Summary: The Commission disallowed Mish's claim for $3,500 worth of agricultural goods on the grounds of disloyalty. His son appealed this decision to the Court of Claims in 1900.
Items Claimed:
| Item Claimed: | Amount Claimed: | Amount Allowed: | Amount Disallowed: |
| One Horse | 125.00 | 0 | 125.00 |
| Two Horses, at $175- Each | 350.00 | 0 | 350.00 |
| Two Horses at $150- Each | 300.00 | 0 | 300.00 |
| Forty one Head of Cattle, @ an average of $60. each | 2460.00 | 0 | 2460.00 |
| Six Hundred Lbs of Bacon @ 25 cts per Lb | 150.00 | 0 | 150.00 |
| Three Barrels of Flour @ $10- per Bb. | 30.00 | 0 | 30.00 |
| Sixteen Bus of Corn @ $1- per Bu | 16.00 | 0 | 16.00 |
| Sixty Lbs of Butter @ 40c | 24.00 | 0 | 24.00 |
| Forty Bus of Wheat @ $2- per bu | 80.00 | 0 | 80.00 |
| Twenty Bus of Oats @ 50c per bu | 10.00 | 0 | 10.00 |
| Total | 3545.00 | 0 | 3545.00 |
Claims Summary:
Mr Mish is a farmer is 59 years of age & resided during the war in Augusta Co. Va. He voted for the ordinance of secession, 'says threats were made of burning his farm if he refused.' He does not tell who made the threats, or describe the circumstances to enable us to judge whether he was in real danger by refusing. There were votes in Augusta Co. against the adoption of the ordinance of secession, & very many electors did not vote at all at that Election. Their farms are probably still standing. In answer to the 18th printed question he says he "was paid for some grain which I sold to them (the Confederates)". It appears by this that he furnished the Confederates with supplies. He also says, he "had some money in Bank and contracted for bonds but never received them" It would seem he was willing to aid the Confederacy by investing in its bonds. We think his sympathies were with the Confederacy. The claim is disallowed
Testimony: Henry Mish
United States of America State of Virginia S.S.
I. W.G. Riley, a commissioner selected and designated by the Commrs. of Claims appointed under the Act of Congress of March 3d 1871, to take and record testimony. Do hereby certify that the reason for taking the following depositions is and the fact is the matter of claim of Henry Mish, vs. The United States of America and the witnesses herein named being material and necessary being first duly sworn answers as follows.
Question 1st Witness says I am 59 years old, I reside in Augusta Co. Va. My occupation a farmer. I have resided in Augusta Co. all the time.
2d Witness say I resided at the same place from the 1st April 1861 to June 1st 1865. I did not change my residence in that time
3d Witness says I never passed beyond the Military or Naval lines of the U.S. and enter the rebel lines.
4th Witness says I never took an oath of allegiance to the Confederate States. I did take an Amnesty oath, after the close of the War in 1865, at Staunton. I never was pardoned by the President, I had no necessity for asking a pardon
6th Witness Says I never was in any manner in the service of the Confederate States
7th Witness Says I never held any office in the Confederacy whatever.
8th Witness Says I never was a clerk or employed in any capacity in the Confederate States.
9th Witness Say I never was in any capacity in the service of the Confederate States or Army.
10th Witness says I never was a soldier sailor or Marine, in the Confederate Army or Navy. I furnished no substitute to the Confederacy, and have not been connected with any department of the Confederate Government. I never had charge of teams or Wagons. Boats or vessels in the use of the Confederate Army or Government.
11th Witness Say, I never was employed in any business connected with the Confederate Government. I only I first sold to J. Bumgardner, individually some corn, which he sold to the Confederate Government, and afterwards let the Officers, as they had orders to impress, if I refused, for which I was paid in part. I never give any information to any officer or soldier of the Confederate Army or Navy.
12th Witness Says I never was employed in the manufacture of any Articles whatever for the use of the Confederate Government or Army.
13th Witness Says I never was employed in the collection or purchase of stores or supplies of any kind for the Confederate Government, nor had no interest in any contract for the same.
14th Witness says I never was engaged in blockade running or illicit traffic. I had no interest or share in any goods, wares or merchandise brought into or exposed from the so-called Confederate States.
15th Witness Says I did not leave the Confederacy between the 19th April 1861 and the 19th April 1865.
16th Witness Says I never was interested in any Vessel used in navigating the Ocean to or from any port in the Confederacy.
17th. Witness says I never was arrested by the Confederate Government. Nor was I arrested by the United States Government.
18th Witness Says, I had property taken by the Confederate Government. They took a horse, a large quantity of Corn, Oats, and Wheat. I never was paid for any Article impressed, but was paid for some grain which I sold to them (the Confederates)
19th. Witness says I was threatened with damage to my property, by burning of my Barns, and I had cattle killed by poisoning, and clubbed to death, on account of my Union sentiments
20th Witness Says I never was molested, except as answered in my answer to the 19th question.
21st Witness Says I never contributed anything to aid the Confederate Government, but did contribute Meat, Flour & Butter to the soldiers of Genl. Crooks Army (U.S.)
22d. Witness Says I had no oppertunity to do anything, except to Genl. Crook's Army.
23d. Witness Says, I had relatives in both Armies. I did not supply them with any equipments of any kind.
24th. Witness Says I had some money in Bank and contracted for Bonds but never received them. I never did anything to support the credit of the Confederate States.
25th Witness Say I never give any volunteer aid and comfort to the Confederate Government.
26th. Witness Says I never was engaged in making raids into the United States from Canada, nor in the destruction of the Commerce of the U.S. on the lakes and rivers adjoining Canada.
27th Witness says I never was engaged in holding in Custody any person held as prisoner of War by the Confederate Government, for political causes or otherwise.
28th. Witness says, I never was a member of any society for the imprisonment or persecution of any person on account of their loyalty to the United States.
29th. Witness Says I never was a paroled prisoner of the United States.
30th Witness Says I have never held any Office in The United States Government, nor educated at West Point or other school of the United States Government.
31st. Witness Says I never received any pass from the Confederate Government.
32d Witness says I was under no disabilities by the 14th Amendment to the Constitution of the United States Government since the War.
33d Witness says At the beginning of the rebellion I sympathized with the Union Cause and not the rebellion. I voted for Secession, threats threats were made of burning my Barns if I refused to vote for the Ordinance of Secession. After the adoption of the Ordinance of Secession I adhered to the Union and against the State.
34th. Witness says, I solemnly declare that from the beginning of hostilities against the United States, to the end thereof my sympathies were constantly in favor of the Union and that I did nothing of my own free will and accord to aid the rebellion, or attempted to do anything by word or deed to injure said cause or retard its success, and I was at all times ready and willing when called upon to aid and assist the cause of the Union, or its supporters, so far as my means and power and the circumstances of the case permitted.
Further this deponent saith not.
August 30th, 1871. Henry Mish
Testimony: Michael Carwell
Michael Carwell, a witness introduced to prove the taking of property, being first duly sworn answers as follows.
Ques. 1st Witness says I am 60 years old, I reside in Augusta Co. Va. My occupation is a farmer. I was not present when the property named in the petition of the Claimant was taken.
2d. Witness say I did not see any of them taken
4th. Witness says they were taken on the 7th of June 1864, off the farm of Claimant, by Genl. Crooks command.
6th. Witness say I do not know that there was any Officer present at the taking.
7th. Witness Says About two or three hours, before the taking I saw all the Cattle in the field and asked the claimant if he was going to remove them, and he replied that he was not, that he would rather the Union Army should have them, than the rebels.
8th. Witness Says The Cattle were drove away by soldiers in Genl. Crooksof command. They camped for one night, about 3/4 of a mile from the claimant.
10th. Witness says I do not know the use made of the property taken. I am satisfied that the whole of the property mentioned in the petition was taken, by the United States soldiers under the command of Genl. Crooks
11th Witness says There was no complaint made. The claimant appeared to be satisfied that they had gotten them.
12th Witness says There was no receipt asked for or given that I know of.
13th. Witness say I think it was taken in the day time, about One or two Oclock in the afternoon. None was taken secretly.
14th. Witness Says Genl. Crooks command, camped that night about 3/4 Mile from Claimant, it was encamped from Claimant, it was encamped only one night. There washad been no battle or skirmishing near there. I knew none of the Officers.
15th. Witness Says The Cattle 41 head were all good beef. The horses were in good condition. I know nothing about the bacon, flour or corn, mentioned in claimants petition
19th. Witness Says I have no doubt that all the property mentioned in the claimants petition was taken for the use of The Army.
20th. Witness says Col. Allen, told me that they had just come through the Mountains and were compelled to take all they could for the use of the Army.
21st. Witness Says From what Col. Allen told me, I think had a necessity for the articles
22d Witness Says Col Allen told me that they would pay all loyal men, for the property they took.
23d. Witness Says I think those who took the property mentioned in the petition were justified in taking it, as Col. Allen told me that the Commanding General had given orders to do so, and I believe the property should be paid for.
Further this deponent saith not.
August 30th, 1871. Michael Carwell
Testimony: George W. McCutchan
George W. McCutchan, a witness introduced to prove the loyalty of the claimant, being duly sworn answers as follows
Ques. 1st. Witness Says, I am 46 years old, I reside in Augusta Co Va. My occupation is a farmer. I have known the claimant about 15 years. I reside about 10 miles from him. I saw him frequently during the war, and talked with him about the War. My opinion is that he was loyal to the United States during the War, and was so regarded by some of his neighbors, and some he was not, but I did regard him as a loyal man. I don't know that he did anything, for the United States, nor nothing voluntarily for the Confederate Government. I I do not think he would have been considered loyal to the Confederate Government had it succeeded.
Further this deponeth saith not
August 30th. 1871
GW McCutchan
Testimony: George Ruebush
George Rubush, a witness introduced to prove the loyalty of claimant being duly sworn answers as follows.
Ques. 1st. Witness says, I am 60 years old. I reside in Augusta Co. Va. I am a farmer by occupation. I have known the Claimant about 18 years. I live about 3 1/2 miles from him; I saw him frequently during the war, and talked with him about the War. He was loyal to the United States Government, he was bitterly opposed to the rebels and cursed them. He was regarded as a loyal man by his neighbors.
I never knew him to do anything for or against the Union, and did nothing for the rebels voluntarily He was too loyal to the United States, to have been considered loyal to the Confederacy had it succeeded.
Further this deponent saith not.
August 30th, 1871
George Ruebush
Testimony: Henry Mish
Claimant Henry Mish, recalled to prove the taking of property, first being duly sworn answers as follows,
Ques. 1st. Witness says I saw them take my horses, and know that 41 head of cattle were taken, I think the cattle taken were worth fifty dollars a head. My horses were worth what is charged. I think there was not less than Eight Hundred pounds of bacon was worth 25 cents a pound There was 3 barrels of flour, worth ten dollars a barrel. I think they took about ten bushels of Corn, worth One dollar a bushel. All the horses and Cattle were in good condition all that I have charged.
2d. Witness Says, The property was taken in June 1864, by soldiers in the Command of Genl. Crook's There were some officers present, but I do not know who they were. The horses and cattle were taken out of my fields, and the Bacon and flour from my house. I did not get a receipt, nor did not ask for one. The property was taken in the day time about One or two oclock P.M. It was taken secretly.
3d. Witness Says I think the property mentioned in my petition was taken for the use of the Government, and that the Government is fully justified in paying me for it.
Further this deponent saith not
August 30th 1871 Henry Mish
Sworn to & subscribed before me this 30th day of August 1871
WG Riley United States Commissioner and Speical Com: for state of Va
Testimony: John Engleman
State of Virginia County of Augusta S.S.
Mr. John Engleman, George Ruebush, Michael Carwell, & George W McCutchan, all of the County and State aforesaid being duly sworn do depose and say, that they are well acquainted with Henry Mish, of said County and State, and know of our own knowledge that said Mish was during the late war of rebellion a truly loyal citizen of the U.S. that throughout said rebellion, he never by act or deed aided or gave support to the Confederate Government, its officers or adhereherents, nor served said Confederate Government in any capacity whatever. We do further swear that as here examined the claim presented by said Mish, for payment of supplies, &c taken by the US forces under Gens Crook & Averill, and do firmly believe the same to be correct, and that the prices named therein, are just and fair.
John Engleman, George Ruebush, M Carwell, GW McCutchan, Sheriff AC
Sworn to and subscribed before me this day of 24th day of April 1871 at Staunton Va
James W Baldwin N.P.
Testimony: John B. Engleman
We do hereby certify that we have known Henry Mish, of Augusta County Va before, during and subsequent to the late rebellion, and know that he was during said rebellion an outspoken Union man, fully loyal to the cause and the Government of the United States, and opposed to the Confederate Government, its officers and adherents. We do further certify that we know him to be a reliable and conscientious man, and that the utmost reliance is to be placed in any statement made by him, regarding property taken by the U.S. forces. Nor have we any interest in his claim.
John B. Engleman U.S. Storekeeper In Rev, William H. Frenger U.S. Storekeeper In Rev
Testimony: Defendant's Brief on Loyalty
IN THE COURT OF CLAIMS.
Henry Mish, vs. The United States.
Defendants' Brief on Loyalty.
I have carefully examined the abstract of testimony prepared by claimant's attorney, and find that it is correct. References in this brief are, unless otherwise specified, to the pages of the abstract of evidence.
The claim is for stores and supplies, to the value of $3545.00 alleged to have been taken from the farm of Henry Mish in Augusta county, Virginia. It has been considered by the Commissioners of Claims, and by them rejected. The following is their report on the claim:-
"Mr. Mish is a farmer, is 59 years of age, and resided during the war in Augusta county, Virginia. He voted for the ordinance of secession--says threats were made of burning his barn if he refused. He does not tell who made the threats, or describe the circumstances, to enable us to judge whether he was in real danger by refusing. There were votes in Augusta county against the adoption of the ordinance of secession, and very many electors did not vote at all at that election. Their barns are probably still standing. In answer to the eighteenth printed question, he says he 'was paid for some grain which I sold to then (the Confederates).' It appears by this that he furnished the Confederates with supplies. He also says he 'had sone money in bank and contracted for bonds, but never received them.' It would seem he was willing to aid the Confederacy by investing in its bonds. We think his sympathies were with the Confederacy The claim is disallowed."
But little remains to be said. The facts speak for themselves. The claimant voted for secession. (See report Treasury Department)
Concerning this he says: "I voted for secession. Threats were made of burning my barns if I refused to vote for the ordinance of secession," (Rec. p. 6). As the Commissioners point out in their report, there were votes against the ordinance in Augusta county, and many electors did not vote at all. One of claimant's witnesses, J.B. Carwell, nays: "Some of the Union men (of Augusta county) voted against secession and some did not," (Rec. p. 4).
The claimant states, (Rec. p. 4): "I had property taken by the Confederate government. They took a horse, a quantity of corn, oats and wheat. I never was paid for any article impressed, but was paid for some grain which I sold to them (the Confederates)."
As a matter of fact, there are on file in the Confederate archives five vouchers containing claimant's signature for bacon, oats, hay and straw, aggregating $3,077.75. They will be produced for the inspection of the court at the hearing of the case.
It might perhaps be well to call the attention of the court to the fact that the claimant's son, John W. Mish, who testified with great positiveness to the loyalty of his father, was in 1861 but 11 years of age.
That claimant was manifestly disloyal is, I think, most clearly established.
Respectfully submitted, Jas. A. Turner, Assistant Attorney.
Vouchers in the case of HENRY MISH vs. UNITED STATES, No. 8618 Cong.
The following vouchers bear claimant's signature:
1. April 1863, 2208 pounds of bacon: $2,208.00
2. June 1863, 539-3/4 pounds of bacon: 539.75
3. September 1864, 320 pounds of hay: 9.60
4. December 1864, hay and straw: 35.20
5. February 1864, oats and hay: 285.00
Total: $3049.55 $3077.55
The following vouchers are unsigned:
Three vouchers bearing date of August and October for hay: $222.90
One voucher made out in the name of Henry Mish, Augusta County, dated March 1864, for oats and straw: $1,034.25
The immediately foregoing were unpaid "for the want of funds."
Jas. A. Turner Assistant Attorney.
Testimony: Claimant's Supplemental Brief on Loyalty
IN THE COURT OF CLAIMS.
HENRY MISH, vs. THE UNITED STATES. 8618 Congressional.
CLAIMANT'S SUPPLEMENTAL BRIEF ON LOYALTY.
Since the briefs on loyalty were filed, viz. in January 1900, additional testimony on that question has been taken for the claimant as follows:
JOHN W. MISH testifies: Age 50 years. Resided during the war near Middleburg, Virginia, on the old home place, with Henry Mish. Henry Mish was loyal to the cause of the Union, witness thinks, never, so far as witness knows, voluntarily and willingly rendered any assistance to the Confederate cause. As regards supplies which, according to the vouchers exhibited in this case, Henry Mish furnished to the Confederate Government, viz. on April 6th 1863 bacon to the value of $2308, on June 9th 1863 bacon to the value of $539.75, on December 20th 1864 hay and straw to the value of $35.20, on February 29th 1864 oats and hay to the value of $285 and September 1st 1864, hay to the value of $960, the Confederates came and impressed the property so far as witness knows; they came there, he knows, and took them when they wanted them; they would press what they wanted and take it for persons did not sell. (Page l). Lived with Henry Mish throughout the war and, so far as he knows, Henry Mish never voluntarily sold supplies to the Confederacy. He uniformly and consistently during that whole period declared himself favorable to the Union cause. So far as witness ever knew of, he never voluntarily rendered any assistance to the Confederacy of any kind whatever.
Cross-examination.
If the Confederates got the supplies enumerated at all, they impressed them. Does not recollect dates but knows that at different times they came and impressed various supplies. Does not know whether it was the custom of the Confederates to pay Union men for supplies taken from them. Deceased claimant was threatened, more especially in regard to stock. A short time before Hunter raided the valley, the Confederates came to him and ordered him to take his cattle and deliver them over to the Confederate authorities at some point which they designated. (Page 2). He did not do this, however. A short time after that General Hunter got the cattle. Knows of deceased claimant's aiding several Union men to go North through the lines; he aided the two Carwell boys, witness thinks, and R. A. Helms; there were others but he does not think of their names. Of the circumstances of his aiding these men in the way mentioned only knows what he has heard; heard him say he had assisted them but was not present when assistance was rendered.
(Objection here made by the Attorney for the Government to the testimony of the witness as to what he heard deceased claimant say in this matter--objection on the ground that the testimony is hear-say).
Union men were pretty roughly treated by the Confederate officers; does not know so much about the Confederate soldiers. Does not think there was much feeling manifested against them by their Confederate neighbors. (Page 3). Deceased claimant was threatened on account of his union sentiments, but does not know of his ever being molested. When the Confederates came to his place after the cattle mentioned, they threatened to arrest him and put him in prison. Does not remember ever having heard any of their threats. No one in his presence threatened deceased claimant except as already stated in reference to the cattle, claimant was as courageous as the average Union man in that locality; he was not a timid man. Does not remember the language of deceased claimant but remembers that he was always jubilant over the success of the Union army; does not remember the exact battles or his exact words; heard him say he wanted to see Gen. Lee's army beaten. Does not know whether his memory is as good now as it was in 1897. (Page 4).
J. B. CARWELL testifies: Age 55 years. Not related to the claimant or interested in the claim. Lived during the war about a mile north of Middleburg, Virginia, and was acquainted with Henry Mish. Was a Union man and heard Mr. Mish express himself as favorable to the Union, The practice of the Confederates in that locality was to take supplies if the owners refused, to sell them. Has no personal knowledge of the circumstances of the taking of certain hay, straw, oats and bacon by the Confederates from Mr. Mish in 1863 and 1864. Mr. Mish rendered some aid to Union sympathizers during that period. He gave witness money to go North, and he did go North. He helped Mr. Helms and J. H. Garwell, brother of witness, to escape from the Confederacy and go North. Does not think he ever voluntarily assisted the Confederate cause. Does not of his own knowledge know whether he was ever threatened or molested because of his Union sentiments. (Page 7). He was generally regarded in that community as a Union man.
Cross-examination.
Mr. Mish, when he assisted witness to go North, gave him about $30 in gold; there was a $20 gold piece and a $10 gold piece. There was no consideration for this noney and witness never repaid it. Was not present when deceased claimant, as testified, assisted J. H. Carwell and Mr. Helms to go North; what he knows of this matter Mr. Helms and his brother told him when they were togethergoing up North during the war. Met Mr. Helms at Clarksburg, West Virginia, in 1864, he supposes, in the fall or Winter. Mr. Helms was then on his way to Philadelphia. Does not know the time when he (witness) left his home to go to West Virginia; thinks it was in September; it was before his brother and Mr. Helms went away. (Page 8). Referring to this testimony, as stated by the Attorney for the Government, that he went to West Virginia in November or December 1863, does not remember dates, but thinks "you" (this to the Attorney for the Government) have it right." Does not know how long it was after he left home that Mr. Helms left; met him in Clarksburg after witness went there, probably a day or so afterward. The reason why he testified in 1897 that he is the only one who knows of deceased claimant's aiding was that he; received aid himself, while in the other cases the parties told him of it. Means to say now that he is the only one he knows of deceased claimant having aided. Has no present knowledge of deceased claimant ever being threatened on account of his Union sentiments. Such statements as he has made in this connection were based on hear-say; heard Mr. Mish say he was so threatened. Does not know of any particular man who voted against secession and does not know that anybody did vote against it. Does not of his own knowledge know how men who voted against secession were treated because of so voting. (Page 9).
SUMMARY.
This testimony not only disposes of the affirmative defence attempted for the Government but materially strengthens the case affirmatively made for claimant. As definitely as can be expected in such circumstances, it is proved by the testimony of the son of deceased claimant that none of the supplies covered by the Confederate vouchers were voluntarily furnished by him. This witness was some 2313 or 2414 years old when the Confederate Quartermaster authorities got these supplies, just the right age to have the most distinct recollection of all the facts. He testifies positively that be knows that, while he has no recollection as to the particular dates shown by these vouchers, he knows that at different times the Confederates did go to his father's place and impress supplies; also that the Confederates came there and to other farms thereabouts and took supplies when they wanted them; would press what they wanted if the owners would not sell. (Pages 2 and 3 sup.). His further statement that if the confederates got these supplies at all they impressed them, if it is to be regarded as a mere conclusion, is certainly a very logical and safe conclusion.
The other witness, J. B. Carwell, testifies that he has no knowledge of the circumatances of the taking from deceased claimant by the Confederates of supplies of the kinds referred to by the vouchers but that the Confederates forcibly took such supplies as they wanted in that locality from persons who refused to sell them. (Page 5 sup.). John W. Mish tells of his father's assisting J. B. Carwell, his brother, J. H. Carwell and one Helms to escape through the lines and go North. It appears that he was not present and did not see what his father did in this connection, but he testifies that his father told him of it. He also says there were others whom his father assisted, or whom in the same way he heard of his father's assisting to go North, but that he could not recall their names. (Page 3 sup.). J. B. Carwell furnishes most convincing details of the assistance to him and his brother and Helms given by deceased claimant in their escape from Confederate territory. He says it was money furnished to him by Mr. Mish for that sole purpose, some $30 in gold, which enabled him to make his escape. His knowledge of the manner of the escape of his brother and Mr. Helms and of the assistance rendered by deceased claimant was derived from them immediately afterward, while he was in their society in loyal territory. He says he met Helms in Clarksburg, West Virginia, a day or two after his own escape into that territory and then heard these particulars of the ease of Helms and J. H. Carwell. (Pages 5 and 6 sup.).
John W. Mish narrates, as a threat to his father because of his union sentiments, a circumstance which, if it is not to be regarded as such a threat or molestation, at least illustrates the Confederate practice of which both these witnesses speak, of impressing supplies in that locality. He says his father was ordered to deliver his cattle to Confederate authorities at a designated point, but did not do so, and that soon afterward Gen. Hunter got these same cattle. (Page 3 sup.).
The witness Carwell testifies, not only that deceased claimant was generally regarded in that community as a Union man but that, being himself a Union man, he heard Mr. Mish express himself on the side of the Union.
This testimony, with that which was presented in my former brief, certainly calls for a finding of loyalty.
Respectfully submitted, Gilbert Moyers Attorney for Claimant.
Testimony: Defendant's Supplemental Brief on Loyalty
IN THE COURT OF CLAIMS.
Henry Mish v. The United States No. 6818, Congressional.
DEFENDANTS' SUPPLEMENTAL BRIEF ON LOYALTY.
Immediately following the filing of my former brief on loyalty, claimant's counsel had remanded the case at bar for the purpose of taking testimony relative to the matter of the sale by the claimant of supplies to the Confederacy, with a view to explaining away this fact so damaging to the claimant's interests. In this, however, he has most lamentably failed. His additional testimony weakens an already weak case and leaves the court, I submit, with absolutely no ground upon which they can make a finding on loyalty favorable to the claimant.
The testimony taken consists of the depositions of two witnesses, both of whom testified previously in this case under the rules of the court, to wit, in 1897. In this later testimony of theirs nothing new has been secured by claimant's counsel; and many contradictions of their former testimony are made in the vain efforts of the witnesses to strengthen an already absolutely hopeless case.
The first of these two witnesses, John W. Mish, states with the utmost positiveness that "if the Confederates got the supplies enumerated at all, they impressed them" (Claimant's Supp. Brief, p. 3); adding that, since he lived with claimant, his father, throughout the entire war of the rebellion, he most certainly would have known it had claimant sold any supplies whatever to them. And claimant's counsel, in his "Summary" (p. 8, Supp. Brief) sees fit to say that "it is proved by the testimony of the son of deceased claimant that none of the supplies covered by the Confederate vouchers were voluntarily furnished by him. This witness was some 23 or 24 yaars old when the Confederate quartermaster authoritias got these supplies, just the right age to have a most distinct recollection of all the facts."
It is a matter of record that this witness was born in October, 1849 (Claimant's Brief on Loyalty, p. 6); and Consequently at the outbreak of the war he was but 11 years old. Therefore, in 1863 and 1864, when these supplies were sold by his father to the Confederates, he was not, as claimant's counsel states, "some 23 or 24 years old, # # # # just the right age to have a most distinct recollection of all the facts," but was some 13-14 years old, just the age which would cause him today to have a most indistinct and unreliable recollection of these facts.
It is worth while to here call to the attention of the court once more the words used by claimant when in 1871 he testified relative to the matter of the sale of supplies to the Confederates. On that occasion he said (Record p. 4): "I had property taken by the Confederate Government. They took a horse and a quantity of corn, oats and wheat. I never was paid for any article impressed, but was paid for some corn which I sold to them." It will be seen by a glance at the list of vouchers attached to this and to my former brief on loyalty that, in five different vouchers, the claimant receipts for a total of $3077.55, money paid him for the supplies enumerated in said vouchers. Accordingly it follows, in the light of the claimant's words above quoted, that these supplies were not impressed as alleged by claimant's son, since claimant "never was paid for any article impressed." The logic of this seems to me to be irrefutable.
Since John W. Mish has seen fit to put himself in conflict with the statements made under oath by his deceased father, it might perhaps be well to call attention to one or two of the several self-contradictory statements made by him in his latter day testimony. In his 1897 testimony (p. 10), the following is of record:-
State whether or not he (claimant) ever aided Union men to get through the lines, or render them other assistance.
Ans. Not to my personal knowledge; I was young then.
In his testimony of 1900 (p. 3) the following occurs:-Q. Did you know of the claimant ever having aided any Union men to go north through the lines?
Ans. Yes, I know of several.
Q. Do you remember their names, or can you state about how many of them there were?
Ans. Two Carwell boys, I think he aided, and R.A. Helms.
This in itself is, of course, a direct contradiction of his own testimony and must result in weakening whatever favorable influence it might otherwise have had with the court.
The other witnessss testifying in 1900, J. B. Carwell, states that both he and his brother, as well as R. A. Helms, were assisted by the claimant in escaping from the Confederacy and going north, although he acknowledges that his information relative to both his brother and Mr. Helms is hearsay (Claimant's Supp. Brief on Loyalty, pp. 5 & 6). This witness was but 15 years old in 1861, and it is perhaps due to their then youthfulness that the stories of John W. Mish and the witness Carwell do not agree with the testimony given by the man R. A. Helms in 1897. This witness Helms was then asked (Record pp. 1 & 2):-
Q. State whether or not you were a Union man (during the war).
Ans. I was not sir.
Q. State whether or not he (claimant) rendered assistance to Union sympathizers and soldiers.
Ans. I do not know about that; only so far as to let their families have provisions.
Comment is unnecessary.
Again, the following, occurring in the testimony of witness Carwell, is worthy of mention: In 1897 this witness was asked (Record p. 6):-
Q. State whether or not you know of the Confederates threatening him (claimant) because of his Union sentiments.
Ans. They threatened him just the same (as) they did the rest of the Union people.
In January, 1900, the same witness was asked (Record, p. 7):-
Q. Did you know of your own knowledge whether the claimant was over threatened or molested because of his Union sentiments?
Ans. I do not.
In conclusion, in reference to the claimant casting his vote in favor of secession, I would respectfully ask this court whether a mere threat to burn of barn burning is to be held sufficient to excuse such an ultra-disloyal act as this,- a fact confessed to by the claimant himself. Is it to be held to be duress sufficient to excuse such an act? And if so, is claimant's unsupported statement to this effect, unaccompanied by even the names of the parties alleged to have made the threats, or any statement of the circumstances under which said threats were made, if made they were, to be held to be sufficient proof that he was so threatened?
It would seem to me that this court can not make a finding favorable to the claimant upon the issue of loyalty.
Respectfully submitted, Jas. A. Turner, Assistant Attorney.
Vouchers in the case of HENRY MISH vs. UNITED STATES, No. 8618, Cong.
The following vouchers bear claimant's signature:
1. April, 1863, 2208 pounds of bacon: $2,208.
2. June, 1863, 539-3/4 pounds of bacon: 539.75
3. September, 1864, 320 pounds of hay: 9.60
4. December, 1864, hay and straw: 35.20
5. February, 1864, oats and hay: 285.
Total: $3077.55
The following vouchers are unsigned:
Three vouchers bearing date of August and October for hay: $222.90
One voucher made out in the name of Henry Mish, Augusta County, dated March, 1864, for oats and straw: $1,034.22.
The immediate foregoing were unpaid "for the want of funds."
Jas. A. Turner Assistant Attorney.
Vouchers already examined by court on former hearing.
Testimony: Claimant's Reply Brief
IN THE COURT OF CLAIMS
Henry Mish v. The United States No. 8618 Congressional
CLAIMANT'S REPLY TO DEFENDANT'S SUPPLEMENTAL BRIEF ON LOYALTY
Replying to defendant's supplemental brief on loyalty, filed January 22nd, 1902, we have to state that we stand corrected as to the age of John W. Mish, son of claimant, and witness in this case. Counsel for the defendant is correct in stating that the record shows this witness was eleven years old in 1861.
Referring now to the testimony of claimant, we desire to call attention to the below quoted portion of his deposition taken August 30th, 1871, while his claim was pending before the Commissioners. On Page 2 of said deposition, answer 11, we find the following:
Witness says "I never was employed in any business connected with the Confederate Government. I first sold, to J. Bumgardner individually some corn, which he sold to the Confederate Government, and afterwards let the Officers, as they had orders to impress if I refused, for which I was paid in part."
We submit that the above quoted statement in connection with the other statement made by claimant, and commented upon by counsel for the defense on Page 3 of his brief, allows that while claimant did not voluntarily sell supplies to the Confederacy, he was really forced so to do, by reason of the fact that the Officers had orders to impress claimant's property, if claimant refused to sell same. It will also be observed that claimant says in his above quoted statement that he was paid for a part of his property which he let the officers have. This statement is corroborated by the vouchers brought forward by the defendant. The testimony of claimant taken in connection with the testimony recently given in the case, shows beyond all reasonable doubt that claimant was obliged to sell supplies to the Confederacy, and that it is quite probable that the Confederates also impressed certain other property of claimant, for which no compensation was ever promised or given. In view of all the foregoing, it will be observed by the Court that there is absolutely nothing contradictory in the record but on the contrary the statements made by claimant are borne out by said vouchers exhibited by the defendant.
Relative to the testimony of John W. Mish as to aid given by his deceased father to those seeking to go North, it is to be observed that in 1900 witness states that he knows of several persons whom his father so helped, but in 1897 he simply stated that he did not know of his personal knowledge of the giving of such assistance. He did not state that he did not know persons who were assisted. As the word "know" is ordinarily used by the laymen, unlearned in legal distinction there is no contradiction whatever between these two different statements made by this witness.
Adverting now to Page 5 of defendant's brief, and the alleged further contradiction which counsel for the defense thinks he has discovered between the testimony of John W. Mish and J.B. Carwell on the one hand, and the testimony of Robert A. Helms on the other, we invite attention to the fact that counsel for the defendant has failed to call the special attention of the Court to that portion of the testimony of said Helms found on Page 4 of his deposition, being question and answer 16, in which this witness states that his own family was assisted by claimant in this case, the occasion for this assistance being obviously witnesses absence in the North. So much for this alleged contradiction. Instead of there being a discrepancy upon this point, the testimony of each witnesses corroborates that of the others.
Referring to the further discovery by counsel for the defendant of contradictions in the testimony of said witness Carwell, pointed out upon page 5 and 6 of his brief. We have stated that it does appear that in 1897 this witness testified that the Confederates threatened claimant just the same as they did the rest of the Union people, though no particular threats are mentioned, and that in 1900 witness candidly admits that he had no direct personal knowledge of the threats made to claimant, but very frankly states that he had heard claimant say that he had been threatened. If there is anything of moment in this, we must confess our inability to see it.
Referring now to the concluding remarks in defendant's brief, we would suggest that it is very easy at the present time to say that a mere threat of barn burning should have been disregarded by the claimant, but that such a threat made in a time of general disturbance and turbulent disorder, would be quite likely to have had an effect upon an ordinary farmer unable to protect himself against arson, which might result from the enmity of lawless neighbors. The question is not, what would now be considered such a threat as would have an effect upon a reasonably courageous man, but what would under the circumstances which surrounded claimant at the time in question could have been deemed sufficient to constitute duress.
We submit that there can be found in this record no material contradictions or discrepancies, and that the testimony leads irresistably to the conclusion that the deceased claimant was wholly loyal to the Union throughout the war, and did all that any man of prodance could have done under all the circumstances to show his loyalty, and under these proven facts he should be found loyal by the Court.
Respectfully submitted, Gilbert Moyers Counsel for Claimant,
Chas F Consaul, Ida M. Moyers Of Counsel
Bibliographic Information : Southern Claims Commission: Claim of Henry Mish, August 30, 1871, Claim No. 1387, Source copy consulted: National Archives, Washington, D.C., RG 123, Congressional Jurisdiction #8618.
