Argument of Asa Bird Gardner, counsel for government, after conclusion of the evidence in the case of Fitz-John Porter before the Board of Army officers at West Point, January, 1879
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ARGUMENT OP ASA BIRD GARDNER, Counsel for Government, , AFTER CONCLUSION OF THE EVIDENCE IN THE CASE OF FITZ-JQHN PORTER, BEFORE THE BOARD OF ARMY OFFICERS AT WEST POINT, J^NUA-RY, 1879, WASHINGTON: aoVERNMENt PRINTING OFFICE, 1879. ARGUMENT OF ASA BIRD GARDNER, COUNSEL FOR TI!K I'MTKl) STATES. :\rr. President and Gentlemen of the Board : After a series of meetiu^s, not equaling', however, the number liekl by the high mili- tary court w hich tried this i^etitioner sixteen years ago, the Board will soon exhibit to the reviewing authority, to the future historian, and to the judgment of the country a mass of statements respecting the cam- paign in Virginia in August, 1862, such as no other campaign, not even that terminating in Waterloo, has ever presented. EEKATA. On page 12, in the fortieth line should read ''Board" instead of '' Court." On page 'f in the twenty-fifth line, the words * Resist from" should be ^'persist in." On page 57, in the fifteenth line, the words '' [the] road to Groveton" should read, " right toirard Grovt'Aon." ■ ' On page 88^ in the forty-fifth line, the word " battalions" should be ''batteries." ^ On page 122, m the forty-first line, the words ''about 4 p. m." should be "about On page 129, in the eighteenth line, the word ''forced" should be "fired " On page 129 in the twenty-fourth line, the words "Hampton's brigade" should read: " ^m» /on '« brigade." ^ On jiage 135 the answer to question in thirtieth line is : " Yes ; we were on his riffht " H;mr)to'rCofe's " *" *"^'^*''" *" qnestion in fifty-fifth line is: " I am certain it was at deprived of, as he terms it — The inestimable advantage of having his case advocated by those who are practiced in the science and skill of advocacy, and who know how to bring out everything that can i)088ibly make for the benefit of the client, whereby, in the end, truth, is elicited by all that can be said on either side, being heard, and the tribunal which has to judge is placed in the most advantageous position for deciding according to right. In the American Army, the accused is, under the Constitution, al- ways entitled to counsel as of riglit. This is exemplified in the case of this petitioner, who, on his trial. Was defended by able counsel in the ])ersons of the late Hon. Reverdy Johnson and Charles Eames, esq. The history of the Anny shows no instance of a body of commis- sioned officers assembled l)y executive order for the i^urposes which brought this Board together. Necessarily the Board had to hear counsel for petitioner before deter- mining its method of procedure. That statement, instead of formulat- ing i)oints as to what he desired to do, took the character of an elabo- ARGUMEINT OF ASA BIRD GARDNER, COUNSEL FOR THE UNITED STATES. :Mr. President and Gentlemen of the Board : After a series of meetiugs, not equaling, however, the number held by the high mili- tary court which tried this petitioner sixteen years ago, the Board will soon exliibit to the reviewing authority, to the future historian, and to the Judgiiient of the country a mass of statements respecting the cam- paign in Virginia in August, 1802, such as no other campaign, not even that terminating in Waterloo, has ever presented. AMiile the Revised Statutes of the United States provide for the institution of courts-martial or courts of inquiry to administer justice to those Avho are in the military service of the nation, and minutely provide for the oaths which have to be taken by the members and judge-advocate or recorder i)reliminary to any investigation or inquiry. Congress has never provided for any appeal or writ of error from the judgment of a court-martial after it has been finally acted ui)on by the convening authority. His decision is final and conclusive when the court which tries the case has jurisdiction over the offense and individual. In the criminal practice of the cu^cuit and district courts of the United States we find that, in many instances, judgment is final. The i^resent Lord Chief Justice Cockburne of England, in 18G7, in the case of Colonel kelson and Lieutenant Brand, said, when referring to general courts-martial : No one, I tliink, can deny tliat tlie substance of justice is carefully attended to. There is nothing arbitrary, nothing capricious, nothing unsettled. * * * Perhaps there are no tribunals in the world in which justice is administered with a higher sense of the obligation which the exercise of judicial functions imposes, with a higher sense of honor, or a greater desire to do justice. These, I think, so far as experience has shown, are, generally speaking, the charac- teristics of the military tribunals which exercise their functions under the name of courts-martial. The eminent jurist who used this language did it after allusion to the fact that the accused, in general courts-martial in the British army, is deprived of, as he terms it — The inestimable advantage of having his case advocated by those who are practiced in the science and skill of advocacy, and who know how to bring out everything that can possibly make for the benefit of the client, whereby, in the end, truth, is elicited by all tliat can be said on either side, being heard, and the tribunal which has to judge is placed in the most advantageous position for deciding according to right. In the American Army, the accused is, under the Constitution, al- ways entitled to counsel as of right. This is exemi)lified in the case of this petitioner, who, on his trial. Was defended by able counsel in the l)ersons of the late Hon. Reverdy Johnson and Charles Eames, esq. The history of the Army shows no instance of a body of commis- sioned officers assembled by executive order for the purposes which '►rought this Board together. Necessarily the Board had to hear counsel for petitioner before deter- lining its method of procedure. That statement, instead of formulat- ig points as to what he desired to do, took the character of an elabo- rate argument in detail, with presentation at the same time to each of us of the argument in ininted form. From this it api^eared that he pro- posed to introduce : 1st. So called newly discovered evidence ; 2d. Cumulative evidence; and 3d. Evidence as to his conduct on the 30th of August, 18.62, in order to show animus, which had been ruled out after argument on tha orig- inal trial. In other words, he substantially proposed a new trial. He also asked "justice-'; alleged he had been wronged, and by another of his counsel declared that he desired the very fullest and most search- ing examination to be made of the facts of the case, so that the actual truth should be known, and would certainly expect that if it came to the knowledge of the Board in any way that witnesses can be had who are known to have knowledge upon the subject, even if it is inconsistent with the claims that he puts forth, they shall have ox)portunity to aj)- pear, and that all the knoAvledge that they should have on the subject should be di'a^ai from them, and that the petitioner did not desire his witnesses to give any more ex parte statements, but that they should be subjected to the test of cross-examination so that the actual truth should be developed. (Board's Record, pp. 3 and 4.) The j)etitioner's counsel also proposed to present the record of the court-martial and read evidence there taken to the Board preliminarily to introduction of what we may term, colloquially, oral evidence. It also appeared that the names of a number of supposed witnesses, who had written letters, had been sent by the War Department and Army Headquarters either to the President of the Board or myself, who at that time in this case was merely the Recorder of the Board, with such duties as usually pertain to such office and mere regulation boards, where no law prescribes duties such as are prescribed for him on a court of inquiry. These names of witnesses I comnmnicated to counsel. With this state of facts the Board was called upon to decide what po- sition it should occupy in the proposed action of counsel for i)etitioner. Had this Board confined the petitioner's counsel to the presentation of affidavits in the nature of newly discovered evidence, so as to deter- mine : 1st. Whether it was in fact neicly discovered evidence, and, 2d. Whether, if it had been placed -before the general court-martial which tried petitioner, it would have afforded ground for an acquittal, this was all he could, under the circumstances, have reasonably expected. This Board, however, saw very plainly, that if evidence, so called, was to be presented and received by it as to the merits, and petitioner's counsel did not desire their witnesses -to give any mere ex parte state- ments, some one must cross-examine and present rebutting evidence, if any there was. This obligation, therefore, having been specifically devolved upon me by this Board on the 2Ctli day of June, 1878, under the designation of "counsel for the government," Avith the full responsibility thus directly placed on me to cross-examine and to produce rebutting evidence, I have, with no knowledge of the case before that time, endeavored to elicit the truth, and the whole truth, irrespective of persons, so fiir as want of any judicial authority has permitted. The representative of the government should never forget that justice is all that his government desires, but this does not demand of hiru a 8 tacit or expressed acquiescence in whatever may be proposed by an accused. The petitioner has come here with the assistance of three skilful, able, and learned counsel, afUn* sixteen years' careful preparation, admitting also the legal assistance heretofore (by name) of some of the ablest counsel in the land, and that one of his present advisers here had been, when this Board first met, already a year engaged in his cause. While, therefore, as representative of the government, I have never intentionally kept from petitioner's knowledge any properly admissible evidence which I deemed material to liim (an obligation, by the way, which his counsel would not necessarily be under to the government), and while the record shows that I have even called new witnesses for government at his instance without knowing what they could testify to, thus giving him the privilege of cross-examination (Board's Record, p. 328), nevertheless, I have considered and do consider, despite some nnthinking criticism, that the government has some rights, and that it is my duty to look out for them by the fullest endeavor to ascertain the truth, the Board itself being responsible for its method of procedure. That obligation which, as I have said, this Board placed upon me I have not sought to avoid, for the reputation of the Army as well as the reputations of this Board as individual officers are concerned, that there shall be no one-sided, partial investigation of this case, if investigation like a retrial is admissible, and that the solemn record of a statutory court of nine duly sworn general officers shall not be reviewed without a previous exhibition of the most complete and conclusive evidence, so convincing that all may understand and acquiesce. All examinations of a judicial or quasi-judicial nature have to take, for the ascertainment of truth, a well-delined course. In all courts of criminal jurisdiction of the United States and in all its military tribunals, which are criminal courts of special and limited jurisdiction, the rules of common law in criminal cases, which are the result of matured experience of generations, i)revail under the express ruling of the Supreme Court of the United States, except where such rules have been specifically modified by statute. The proceeding before this Board is in the nature of a criminal case where these rules ought to apply ; because, if we take the original re- <'ord of evidence of petitioner's court-martial, with intept to compare it with other so-called evidence here introduced, certainly that which it is to be compared with must be such only as would be legally admissi- ble on a court-martial in case it had been ottered on the trial ; for any- thing presented and received of a different character would have a tendency to impair the conclusion arrived at : 1st. Because it would be impossible to determine what weight had been given to it as against ler/al evidence iu the original record; and, 2d. Because it wouhl violate the only legal mode for the ascertain- ment of truth and satisfaction of public justice in military procedure. These remarks I make preliminarily to. future discussion of some por- tions of petitioner's evidence, so called. When 1 heard and read the elaborate opening statement of i)etitioner's counsel, I was glad to perceive that it coincided with the opinions and sympathies I had hitherto entertained. With no knowledge of the facts, it seemed to me that the petitioner's case was strong — that injustice had possibly been done him, and I did not hesitate, in a private way, to express^my sentiments, sentiments entertained by many others, on pre- cisely the same grounds. 2 G Petitioner's unreliable state^ients: After I began to study the case under the responsibility put upon me by the Board, several things in that argument or statement attracted my attention, and led me, on further search for the truth, to the reluc- tant conclusion I felt constrained to express in my opening argument. Those were — First. A suppression or avoidance of the fact (petitioner's opening- statement, pp. 6 and 7) that the extraordinary exertions the petitioner made to embark at ^N^ewport Xews for Aquia Creek by midnight of the 20th of August, 1862, did not arise, as he would have had us believe, from eagerness to join General Pope and come under his command, but were because he had an express order to that effect direct from Major-General Halleck, the general-in-chief at Washington, and also a pressing tele- gram from Major-General McClellan, his then immediate commander, to push oft', as it was a matter of life or death (G. C. M. Record, p. 233). Second. An allegation in his argument that the regiments forming Piatt's brigade of Sturgis' division never reported to petitioner on the 29th of August, 1862, an allegation which the evidence of General Grif- fin (pp. 164 and 165) and also the testimony of General Sturgis or Gen- eral Piatt show to have been directly contrary to the fact. This is also apparent from the opening statement (p. 89), in which he shows that this brigade was with him at Warrenton Junction. Third. Another allegation in that deliberate and well-considered argu- ment or statement (page 29), viz, that the petitioner knew Longstreet's separate force was strongly posted in his front and that it did not amount to less than 25,000 men, when in his equally well considered defense before the general court-martial which convicted him (G. 0. M. Record, p. 266), he deliberately averred that this separate force, which he then also insisted was in front of him, amounted as he then (January 10, 1863) calculated it, at ^'from ten to fifteen thousand strong." Thus on his trial he advanced precisely the same line of defense as now, and in order then to make a reasonable excuse, alleged that the enemy before him on the 29th of August, 1862, was, according to liis then assumed belief, "from ten to fifteen thousand strong" ; but subsequently, in order to get a rehearing or review of his case, and to lead to the conclusion that he was the victim of circumstances, the presence of even 15,000 men before him would not have been sufficient to excuse his conduct, and he adds, for convenience, at least 10,000 more to the enemy, and presents to us the possibility generally oft'ered by the Confederates (as see Longstreet's letter in i^etitioner's opening argument, p. 51, and his evidence. Board's Record, p. 64, also Beverly Robertson's testimony. Board's Record, p. 178), that if the Union forces had attacked, annihilation or destruction would have been the inevitable result. We know from our OAvn military experience what forces three years later were x)laced in that categor^^ PouRTH. The fourth allegation which attracted my notice was one deliberately made by counsel for petitioner after concluding petitioner's opening statement (Board's Record, p. 9), to the effect that during the battle of the 29th of August, 1862, the petitioner did not have any belief whatever that the troops of General Pope were sustaining defeat and retiring from the field, and further that there was no ground for such a belief on petitioner's part or on the part of anybody else. This, it will be perceived, is directly contrary to a* different part of the opening statement of petitioner, where, for another purpose, he introduced a dis- j)iitch he sent that very day to Generals McDowell and King, in which he said that — • * * as they [the enoiuy ] apjuMr to have driven our forces Lack, the fire of the enemy having advanced and ours retired, I have determined to witlidraw to MauassaH. (retiti(mer'8 statement, p. 35, dispatch No. 29.) If the i)etitioner never had any belief whatever that General Pope's forces on his right were being driven back and retiring from the field, and if there was no ground for such belief, on his part or on the part of anybody else, or that they were even engaged, why did he actually send such a dispatch, a disi^atch, it may be ailded, which he was proven on the original trial to have sent, and which he was willing to acknowledge for another line of defense before this Board ? If he sent that dispatch knowing it w^as false, but as an excuse for what he proposed in it to do, he intentionally sent thereby a notice the effect of w^hich would have been to absolutely paralyze any offensive movement which the commanding general might have proposed to make at an auspicious moment, and thus ruin any plan of battle about to be executed, and possibly compel the commanding general, in the midst of success, to stop and order a retrograde movement to prevent being out- flanked on his left by the advance of the forces from whose flank peti- tioner witlidrew. If the petitioner did not believe what he said in that dispatch, he committed a great, a stupendous crime, for on those and l)revious exertions of General Pope depended the safety of the national capital. The petitioner has stated in the part of his argument where he quotes this dispatch, that, " on going to the head of his column," he found he was misinformed, but he does not anywhere show (nor has he shown at any time in this case) that he notified either Generals Pope, McDowell, or King that he did not intend to carry out the determination expressed in that message. We now know, and w ill see in the course of this argument, how he issued other orders and sent other messages of the same tenor, which, if they had come to the notice of the general court which tried him, would possibly have saved us all the trouble of reviewing this case. Fifth. The fifth point in petitioner's maturely considered opening statement w^hich attracted my attention was in language as follows (page 57) : And J now repeat (and it is shown in the record) that at no time before dark had I or my officers knowiedj^e of any other than an artillery contest going on, or of any battle pending, or that General Poi)e needed any aid. On his trial he had called Col. E. G. Marshall, Thirteenth Xew York Volunteers (now colonel United States Army, retired, then a captain in the liegular Army), who commanded his advance skirmishers, and who said : I coiild see General Pope's left and the enemy's right during the greater part of the day, about two miles oflF, perhaps more, diagonally to our front ami to the right. The enemy set up their cheering and appeared tobe cliarging and driving us, so that not a man of my command but uas certain that General Pope's army was being driven from the field. In the dirtcrent battles I liavo been, I have learned that there is no mistaking the enemy's yell when they are successful. It is ditferent from that of our own men. Our men give three successive cheers, and in concert, but theirs is a cheering without any reference to regularity of form, a contiu^ial yelling. Which evidence he also quoted in his defense. (G. C. M. Record, pp. 100, 260.) The petitioner has since, as we have seen, recalled Colonel Marshall liefore this Board for additional evidence on other points. That original evidence of this witness, just quoted, itself absolutely contradicts the petitioner's declaration m his opening statement or ar- gument here. The Board will perceive that this is a little different fi-om the state of affairs as described by the counsel who has last preceded me. The petitioner's troops at the head of his column saw and heard this firing and fighting on the left of General Pope's army, but he, away back to tlie rear, at junction of the Sudley Springs and Manassas and Gainesville roads, was in a position to hear Kearney's firing upon the right, near Sudley church. Additional thereto, in the opening statement itself, we find some of petitioner's own orders or dispatches, which he sent on the ii9th of August, from which I quote, viz (dispatch No. 27, p. 94): To Gen'l Morell : Push over to the aid of Sif^el and strike in his rear. * * * gee if you caimot give help to Sigeh If you find him retiring, move back toward Manassas. If Major-General Sigel's corps of General Pope's army had not then been in action, and the petitioner did not know that it was, or that it needed help, why did he issue this order ? Again (dispatch IS^o. 37, p. 96) : General Morell : ^ * * The hattle works well on our right, and the enemy are said to he retiring np the pike. Again (dispatch Ko. 31, p. 95) : General Morell : * * * All goes well with the other troops. Again (dispatch ^o. 38, p. 96) : General Morell : * * * McDowell says all goes well and we are getting the best of the fight. ' From these (from page 94 to 96 of his statement), over his own signa- ture, despite his deliberate statement to the contrary, on page 57, it is apparent that both he and his officers knew there was a battle pending, and that he himself knew, by his order to his senior di\ision commander to push over and help Sigel, that aid was needed. He also knew a battle was impending, from a dispatch General Pope had sent to him that very morning, which was received by petitioner at Bristoe, at 5.30 a. m., August 29, in which General Pope ordered him up and said (see dispatch in petitioner's opening statement, p. 93, and G. C. M. Eecord, p. 235) : It is very important that you should be here at a very early hour in the morning. A severe engagement is likely to take place, and your presence is necessary. It is apparent, therefore, from the admitted, heretofore proven facts set forth for other purposes by the i)dlitioner in his own oj^ening state- ment, that during all of that same 29th of August, 1862, both he and others of his command had knowledge of a pending battle, and that General Pope needed aid, despite the emphatic statement the petitioner has made to the contrary. Sixth. My attention was further drawn to still another paragraph in petitioner's opening statement (page 38), in which, referring to Friday, 29th August, 1862, he said as follows : My troops were without food at this time, and so continued throughout the next day, except a small supply of hard-tack which they received that night. On page 91, however, of that statement he printed a dispatch he sent to Maj. Gen. A. E. Buriiside, at Aqiiia Creek, dated Bristoe, 28th August, 1862, 9.30 a. m., in which he said : I feel as if on my way now, and thuH far have kept my command and trains well n]> More sujiplies than I supposed on hand have been V>ron<5ht, but none to spare. * * » And on page 02, in another dispatch to Major-Geueral Burnside, (hited Bristoe, 6 a. m., 29th August (the very day of the battle), he said : I shall be out of provisions to-morrow night. Yonr train of forty wagons [provisions] cannot be found. Thus, according to his own official reports, made at the time, he had — even without Burnside's forty wagons — enough subsistence for his com- mand, not oidy for the 29th, but for the 30th, and yet he has stated here, apparently forgetful of these dispatches, that he had no provisions for his command that very 29th of August, when he reported he had. Se\t:xtit. Another point in his deliberate opening argument which impressed me was the statement (oni)age 17) that he — Became informed ('iTth August) that the general policy of the campaign was to avoid a general action with the main forces of the enemy till large re-enforcements from the Army of the Potomac should join ns. Xevertheless, he knew that Maj or- General Banks' cordis of General Pope's Army had attacked the enemy at Cedar Mountain on the 9th of August ; and in his (petitioner's) oi)ening statement (page 82), in a dis- patch he sent on the 21th of August, 2 ]). m., to Generals Morell and Sykes, he himself said: Pope affaclrd the enemy yesterday near Sulphur Springs, and the latter retreated. He w;is to renew the attack to-day, and it is probable Pope ''Xiii', punhing after him, know- ing the river at Raj>paliannock was not fordable. General Halleck's orders are for us to hold the Rappahannock. Again, in another dispatch of petitioner— this time to Major-General Burnside (petitioner's opening statement }). SI) — dated ^'Advance, 25th August, 18G2," petitioner said: '' Banks and Sigel are at Sulphur Springs fighting to-day." Again, in another dispatch, which petitioner has printed (opening statement, p. 87), from General Pope to himself, dated ''Headquarters Army of Virginia, AVarrenton Junction, 26th August, 18G2, 7 a. m.," the latter, after ordering him to move forward as speedily as i)0ssible * * * so as to "easily move to the front," said: I do not see how a general engagement can be iiostponed more than a day or two. Again, in another dispatch to petitioner from General Pope, printed in the former's same statement (page 88), dated Headquarters Army of Virginia, Warrenton Junction, 27th of August, 18G2, 4 a. m.. General Pope said he wanted petitioner to march direct to that i>lace as rapidly as possible, and, referring to the enemy, said : We will probably move to attack him to-morrow in the neighborhood of GainesAille which uiay bring our line farther back towards Washington ; of this I will endeavor to notify you in time. You should get here as early in the day as possible, in order to render assistance should it be needed. Again, in another dispatch of petitioner to General Burnside, which he prints in his opening statement (page 17), just after saying that the general policy of the campaign w^as to avoid a general actiou with the main forces of the enemy, he said : " I send you the last order from Gen- eral Pope, which indicsites the future as wellas the present ;" ^nd in that order (page 18) movements of troops were ordered for "operation against the enemy," and for petitioner's corps to push forward to " assist the operations on the right wing." 8 Again, in another dispatcli of General Pope to petitioner, which the latter also printed (page 91 of his opening statement), dated Headquar- ters Army of Virginia, Bristoe Station, 27th of August, 1862, 6.30 jy. m., referring to General Hooker's fight at Bristoe, he said : The enemy has been driven back, but is retiring along the railroad. We must drive him from Manassas and clear the countrj'' between that place and Gainesville, where McDowell is. - Again, at 9.30 a. m., petitioner sent a dispatch to General Burnside," dated Bristoe, 28th August, in which he said : My conmiand will soon be up and will at once go into position. Hooker drove Ewell some three miles, and Pope says * * * He hopes to get Ewell and push to Manas- sas to-day. The statement, deliberately made by petitioner, that he became in- formed from General Pope at Warrenton Junction, on the 27th of August, that the general policy of the campaign was to avoid a general action with the main force of the enemy till large re-enforcements should join from the Army of the Potomac, is a statement made by way of prelimi- nary justification or excuse for petitioner's subsequent conduct in not taking part in the battle of the 29th and his other offense of which he was convicted ; but in the light shed by the dispatches and orders he himself has presented for other purposes, it is i>lain that General Pope was constantly on the offensive instead of the defensive, attacking the enemy on every possible occasion; that the petitioner knew it, and that his (petitioner's) deliberate opening statement as to the general policy being to avoid a general action is contradicted too pointedly in the dis- patches just cited to require further illustration. If, however, General Pope had been attempting to avoid any engage- ment until the Sixth and Second Corps of the Army of the Potomac ioined him, then a tret)le, an awful responsibility, rests on whoever kept the gallant fighting Sixth Corps from joining General Pope at Centre- ville, which it did not do until late in the afternoon of the 30th of August, after our forces had been compelled to retire there after two days' battles (whose cannonade could be heard even in Washington), although the road by which it came from Alexandria was good and unobstructed — an easy day's march — and orders for its advance went to the commanding general of the Army of the Potomac on the 26th of August, and one brigade, Taylor's, of the Sixth Corps (Franklin's) was shoved up unsup- ported to Manassas Junction to meet the Confederate Major-General Jackson as he came in there. Brigadier-General Taylor himself lost his life while gallantly attacking, despite the enemy's superiority of force. That the petitioner has no grounds Avhatever for the statement in his opening argument, that the general policy of the cami)aign was to avoid an action, is further evidenced by still later dispatches of General Pope, cited by him, as, for exami)le, one of General Pope to petitioner, dated near Bull Eun, August 29, 1862, 3 a. m. (petitioner's opening statement, p. 93), in which he was told that — • Kearney and Hooker march to attack the enemy's rear at early dawn * * * . A severe engagement is likely to take place and your presence is necessary. We know from the charges of which petitioner was convicted that General Pope attacked the enemy at daylight of Friday, the 29th of August, 1862 J and petitioner's own opening statement (on pages 26 et se- quitur) shows that the offensive on that day was taken by the national Army. Even on the 30th of August our forces again resumed the offensive, and petitioner himself says (opening statement, p. %iy) that : '•'• Early in the (lay [30tli August] General Pope suggested plans of attack," thus showing all through General Pope*s career with the Army of Virginia that that gallant otficer was ever seeking to carry out the general policy of the campaign, " to tight like the devil," as previously ordered by Major-General Halleck, which was in strong and marked contrast to the conduct of the petitioner, who kept his command from becoming engaged until the immediate presence of that very commander, on the 30th, com- pelled him to make an attack. All this is in striking contrast to peti- tionei'^s unjustifiable remark that the general policy of General Pope's campaign was not to fight. As we proceed in the consideration of this case, I shall be under the disagreeable necessity of i^resenting other instances which may compel the application of the maxim fahus in v)w,fahus in 07nnibu.s. STATUS OF PETITIONER AND IMETHOD OF PROCEDURE ADOPTED. The petitioner in this case asked for "justice," not mercy. The par- doning power is an act of grace, clemency, or amnesty, and may be granted from the mere volition of the Executive, with or without cause; but whether or not it comes from compassion, iVom a settled policy, or as a mode of celebrating some joyful event, the petitioner, when he says he was unjustly convicted and wronged and wants to be " vindicated," does not appeal to that attribute of the Executive. As to a '* review" which he asks for, we have seen Congress recently by law give the President power, specially and solely, to revise Ex-Surgeou-General Wm. A. Hammond's case (which this Board also had in charge), from which flows the necessary legal implication that without such legislative sanc- tion such action would, be coram nonjiidice. To take the original f-ecord of the court-martial as offered by the petitioner and compare it with other evidence and to report, is to review. Precisely, therefore, what the petitioner may lawfully demand and receive it is apx)arent he does not ask for. It is to be regTetted that this Board has no judicial or quasi judicial power ; that is, power to compel attendance of witnesses, administe ran oath, or make any affidavit which may be presented "legal evidence," so that malicious false swearing to a material fact shall be perjury. It is a great homage paid to justice and law that very few who are ever convicted of criminal offenses will admit guilt, but will declare to the last their innocence and the injustice of their punishment, even when about to suff'er the extreme penalty of the law. That this petitioner has on several occasions, as he asserts, sought by appeals to the Executive to obtain some sort of review or revision, I at- tach no importance to. It was not granted in the case of Brig. Gen. William Hull, U. S. A., but it has in this case permitted the fabrication of specious, and, in the case of his counsel (the late lieverdy Johnson), libelous pami^hlets, which have gone to the files of tlie War Department, the public libraries and press of the country, and thereby manufactured unsubstantial sentiment. My appearance in this case, under the ruling of this Board, was the first instance where any duly authorized representative of the govern- ment could publicly, and I believe honestly, say, during all these sixteesn years of specious pleas, that the court of general officers which tried this petitioner, and convicted him of one of the gravest crimes, was composed of his personal friends, six of the nine being graduates of the United States Military Academy, and all men who he said on his trial knew 10 him well, and as to each of whom he twice said, of record, he had no ob- jection. I have no desire to enter on an extended view of this case, nor have my current official duties and some considerable governmental counsel business in the civil courts during the recess afforded me that complete leisure to prepare such an elaborate argument as the three counsel on the other side present. Furthermore, I do not deem it necessary. I have sought in this in- vestigation to confine it to exactly what the petitioner did or failed to do under the orders he had. The specifications and charges of which he was convicted are definite and precise, and the whole matter is really in a small compass, desi)ite the collateral issues which counsel have skillfully presented, as to what this or the other did, or failed to do, so as to withdraw attention from their client and fix it upon somebody else, in order that the petitioner's disobedience, or criminal negligence, or positive willful offense, shall be lost sight of in the vague i)ossibilities surrounding acts or omissions of others. He comes before this Board, not with the presumption of innocence which attaches to those who plead ''not guilty," but under a valid, sub- sisting, and executed sentence. Such fiict, however, should not, and I believe has not, impaired the slightest of his rights, and I believe he has been treated, certainly by me, with courtesy and consideration. He has, however, everything to gain by this or any other rehearing, and nothing to lose. When his counsel sought here (Board's Eecord, pj). 22, 23) to intro- duce : 1st. The very evidence as to his conduct on the 30th of August, in order to show animus j which had been, after Careful argument by Eev- erdy Johnson, his counsel, ruled out on tlie original trial {G-. C. M. Record, pp. 118, 133, 252, 280), it being the conduct of a day subsequent to peti- tioner's alleged offense; 2d. When he undertook to introduce cumulative evidence (p. 259) ; 3d. When he presented such evidence as General Pope's historical order to the Army of Virginia before petitioner joined him — an order knowTi to petitioner on his trial — not produced there, but introduced here bv way of justification or excuse as to animus (Board's Eecord, p. 278); 4th. When he undertook to recall some of his own witnesses who were witnesses on his trial in December, 1802, in order to add to and explain portions of their direct examination (Board's Eecord, pp. 282, 307, 410, 444, 4G1, 1127); and, 5th. When counsel declared, after referring to the ''former trial," . that the proceedings before this Board are a "full trial" (p. 293), and cross-examined government witnesses here on evidence given on the trial sixteen years ago (Board's Eecord, pp. 348, 801, 820), the effect was to make this Board an "api)ellate" tribunal to pass in judgment on the original court and to give weight to such evidence in its findings, and to make recommendations looking toward the revocation of this sentence on the ground, partially if not wholly, that in the judgment of this Board this special evidence, had it not been ruled out by the general court-martial, would have brought that tribunal to a different verdict. In my opening argument of October 2 I went quite fully into certain branches of this case, both as to law and fact, stating, of course, as to the latter, only what I believed to be the real condition of affairs. The II representative of the governnieut, in a case like this, stands in a posi tion that he need only pursue that line of reasoning; which he believes to lie Just, with no obligation to a personal client to do the best that he can for him. Thus have I approached this case. ^NlaJ. Gen. Fitz-John Porter, of the United States Volunteers, and colonel of the Fifteenth United States Infantry, and brevet brigadiei-- general of the United States Army, was tried and convicted on two charges: (IIARGES AND SPECIFICATIONS OF WHICH PETITIONER WAS DULY CONyiCTED. FIRST. Disobedience of orders, in violation of the [old] 0th Article of War, an oftense punishable with death or such other punishment, according* to the nature of the oliense, as a court-martial might iutiict. SECOND. Violation of the [old] 52d Article of War, in misbehaving' himself before the enemy ; also an oliense lumishable with death or such other punishment as shall be ordered bv the sentence of a general court-mar- tial. These Articles, of War are noAV known in the Eevised Statutes of the United States respectively as articles 21 and 42. The specifications of which he was convicted were briefly and sub- stantially as follows, namely: CHARCJE 1st. — VIOLATION OF THE 9TII ARTICLE OK WAR. First specification. That he received, at Warrentou Junction, Va., in the evening of 27th August, 1^62, an order from General Pope, dated at 6.30 p. in., from Bristoe Station, announcing a .severe tight there between Hooker's division (of Heintzelman's corps) and the enemy (Jackson's forces, Ewell's division)*, and directing him to start at one o'clock at nighty and come forward with his whole corps, or such pari of it as was with him, so as to he at Bris- toe Station at daylight the next morning, as it was ncccssart/ on all accounts that he should hethere by daylight. That if Morell's division (of accnsed's own cori)8) had not joined him (accused) yet at Warrenton, to send word to him to push forward immediately, and to send word to General Banks to hurry forward with his (Banks' corps) at all speed to take accnsed's place at Warrenton Junction. Further, that he. General Pope, sent an officer with this dispatch to conduct him to the place (Bristoe). Second specification. That the accused, being in front of the enemy at Manassas, Va., on the morning of the '29th August, 1862, received from General Pope a joint order, addressed to Generals McDowell and Porter, to move forward with their joint commands toward Gainesville, the accused having received written orders to the same effect an hour and a half before (see both or<lers hereafter set forth), and comnmnieation to be established between the two wings of the army ; which order he did then and there disobey. Th ird specifica tion. That the accused, being in front of the enemy during the battle of Manassas, on Fri- day, the 2yth of August, 18 J2, did receive the following lawful order: "Headquarters ix the Field, ** August 29/A — 4.30 p. m. ''Major-General Porter: Your line of march brings yon in on the enemy's right flank. I desire yoti to push forward into action at once on the enemy's flank, and if possiltle on his rear, keeping your right in communication Avith General Reynolds. 12 The enemy is masked in the woods in front of us, but can be shelled out as soon as you engage their flank. Keep heavy reserves and use your batteries, keeping well closed to your right all the time. In case you are obliged to fall back, do so to your right and rear, so as to keep you in close communication with the right wing. "JOHN POPE, " Major- General Commanding.^' Which he did disobey, and fail to push forward his forces into action either on the enemy's flank or rear, and did in all other respects fail to obey said order. CHARGE 2nd. — VIOLATION OF THE 52d ARTICLE OF WAR. First sxmcijicaiion. That during the battle of Manassas, on Friday, 29th August, 1862, while within sight of the field and in full hearing of its artillery, accused received from Major-General Pope the 4.30 order (see above, Spec. No. 3), which he did then and there shamefully diso- bey, without any attempt to engage the enemy or aid the troops who \vere ali-eady lighting greatly superior numbers and were relying on the flank attack to secure a decisive victory and to capture the enemy's army ; a result which must have followed from said flank attack had it been made in compliance Avith the order which accused so shamefully disobeyed. Second siiecification. 