Numbers 3. Report of Brigadier General Jacob D. Cox, U. S. Army, commanding District of West Virginia, of surrender at Spencer Court-House.

HEADQUARTERS DISTRICT OF WEST VIRGINIA,
Charleston, December 5, 1862.

SIR: I have the honor to transmit herewith proceedings of a court of inquiry* called by Brigadier-General Kelley, commanding division, to inquire into the surrender of the United States forces at Spencer, in Roane County, Virginia, on 2nd of September last, to cavalry force under Brigadier General A. G. Jenkins, of the rebel army.

The court has simply reported the testimony, apparently thinking nothing more was required of them. In my judgment they should have reported the facts they found to be true upon the testimony given, without, however, passing upon the question of the guilt or innocence of individuals.

Doing this part of the work of the court and making a summary of the evidence results substantially as follows:

On 2nd September last Colonel J. C. Rathbone, of the Eleventh Virginia Volunteers, was in command at Spencer, having a force of nearly 300 men, chiefly of his own regiment, of which, perhaps, 100 are said to have been unarmed or not armed properly. At about 7 or 8 o'clock in the morning of that day information was received from apparently reliable sources that Jenkins, with a considerable cavalry force, had entered Western Virginia and was advancing upon that post. No precautions were taken; the pickets were not strengthened nor advanced, nor was any step taken by throwing forward a detachment or otherwise to learn the truth or falsity of the report. At 4 or 5 o'clock p. m. a flag of truce was brought within the post to the headquarters of Colonel Rathbone at the court-house, the party consisting of a Major Sweeney, of the rebel army, and two other officers. From the testimony it would seem to have been regarded as a matter of course that the flag party should thus pass within the pickets and be admitted at once to the center of the encampment. The enemy's force was then just beyond the picket, which was half a mile out of the village. The men, who had been on drill at the arrival of the flag, were dismissed to their quarters and the officers of all grades called to the colonel's quarters for a council of war. The men, being left without commissioned officers, ran "in every direction," as is testified. After consultation, in which it appears that all or nearly all the officers advised the colonel to fight, he determined to send one of his officers, Major Trimble, who, as he himself testifies, was "born and raised" with the rebel Major Sweeney, back with the flag of truce to inspect the enemy's force, which it seems was accommodatingly permitted. During the absence of these officers the surgeon in charge of the hospital asked the colonel if he should display his hospital flag, and was told there would probably be no occasion for it. Up to this time the colonel had not put on his side-arms, ordered his horse to be saddled, or made, so far as appears, any movement, personal or official, which would indicate that he expected to fight the enemy or attempt an orderly retreat. About two-thirds of the men, apprehending that they were to be surrendered, left the place by the rear, scattered, and got safely off.

Just before the return of Major Trimble the men who remained were

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*Record of court not found.

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