper as described should have been received and attached to the record. The commission could have given it such weight, if any, as it might in their judgment be entitled, but they should not have refused to receive and entertain it. Also, that the counsel have been compelled to sit absolutely dumb iu the presence of the court. That they have been so restricted in asking questions under cross- examination that it was impossible for them to bring out their defense. The commission departed from the long and well-established practice of military courts in suffering counsel to address them at all. Military courts deal directly with the prisoners on trial. The latter are entitled to counsel to advise them what to do or say, and counsel may prepare the prisoner’s defense, and it has latterly been conceded that the counsel may read it, but it should be the prisoners’ own defense and not that of the counsel for them. Simmons (pp. 183, 184) says: They, the counsel, are not to offer the slightest remark, much less to plead or argue. A lawyer is not recognized by a court-martial, though his presence is tolerated as a friend of the prisoner to assist him by advice in preparing questions for witnesses, in taking notes, and shaping his defense. De Hart (pp. 132, 133) says: Courts-martial have always been tenacious on the point, and to a certain extent not permitting the counsel to interfere in the proceedings by remarks or by pleading and argument is very wise and necessary. Bennet (p135) says: It is an admitted maxim in all courts-martial that the counsel is not to address the court or interfere in any manner in the proceedings; his presence is only tolerated as a friend of the prisoner. Most of the objections raised in the name of the prisoners were purely technical. Of these, not especially noticed,, fourteen were as to the reception of certain papers found in the possession of the prisoners, and of copies of official correspondence growing out of the case. But the main paper, the instructions of Mr. Mallory, the Secretary of the Navy of the lately so-called Confederate States, after it was proved to be genuine, was so admitted by the prisoners and admitted as having been found in their possession. This and other unimpeached and unquestioned evidence abundantly proves the few and simple facts alleged in the specification, and makes it unnecessary to go further into the question of the testimony. This brings us to the consideration of the question: Do the facts alleged in the specification and proven by the evidence justify the proceedings had in the case l Have the prisoners committed any offense; and if so, is it one the commission is competent to try~ It is claimed that under the Constitution the prisoners are entitled to trial by jury; that if their acts in the Bay of Panama constitute any offense of which the United States could have cognizance they should, under the act of 1818, have the benefit of trial before the U. S. civil courts. It is to be borne in mind that the prisoners have not been tried by the military court as citizens of the United States violating its statute laws, but as belligerent enemies to the United States for a violation of the rules of war. They confessedly formed part of a hostile force engaged in civil war against the United States. in reference to such— The following principles are assumed as incontrovertible: That civil wars are not distinguishable from other wars as to belligerent and neutral rights; that they stand upon the same ground and are governed by the same principles; that whenever a portion of the State seek by force of arms to overthrow the Government and main- tain independence the contest becomes one de facto of war; that in such contests the principles of public law in relation to belligerents must govern, and all the rights which a state of war gives to public enemies are to be allowed to the respective parties engaged in them. (Stevenson to Palmerston.) Belligerent rights have been accorded by the United States to the parties engaged in this rebellion against them. With those rights go also the duties and liabilities of belligerents, if, “as belligerents,” persons violate the laws and usages of war, violations not provided for in any statute or by the common law, can the U. S. civil courts take cognizance of such violations~ If not, what tribunal shall ~ During war cases arise which require investigation and frequently those which require punishment. Courts-martial have only a limited jurisdiction. They take cognizance of offenses arising under the act for the government of the armies of the United States known as the Rules and Articles of War, which act, save in a few exceptional cases, affects only persons in the U. S. military service, It is the court which administers the “military law.” Cases which arise in the course of war not provided for by the civil courts, which affect persons or cases not liable to the U. S. Rules and Articles of War, are tried by military commission. (General Orders, No. 100, War Department, of 1863.) Military commissions, though not created by statute, are yet recog- nized by law and by the U. S. Supreme Court to exist, and their action is provided for by Congress as a part of the machinery by which war is carried on. it is the tribunal before which cases arising under what may be called the common law of war are tried. Section 5, act of July 18, 1862, calling forth militia, &c., provides that the President shall appoint a Judge-Advocate-General, to whom shall be sent the records and proceedings of all “courts-martial and military commissions.” Section 30, act of March 3, 1863, for enrolling and galling out the national forces, &c., provides that in time of war “murder, robbery, arson,” &c., “shall be punished by the sentence of a general court- martial or military commission.” Section 38, same act, declares that persons found lurking or acting as spies in or about any of the fortifications, &c., of the United States shall be triable by a general court-martial or military commission. Section 1, act of July 2, 1864, provides that department commanders may carry into execution sentences of military commissions, as well as of courts-martial, against guerrilla marauders for robbery, violation of the laws of war, &c. in cx partc Vallandigham (1st Wallace, U. S. Supreme Court Reports, p. 243) the court refused to review the proceedings of a military com- mission on certiorari. The question of jurisdiction was not decided Justice Wayne, in delivering the opinion of the court, referred to Gen- eral Orders, No. 100, of 1863, defining the jurisdiction of courts-martial and military commissions, and said that it applied in cases of rebellion and civil war, as well as in foreign war.It may be here remarked that the existence of a common law of war is recognized in the act of Congress establishing rules and articles for the government of the armies of the United States, in the oath pre- scribed by the Sixty-ninth Article for the members of a court-martial, who are required, in cases not explained by the said articles, to be governed by the “custom of war in like cases.” Military courts are not restricted iu their jurisdiction by any territorial limits. They may try in one State offenses committed in another, and may try in the United States offenses committed in foreign parts, and may try out of the United States offenses committed at home. They have to do only with the person and the offense committed ; all else is simply a matter of convenience, of witnesses, of the means of assembling a court, &c. It is conceded that the act alleged to have been committed by the prisoners may be in violation of the laws of 1790, 1818, or 1862, and may constitute offenses cognizable by the U. S. civil courts; but if so, this would not affect the case now under consideration, nor prevent its trial by the military commission, for by one and the same act the prisoners may have committed several offenses, each to be tried and judged by the tribunal having, respectively, jurisdiction of it. An offense, in its leg 1 signification, means the transgression of a law. A man may be compelled to make reparation in damages to the injured party, and be liable also to punishment for a breach of the public peace in consequence of the same act, and may be said, in common parlance, to be twice punished for the same offense. Every citizen of the United States is also a citizen of a State or Territory. He may be said to owe allegiance to two sovereigns, and may be liable to punishment for an infraction of the laws of either. The same act may be an offense, or trans- gression of the laws of both. Thus an assault upon the marshal of the United States and hindering him in the execution of legal process is a high offense against the United States, for which the perpetrator is liable to punishment, and the same act may be also a gross breach of the peace of the State, a riot, assault, or a murder, and subject the same person to a punishment under the State laws for a misdemeanor or felony. That either or both may (if they see fit) punish such an offender cannot be doubted. Yet it cannot be truly averred that the offender has been twice punished for the same offense, but only that by one act he has committed two offenses, for each of which he is justly punishable. He could not plead the punishment by one in bar to a conviction by the other; consequently this court has decided in the case of Fox vs. The State of Ohio (5 Howard, 432) that a State may punish the offense of uttering or passing false coin, as a cheat or fraud practiced on its citizens, and in the case of The United States vs. Mongold (9 Howard, 560) that Congress, in the proper exercise of its authority, may punish the same act as an offense against the United States. (Moore vs. State of Illinois, 20 Curtis, p. 9.) Therefore, a soldier assaulting his commanding officer in the streets of San Francisco might by the same act be liable to punishment for the offense of a breach of peace, and under the Ninth Article of War for the capital offense of striking his superior officer. And an officer who should commit forgery would be liable to be tried by the civil courts for felony and by the military courts “for conduct unbecoming an officer and a gentleman.~~ It is maintained, moreover, that the prisoners were captured before they reached the “high seas;~~ that the going on board of the Salvador,if that be claimed as the overt act in their offense, was done within the jurisdiction of a neutral power, whose jurisdiction is claimed to be absolute and exclusive; that the act might be punishable by the laws of New Granada, but is no infraction of the laws of war, “for there could be no war between the belligerents within the jurisdiction of a foreign power.~~ To this it must be said, as a matter of fact, that the bay or gulf Of Panama is not within the exclusive jurisdiction of any power. That the place, by the testimony before the commission, where the Sal- vador was at anchor when the prisoners came on board was more than a league from the shore in the open roadstead of Panama, and clearly on the high seas as regarded in this connection. See cases of United States v. William Ross, 1 Gallatin, page 624; United States v. Griffin & Bailsford, 5 Wheaton, page 204; Kent’s Commentaries, page 34 et seq. It is tine that publicists agree that of all “principles of public law there are none more sacred than those which secure the immunity of neutral territory from the exercise of acts of hostility by a foreign power,” and that “the law of nations forbids all use of neutral territory for hostile purposes, and declares that the rights of war shall only be exercised within the territory of the belligerents, on the high seas or without the jurisdiction of any other power.” Yet, notwithstanding, had the act and the arrest of the prisoners been made within the limits claimed by the neutral power of New Granada, it would have been a less departure from the rule, and more clearly an exception to it, than was made by General Jackson in the invasion of the then Spanish province of Florida in 1818, or by Sir Allen McNab in the invasion of the State of New York at Schlosser in 1837. And General Jackson’s act was defended by John Quincy Adams, sustained by our Government as an act of self-defense, and acquiesced in by the Government of Spain; and the invasion of New York was approved by the British Government as having been— One in the strictest sense of self-defense, rendered absolutely necessary by the circumstances of the occasion, for the safety and protection of Her Majesty’s subjects, and justified by the same motives and principles which, upon similar and well-known occasions, have governed the conduct of illustrious officers of the United States. (Mr. Fox to Mr. Webster, December 19, 1840.) In the course of the negotiations to which this case gave rise, and before the action of Great Britain was acquiesced in by the United States, as finally it was, our minister at London, Mr. Stevenson, and two of our Secretaries of State, Forsyth and Webster, though denying the applicability of it to the case of the Caroline at Schlosser, con- curred in the exception to the rule of inviolability of neutral territory claimed by Great Britain. When the extent of the evil is considered which the act of these men in the Bay of Panama would, if successful, have brought upon the people of the United States, and it is borne in mind that the neutral country which they had adopted as the base from which they intended to set this expedition on foot is without a navy or any military power afloat, and that that Government was treated by our naval forces with every consideration possible, it will not be questioned that even had there been the violation of neutral territory asserted to have been committed in this case, it would be claimed and admitted to have been a measure “in the strictest sense of self-defense absolutely necessary, by the circumstances of the occasion, for the safety and protection” of American citizens. This, however, is beside the question before the commission, which is—did the prisoners, as charged, violate the rules and usages of civilized war ~ It is claimed their act “was a stratagem in war perfectly allowable under the laws and usages of civilized war.” That (as said by Halleck, p. 402) stratagems in war are snares laid for an enemy or deceptions practiced on him without perfidy and consistent with good faith. They are not only allowable, but have constituted a great share of the glory of the most celebrated commanders. This is true, and all of this true, for it must be borne in mind that it is not every stratagem that is allowed, but only such as are “without perfidy and consistent with good faith.” Was the act of the prisoners without perfidy and consistent with good faith? The attack by the English on two Spanish frigates and their capture in the harbor of Barcelona in 1809 is cited as a case in point, and from it the defense deduce that “it is allowable to go on board an enemy's ship in the guise of passengers with the intent of rising upon the officers and capturing them, as an act of war.” it is to be noticed, in the first place, that the very case cited is denouneed by Ortolan, who refers to it as of the same character as that of the English frigate off Calais in 1756, described by Yattel as an “unworthy stratagem deserving severe punishrment.~~~ But the case is not one in point. The English did not come on board the Spanish vessels in the guise of passengers. Spanish ships of war, in time of war, lying in their own ports, can hardly be presulned to be in the way of carrying passengers and of receiving as such a large enough number of men, and only men, to overpower them and capture their ships. The English came upon the Spaniards under false colors, and, owing to this and their want of vigilance, they surprised, attacked, and captured them. They came on board not as passengers, but as open enemies. “It is allowable to sail and chase and approach a ship under false colors, but not to fire or attack under them.” The ship that suffers itself to fall in the power of an enemy who thus approaches it must accept the consequences of its want of vigilance and preparation; but this is not the case in point. Analogy to the case of the prisoners is sought to be found in case of a spy sent out by one commander to go within the lines of another; and it is contended that the office of spy, though an infamous one, punishable by a speedy, disgraceful, and violent death, is not against “time rules and usages of civilized war:” much less so, then, the cases of the prisoners; and Halleck, page 406, section 26,is cited to show that “the employment of spies is considered a kind of clandestine practice— a deceit in war allowable by its rules.” But can an act be said to be allowed by a code which act that code visits with a violent and disgraceful death? Certainly not. It would be an utter confusion of terms to so rule. That which is allowable by the rules of war in the matter of spies is not the “office of spy,” but time employment of them. A commander may, without reproach to his character or his being held to an account, employ a spy; but the spy engages himself with the full knowledge that if caught in flagrante delicto he will, by the laws of war, be hung, and that his employer will have no right to make any reclamation or retaliation on his account. Whatever, therefore, there is of analogy in this case to that of the prisoners is not to their benefit. Halleck on International Law, pages 401, 402, is correctly cited for the rule applicable to this case. He says: War makes men public enemies but it leaves in force all duties which are not necessarily suspended by the new position in which men are placed toward each other. Good faith is, therefore, as essential in war as in peace, for without it hostilities could not be terminated with any degree of safety short of the total destruction of one of the contending parties. This being admitted as a general principle, the question arises: How far we may deceive an enemy and what stratagems are allowable in war? Whenever we have expressedly or tacitly engaged to speak truth to an enemy, it would not be perfidy in us to deceive his confidence in our sincerity. But if the occasion imposes upon us no moral obligation to disclose to him the truth, we are perfectly justifiable in leading him into error either by words or actions. Feints and deceptions of this kind are always allowable in war. It is the breach of good faith, express or implied, which constitutes the perfidy and gives to such acts the character of lies. The only and the simple question to determine is: Was there, by the act of the prisoners, any breach of good faith expressed or implied ~ in offering themselves to the master of the Salvador as peaceful passengers, paying him money as a consideration of being carried to a neighboring port, was there not an implied promise on their part they were to conduct themselves as passengers and not as enemies, and that they were not to rise on him and seize him and his property? Can it be presumed the master did not receive them under the implied pledge that if they came on his ship they were not to take it? In so doing they were clearly guilty of perfidy and “breach of implied faith.” It is argued that the prisoners are guilty of no offense, because no overt act was committed; that their design was frustrated whilst yet in “bare intention;” that the law allows them a locus penitentiar. To this it is said the bare intention of the prisoners and their locus penitentiar ended when, secretly armed and provided with manacles, they set foot on the Salvador with the intent to seize her. Their project had been planned a great ways off, and after its con- ception the prisoners had to undertake long voyages between different foreign countries, make extensive preparations at various places, resort to many stratagems to avoid discovery, and encounter many delays in the fulfillment of their designs. More than six months intervened between the instructions given and received at Richmond, Ya., and the going on board of the Salvador in disguise in the Bay of Panama— a locus penitentiar ample enough for the development of any qualms of conscience, if any there were, to be forthcoming. With the foregoing qualifications and exceptions the proceedings and findings in the cases of T. E. Hogg, E. A. Swain, J. S. Hiddle, W. L. , T. J. Grady, R. B. Lyon, and Joseph Higgin are approved and confirmed. In view of the fact that, both by statute and common law, punishment is measured to a great extent by the consequences that have flown, rather than by those which might have flown, from the crime committed; that a man who maliciously shoots another is punished more or less as his victim dies or recovers; that an attempt to commit a crime, accompanied by failure, is not punished with the same severity as an attempt that succeeds, and that the prisoners utterly failed; and in view, further, that punishment for violation of the laws of war has especial reference to the future conduct of the belligerent party to which the violators belong, and, as under present circumstances, such party is unable to do further harm, the sentence of death awarded by the commission is mitigated as follows: To confinement in the State penitentiary, at San Quentin, Cal., T. E. Hogg, the leader, for the term of his natural life, and E. A. Swain, John S. Hiddle, W. L. Black, T. J. Grady, iLl. B. Lyon, and Joseph Higgin, each for the term of ten years. III. The military commission of which Col. Edward McGarry, Sec- ond Cavalry California Volunteers, is president is dissolved. by command of Major-General McDowell: It. C. DRUM, Assistant Adjutant- General.
The Parole Appeal
WAR DEPARTMENT, BUREAU OF MIL1TARY JUSTICE, September 16, 1865. The SECRETARY OF WAR FOR THE PRESIDENT: In the case of Edward A. Swain, lately a midshipman in the rebel Navy and now in confinement at San Francisco, Cal., under sentence of a military commission, an application for pardon being referred to this Bureau,it is reported to the Secretary of War for the President, on the 6th of September, instant, that the record of the prisoner’s trial had Dot reached its files, but that from a general order of Major-General McDo~~e1l,in which the proceedings of the military commission before which he was tried were fully reviewed, it appeared that the prisoner, with certain associates, had been convicted of an atrocious crime for the- guilt of which the brief imprisonment to which they had been subjected could not, in the opinion of this office, be considered an expiation, and that in the absence of the record no just reason was found for disturbing the execution of their sentence. The record of the trial is now at hand. It appears from it that the prisoner, with T. E. Hogg, John S. Huddle, W. L. Black, T. J. Grady, R. B. Lyon, and
Speciftcation.—In this, that they, the said T. E. Hogg, E. A. Swain, John S. Riddle, W. L. Black, T. J. Grady, R. B. Lyon, and Joseph Higgin, being enlisted, enrolled, commissioned, or engaged by the Government of the so-called Confederate States, at war with the United States, did, on or about the 10th November, 1864, come on board the U. S. merchant steamer Salvador, then lying in the friendly port of Panama, New Granada, in the guise of peaceful passengers, without any visible mark or insignia indicating their true character as enemies, and did so enter on board of said steamer, secretly armed and provided with manacles, with the intent, purpose, and object of treacherously rising on the master, crew, and unsuspecting passengers of said steamer, when she had reached the high seas, and capturing her and the property aboard, and of converting her into a cruiser to prey on the commerce of the citizens of the United States. The prisoners were severally sentenced to be hung by the neck until dead. The proceedings and findings of the court, with certain qualifications and exceptions which need not be enumerated in this report, were approved by Major-General McDowell, commanding Department of the Pacific, and the sentence of death mitigated to confinement in the State penitentiary at San Quentin, Cal., as follows: T. E. Hogg, the leader, for the term of his natural life, and each of the other prisoners enumerated for the term of ten years. The proof is that a few (lays before the 10th of November, 1864, Acting Rear-Admiral George F. Pearson, of the U. S. Navy, commanding the Pacific Squadron, being on board his flag-ship, the Lancaster, lying in the Bay of Panama, was called on by Captain Douglass, commanding the American packet steamer Salvador, then also lying in the said bay, who informed him that a number of passengers whom he considered dangerous would probably come on board his ship, to sail on the 10th of November, and requested that a sufficient force be sent on board to protect the ship, his passengers, and himself from harm, while he should examine the luggage of the passengers, in which he expected to find implements of war. Admiral Pearson complied with this request by sending on board the Salvador on said 10th of November, at a concerted signal, Commander Davenport, of the Lancaster, with an adequate force of armed sailors and marines, who took possession of the Salvador, got her immediately under way, and stood down the bay, following the Lancaster, which ship had weighed anchor and stood out in charge of the admiral. In the meantime the search of baggage, as well as the persons of a portion of the passengers, had been commenced, and in that which was Identified as belonging to these prisoners were found numerous pistols with ammunition, about two dozen pairs of shackles, or handcuffs, and numerous papers, showing their connection with the rebel naval serv- ice. Among them was a letter of instructions from S. It. Mallory, styling himself “Secretary of the Confederate Navy,” to Acting Master Thomas E. Hogg, of that Navy, containing directions in detail for the seizure of the Salvador, or her consort, the Ganlemarela, without fail, and her conversion into an armed rover under the rebel flag, to prey on the commerce of the United States in the Pacific Ocean in concert with the Alabama, and to communicate with the captain of that vessel, Semmes, at the earliest moment possible. Charts of portions of the Pacific Ocean and coasts were also found, three Confederate flags and a crew list, from which it appears that Swain, the present applicant for pardon, was an acting master’s mate in the service and was to have been executive officer, or second in command of the prize. It may be proper to remark in this connection that it was shown at the trial that the preparations for the seizure and conversion of the Salvador or her consort had been in progress for many months; that two or more rifled cannon, to be mounted on tier, with small-arms and ammunition for her equipment, had, in disguised packages, been shipped up the coast; her officers and crew, detailed and in different squads or divisions, were, under various pretexts, hovering near, waiting to concentrate and meet the ship at some concerted time and place. On reaching the mouth of the bay, about 100 miles from Panama, the prisoners were formally arrested and transferred to the Lancaster, in which ship they remained until sent by the steamer Saginaw to San Francisco for trial. The proof of the charge specified against the pris- oners was perfectly conclusive. The most important document presented in evidence was the letter of Mr. S. It. Mallory, styling himself “Secretary of the Confederate Navy.” Its genuineness was proved and subsequently admitted by the prisoners, who, so far from denying their purpose and intent to follow its instructions by capturing the Salvador without fail at whatever cost of blood and suffering to the unarmed and peaceful officers and crew of this merchant ship or to their unsuspecting fellow-passengers, seemed rather to glory in that purpose as entitling them to share the honors of that indomitable little Confederate Navy, which, as they boasted in their defense before the court, “had swept the ocean, lit battle fires in many a sea, and illumined the darkness of night with many a burning wreck.” Nothing could more fully disclose the animus of these men than this vainglorious boasting of what they style, “the whole fearful and tragic mainly enacted by the Alabama and the Shenandoah in robbing and burning whole fleets of defenseless fishing vessels without firing a gun or incurring the smallest risk of “tragic” consequences to them- selves; a work of heartless plunder and destruction which, aside from its guilt, should cover every one engaged in it with shame, and at which every sentiment of honor and manhood revolts with scorn. It was contended by the accused, in their defense before the court, that the act charged against them as a crime, even had it been carried fully into execution, “was a stratagem in war, perfectly allowable under the laws and usages of war,” which they, as recognized belligerents, had a right to execute, but that, admitting the criminality of the act, if it had been executed, it having been frustrated, and having existed only in intention, the law allowed them a locus pemitentiar (place or time for repentance), and as they had committed no overt act, they were not properly chargeable with any crime. It was clearly shown by Major-General McDowell in his review of the case in General Orders,No 52, promulgating the findings and sentence of the court, that these positions were untenable- that the laws and usages of war allowed no other stratagems than such as were “without perfidy and consistent with good faith;” whereas these prisoners treacherously entered upon the Salvador as peaceful passengers, under the implied pledge that they would conduct themselves as such, and not as enemies. Their action in this was perfidious and in violation of good faith. Their guilty enterprise had been many months in preparation, had involved long voyages and various arrangements at places distant from each other, during all which they had opportunity for repentance arid the relinquishment of their guilty purpose. But when in pursuit of that purpose, with arms and manacles concealed in their baggage and on their persons, they entered on the Salvador for its consummation, the locus penitentiar had ceased to exist, and it was too late for them to claim its benefits. This office is of the opinion that the charge, as specified, is fully sustained by the testimony, and that, in view of the fearful consequences that might have resulted from their crime, the findings anti sentence of the commission were completely warranted, on the ground that— Both the statute and common law measure punishment to a great extent by the consequences that have flown, rather than by those which might have flown, from the crime committed; that an attempt to commit a crime, accompanied with fail- ure, is not punished with the same severity as an attempt that succeeds, and that the prisoners utterly failed; in view, too, that punishment for the violation of the laws of war has especial reference to the future conduct of the belligerent party to which the violators belong, and as under present circumstances such party is unable to do further harm. The sentence of death was mitigated by Major-General McDowell, commanding, as follows To confinement in the State penitentiary at San Quentin, Cal., T. E. Hogg, the leader, for the term of his natural life, and E. A. Swain, John S. Hiddle, W. L. Black, T. J. Grady, R. B. Lyon, and Joseph Higgin, each for the term of ten years. The application now pending for the pardon of Edward A. Swain was evidently prepared nnder an impression on the part of the peti- tioners that he had been tried for piracy and was wider sentence of death. They urge their petition in his behalf mainly on the ground of his youth and his unexceptional character as a mere stripling prior to the war. It appears, however, from their admission, that he was not conscripted or forced into the rebel military service, but entered it voluntarily. It appears from documentary evidence produced at the trial, as already shown, that he was detailed as executive officer, or second in command on board the prospective prize of these prisoners, the Salvador, when she should become a Confederate rover. His appointment to such a position (understood to be the most influential and responsible in an armed ship) implies full maturity of age and experience. After a careful review of the whole case as exhibited in the record this office remains of the opinion that no just ground is presented for the pardon of this prisoner or for a further mitigation of his sentence. It believes, as already intimated, that the sentence of death pronounced against these offenders was fully warranted by the testimony; that in view of all the circumstances which attended their guilty enterprise and of the bloody and destructive conseqnences which it threatened, it was a remarkable exercise of clemency on the part of the reviewing officer to commute the punishment of these men to imprisonment only. The few months’ confinement to which they have been subjected cannot be viewed as an approximation even to a just expiation of their crime; and to pardon them now or farther mitigate their punishment would seem to manifest indifference or indulgence toward one of the most perfidious, cowardly, and atrocious crimes that marked the progress of the rebellion. J. HOLT, Judge-Advocate- General.
Hogg was in San Quentin until 1866 when he was released as part of a General Amnesty. Whether it was Hogg or Nash who concocted a story about Hogg's past is not known, but Nash repeated to the town's citizens a tale of Hogg as a Southern Colonel who had been recovering in California from "wounds and sufferings", and had now arrived in Corvallis to build wagon roads (the Santiam and Yaquina Wagon Roads) and most importantly a railroad from Newport to Boise which would channel the produce of the entire Northwest through Corvallis.
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| Above: Chinese RR workers |
500 Chinese laborers were contracted for the railroad, in San Francisco, where Hogg's brother lived. The scheme was pitched by Joseph Avery through the town newspaper, which he owned, and the entire city responded by buying bonds supposedly backed by land, land which the town learned, when the scheme collapsed, were never even owned by Hogg, Avery or Nash. The land in question turned out to be the acreage the government granted railroads upon completion.The extent to which the three went, in order to claim land, was - even for the times - unbelievable.
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Left: Elk City, Oregon, 'depot' of Hogg's railroad |
| Sir A few days ago at the earnest solicitation of leading Indians in the Siletz Reservation I wrote the Hon Com of Ind Affairs a letter of the usual course -- adopted a copy of the letter will send to the Agent at Siletz, and there the matter will end, fearing this and realizing this great and urgent importance of immediate action I send you some further reasons. The Corvallis & Yaquina Wagon Road Co. have a land grant of 3 miles north and south of their road, running parallel with this Agency. This Co have sold to an English firm(Nash) who are building a R.R. nearby in the site of this Wagon road -- this compy have extended there survey &c as to include a considerable part of the Agency in fact takes in the Agents dwelling. |
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| - Royal Bensell Indian Agent Siletz 1879 | |
| "In 1889, a 1-1/2 mile stretch of railroad track was laid across the pass near the present location of Highway 20. Materials and a crude boxcar were hauled to and assembled on the site. The boxcar was then loaded with freight and pulled by mules, back and forth, across the pass. Hogg then claimed that he had successfully built a railroad across the pass, and, on that basis, tried to "loophole" his way to more land grant acreage. The additional land grant never came through and the short stretch of track near the Santiam Pass was all that would ever be be built by the Corvallis and Eastern R.R. " -Tom Stewart | |
Hogg was removed from the railroad in 1893. He moved to Philadelphia where he died of 'apoplexy', ironically, on a street railroad car in 1898. The "boxcar" on Santiam Pass remained until WWII when it was salvaged for raw materials.