During the Civil War in Missouri and Eastern Kansas, any individual who was captured by the Union forces could be, depending on the circumstances, charged with "inciting the insurrection," and if convicted of the same, executed by firing squad or hanging.
Many Confederate guerrillas or bushwhackers did not get the benefit of a trial and were in fact killed immediately after they were captured or had surrendered. Very often, if they were Jayhawkers or civilian desperadoes, they were imprisoned to be tried at a later date which was, very often, a very long later date. In some cases, this resulted in the over-crowding of the prison which was often referred to as the "guard house."
However, a "guard house" was normally a smaller building, where as a "prison" was normally a large one, two-or-three storied building. At the beginning of the Civil War, there was a "guard house" in Fort Scott that was eventually supplemented with a two-story prison that was constructed on Wilson's Addition in the southwestern part of the town.
This column contains the description of the aftermath of the execution of a Confederate spy in Missouri and the perplexing situation of the commanding officer of Fort Scott when he had too many "jayhawkers" and "desperadoes" in the "guard house." Both descriptions are located on pages 464-466 in Series I, Vol. 13 of the Official Record of the War of the Rebellion.
Headquarters, District of Missouri, St. Louis, July 7, 1862.
Special Order No. 41:
From the report of Col. J. M. Glover of an investigation made by him, in pursuance of the orders from these headquarters, of the circumstances under which one Col. Best, a rebel spy, was executed by Maj. Tompkins, 13th Cavalry, Mo., State Militia and affidavits accompanying said report, it is evident that the said Col. Best richly deserved his fate and would have received it at the hands of a military commission had he been tried. Yet his case does not appear to have been one of that class which requires summary punishment inflicted upon members of guerrilla bands when actually taken in arms engaged in their unlawful warfare. Best was undoubtedly a spy and was engaged in inciting insurrection, but the laws of war do not justify the punishment of these crimes without trial. Nor do they justify such treatment of guerrillas under any circumstances except where the formal process of law has failed to arrest the evil. When it becomes necessary to dispense with the form of trial and execute certain classes of outlaws on the spot, orders directing that course must be construed strictly and literally and officers charged with the execution of such orders must be held to the most rigid accountability for going beyond the terms of the order.
The commanding general is satisfied, however, that while Maj. Tompkins erred in this case he did so honestly, believing that he was discharging with strict fidelity an important and disagreeable duty. The commanding general, therefore, takes pleasure in honorably acquitting Maj. Tompkins of all intentional wrong and in restoring him to his command. Maj. Tompkins will be immediately released from arrest and return to duty with his regiment.
By order of Brig. Gen. Schofield,
C. W. Marsh Assistant Adjutant General."
Now then, it appears that Maj. Tompkins was relieved of his command after the execution of Col. Best and placed under arrest pending the results of the investigation. As indicated, he was exonerated of any wrongdoing and probably would not have been arrested at all if Col. Best had been an enemy guerrilla or civilian.
"Jayhawkers and Desperadoes"
Headquarters, Fort Scott, July 10, 1862. To: Capt. Thomas Moonlight
Assistant Adjutant General:
Captain: I find that my force at this post is entirely too small to do the effective duty expected of us by the commanding general. As provost guard there is much to do, as the state of the country has been and is quite unsettled and the well-deposed citizens, feeling that the commanding general is severe in that he is determined to put down jayhawking and kindred crimes, have taken hold of the matter and are active and vigilant and feel it their privilege to call on me as provost-marshal for details of men to assist them, which I immediately give. Besides our duty as provost guard, we have to furnish a strong force to guard prisoners and commissary stores at this post.
My effective force is 230 men. By my original order from Col. Barstow, I am required to keep a sufficient force at Mine Creek and Trading Post to ensure the quietness of that neighborhood. My force there now is 60 men. At the suggestion and approval of the commanding general, I have sent a force to Jasper County, Mo., to protect the Union men in that vicinity, which leaves me 120 men to protect the post and the immense quantity of stores here.
I have no disposition to exaggerate or create needless alarm, but I cannot help feeling that it would be very proper for our force to be increased. I assure you, sir, that I shall be active and vigilant and do all that can be done to protect the interests of the government and hardly fear any attack, without Quantrill's and Hay's bands should drop in on us on their way down to the southern country. Our guard house is well filled with "jayhawkers and desperadoes" of different kinds and some of the worst ones, with their friends outside, threaten just enough to make me a little anxious to string some of them up!
I was notified that 105 rebel prisoners taken at the fight of Grand Saline will reach here tomorrow (July 11) and with my small force it will be impossible for me to guard them safely and under the circumstances shall order them to be taken to Fort Leavenworth, together with some prisoners already in confinement here.
I am captain, very respectfully, your obedient servant, B. S. Henning
Major, Third Wisconsin Cavalry, Comdg. Post and Provost Marshal.
Now then, there is no record that Maj. Henning executed any of the prisoners by hanging ("to string some of them up"), nor is there any record that he received any of the reinforcements that he requested, but he did carry on, and of course, the war went on!