Asa Bird Gardiner.

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 online

. (page 1 of 37)
Online LibraryAsa Bird GardinerArgument 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 → online text (page 1 of 37)
Font size
QR-code for this ebook

-/ /v^*


Book • 7 7^





Counsel for Government,




J^^N^U^HY, 1879












^ •

Mr. Pkesident and (Ientle^ien of the Board: After a series
ol" iiieetiiijis, not eqnaliii.u, liowever, the iiiniil>er held by the hi<ih mih-
tary couit wliieli tried this petitioner sixteen years a<iO, the Board will
soon exhibit to the reviewiiij^- authority, to the future historian, and to
the Jud<iiiient of the country a mass of statements respecting- the cam-
paign in A^irginia in Angnst, 1802, such as no other campaign, not even
that terminating in Waterloo, has ever ])reseiited.
—-———»— ~-..<. . -TT^.-i..,! ctj-^j^u^r. ,^f +v,„ iT^itiirJ «f..f«^^ i»io\i(1(i for the


On ]>n'r^i' \'2. in flic fortictli lini- slionld icjul '• Hoard" instoad of "Court."

On ici;;.-:!'.!, jn llif t wcnt.v-liftli linr. tin- words "desist from" slionld be ''permt in."

On |t.i;Lcr .')7. in fin- liCticntli line, tin- wtirds " Ltin-] road to (;ro\ iton" should read,

^' rii/lil liiiriinl (Jrovetoii."
On i>.ij;i' -i". in lli«- furly-linii lini-. llie word ■• liattalions " slionld he '' hat (cries.'''
On |ia;ie I'J-J, ill ihr loriy-hrst line, tin- wnids ••alionf 4 p. in." slionld he •• ahoiit

'J p. ni."

On pa;,^- l','it. in llu- ei';liteent li line. IJie word ■' foreed" should he '' /irrd."

On p.i;ie l-J'.t, in the t wenly-lourth lim-, the words "Hampton's hri<;ade" should

read : " //uiiIihi''k hri;;;ide."
On pa;ie i:!.'. I he answer i(M|iiestioii in thirt iet li line is: "Ves: we were on his ri"-ht."
On jia^^e 1 t:{ the answer to (|neslion in liflv -tilth line is: "I am certain it was at

llaniptoii ( 'die's."

deprived of, as he terms it —

The iiiestimahh advautajie ol'havin<i his ease advocated hy those who are iiraetieed
in tlie science and skill ol advticacy. and who know how to hrinj; out everythinj;- that
< an jiossihly make for the lienetit oi' the client, whereby, in the end, truth, is elicited by
all that can be said on either side, beinjr heard, and the tribunal which has to judge
is jil.-K cd in the most a<l\ anta^eous position for deciding according to right.

In the American Army, the accused i.s, under tlie Constitution, al-
ways entitled to coun.sel as of right. This is exemplitied in the case of
this jietitioner, who, on his trial, was defended by able coiuisel in the
|M'isons of tlie late lion. Keverdy Johnson and Charles Kames, esq.

Tlie Iiistory of tlie Army shows no instance of a body of commis-
siontMl olliccis assembled ity executive order for the which
broiiglit this iJoard together.

Nc'cessarily the IJoard had to hear counsel for ])etitioner betbre deter-
mining its method of jjiocedure. That statement, instead of formulat-
ing points as to what he desired to do, took the character of an ehibo-



,^ f ^ A


>t. ■





of iiiH'tiii^s, not e(jnaliiif;-, liowever, the ininilRn- held l)y tlie liiiih mili-
tary eouit which tried this ])etitioiier sixteen years a«>o, the Board Avill
soon exliihit to the reviewing- authority, to the future historian, and to
the Jndjirnent of the country a mass of statements respecting tlie cam-
]»aign in Virginia in August, ISGli, such as no other campaign, not even
that terminating- in Waterloo, has ever presented.

AVhile the Bevised Statutes of the United States provide for the
institution of courts-martial (ir courts of inquiry to administer justice
to those who are in the military service of the nation, an«l minutely
provide for the oaths which have to he taken hy the m<'ml)crs and
iudge-advocate or iccitrder ])reliminarv t<» any investigation or incpiiry,
(.'ongiess has ]iev«'r ]ii-o\ided for any ajijical or writ of error from the
judgment of a c(Miitiuart iai after it has been linally acted u]>on by the
coiixcning authority. 1 1 is decision is tinal and conclusi\e when the court
whicli tiies the case has jurisdiction (tver the olfense an<l individual.

In the ciiminal ])racti('e of the circuit and district courts of the Tnited
Sliitcs we lind that, in many instances, judgnuMit is tinal.

I'hc present J.ord ( 'hief .Iustic<' Cockburne of England, in ISdT, in
tlie case of Colonel ^'elson and Lieutenant Brand, said, when refciring
to general courts-martial :

\(i line, I iliirik. i;in diiiv thai llu- siilistaiiif of justice is caiTfiillx atti'iidcd to.
Tlitic is notliiii;; ailiitraiy, iiotliiii^^ caitiirioiis, iKitliin;^ iiiiscttltd. * * » lViliai)s
IliiTc arc no trilmiials in tlic wovlil in wliirh .jnstitc is ailniinistficd with a liiglier
sense oC tin' ol>li<;ation w Jiiili the exercise of Jndicial Innctions imposes, witli a liifjher
sense ol' honoi', or a j^reater (h'sir<' to (hi just ice.

These, 1 think, so far as experience has shown, are, generally siieaking, the charac-
teristics of the mUHurii trihnnals wliicli exercise tlu'ir functions under tlie name of

The eminent Jiiiisl who used this hinguagc did it after alhision to the
fact that the accused, in general courts-mait ial in the Ihitish army, is
dei>ri\ »'d of, as he terms it —

Tlie inestimahlc advantage (dliaving his case advocated hy those wlio are ))racticed
in the scienc<' and skill of advocacy, and who know how to hring mit everything that
can ]iossil)ly make lor the lienclit oi' the client, whenhy. in the end, truth, is elicite<l Ijy
all that <aii lie said on either side, lieing heard, and the triliuual which has to judge
is jdaiM'd in the most advantageous position tor deciding according to right.

In the American Army, the accused is, under the Constitution, al-
ways entitled to counsel as of right. This is exemplitied in the case of
this ]>ctitioiier. who. on his trial, was defended by able counsel in the
pel sons of tlie late Hon. Beverdy Johnson and Charles Eames, esq.

The history of the Ariuy shows no instance of a body of commis-
sioned ollicers assembled liy executive order for the purposes which
l»i(»ught this r>oard together.

Necessarily the Uoard had to hear counsel for petitioner before <leter-
mining its method of procedure. That statement, instead of tbrmulat-
ing i>oints as to what he desired to do, took the character of an elabo-

rate arji'iimont in detail, with presentation at the same time to each ol'
us of the iir.uument in printed form. From this it appeared that hepro-
l)osed to iiitrodnce:

1st. tSo calh'd newly discovered evidence;

2d. Cumulative evidence ; and

3d. Evidence as to his conduct on the 30th of August, 1862, in order
to show animuti, which had been ruled out after argument on the 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 opportunity to ap-
pear, and that all the knowledge that they should have on the subject
should be drawn 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 tesf of cross-examination so that the actual truth should
be developed. (Board's Record, pp. 3 and 1.)

The petitioner'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 a])peared that the names of a number of supposed witnesses,
who had written letters, had been sent by the War Department and
Army lleadcpiarters 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 oihce and mere regulation boards,
where no law prescribes duties such as are prescribed for him on a court
of iiH|uiry. These names of witnesses I communicated to counsel.

A\'itli this state of facts the Board was called uj^on to decide what po-
sition it should occupy in the proposed action of counsel for petitioner.

Had this Board confined the petitioner's counsel to the i^resentatiou
of attidavits in the natiu-e of newly discovered evidence, so as to deter-
mine :

1st. Wliether it was in fact newly discovered e\ddence, and,

2d. AMiether, if it had been placed before the general court-martia]
which tried petitioner, it would have aftbrded 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 i)resented 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 nnist cross-examine and present rebutting evidence, if
any tlicre was.

I'liis obligiition, therefore, having been specifically devolved upon me
by this Boai-d on the 2()th day of June, 1878, under the designation of
"counsel for the government," with 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 far as
want of any judicial authority has permitted.

The rei»resentative of the government should never forget that justice
is all that his government desires, but this does not demand of him a

tacit or exi^ressed acquiesceuce iu whatever may be proposed by an

The petitioner has come here with th'e assistance of three skilful, able,
and learne<l counsel, after 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 tirst met, already a year engaged in his cause.

Wliile, therefore, as representative of the government, I have never
intentionally kept from petitioners knowledge any properly admissible
e^^dence which I deemed material to him (an ol3ligation, by the way,
which liis counsel would not necessarily be under to the government),
and while the record shows that I have even called ncAv Avitnesses for
government at his instance without knowing what they could testify
to, tlius gixing him the i)rivilege of cross-examination (Board's Eecord,
p. .')l*S), iie\'('rtheless, T have considered and do consider, despite some
unthinking criticism, that the government has some rights, and that it
is my duty to look out for them by tlie fullest endeavor to ascertain the
trutlj, the Board itself being responsible for its method of procedure.

That o1)ligiition whiclj, as I have said, this Board placed ui)on me I
have not sought to avoid, for tlie reputation of the Army as well as the
reputations of this Board as individual officers are concerned, that there
sliall be no one-sided, jciitial investigation of this case, if investigation
like a retrial is admissible, and tliat the solemn record of a statutory
court of nine duly sworn general otticers shall not be review<Hl without
a previous exhiljition of the most complete and conclusive evi<lence, so
convincing that all may understand and acquiesce.

All examinations of a judicial or (piasi-judicial nature havQ t;o take,
for the ascertainment of truth, a Mcll-detined course.

In all courts of criminal Jurisdiction of the United States and in all
its military tribunals, which are criminal courts of si)ecial and limited
jurisdiction, the rules of common law in criminal cases, which are the
result of nuitured experience of generatiojis, prevail under the express
ruling of tin; Supreme Court of the United States, excejtt where such
rules have been specifically nioditied by statute.

The i)roceeding ])efore this Board is in the nature of a criminal case
where these rules ought to ai)ply; because, if we take the original re-
<'ord of evidence of ])etitioner's court-martial, with intent to comi)are
it with other so-called evidence here introduced, certainly that which it
is to be comi)ared 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 ditt'erent character would have a
tendency to inq)air the conclusion arrived at:

1st. liecause it would be inii)ossible to determine Avhat weight had
been given to it as against h-ffal evidence iu the original j-ecord; and,

2d. Because it would violate the only legal mode for the ascertain-
ment of truth and satisfaction of juiblic justice in military procedure.

These remarks I make ]»reliminarily to future discussion of some i)or-
tions of ]»etitioner's evidence, so called.

When I heard and read the elal)orate opening statement of petitioner's
counsel, I was glad to jterceive that it coin(,'i<led with the opinions and
synq)athies 1 had hitheito entertained. With no knovrledge of the
facts, it seemed to me that the petitioner's case was strong — that injustice
had i)ossibly been done him, and 1 did not hesitate, in a private way, to
express my sentiments, sentiments entertained by many others, on i)re-
cisely the same grounds.

2 G

Petitioner's unreliable state:ments:

After I be^an to study the case under the respousibility 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 exjiress in my opening argument.
Those were —

First. A suppression Or avoidance of the fact (petitioner's opening
statement, pp. G and 7) that the extraordinary exertions the petitioner
made to embarlv at Newport News for Aquia Creek by midnight of the
20th of August, 18G2, did not arise, as he Avould 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 ]\lajor-General McClellan, his then immediate commander, to
push off", as it was a matter of life or death (G. C. M. Eecord, 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, 1802, an allegation which the evidence of General Grif-
fin (pp. 104 and 105) and also the testimony of General Sturgis or Gen-
eral Piatt show to have been directly contrary to the fact. This is also
apparent fi'om the opening statement (p. 89), in which he shows that this
brigade was with him at Warrentou 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. C. M. Eecord,
p. 266), he <leliberately 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 i^recisely the same line of defense as now, and in order
then to make a reasonable excuse, alleged that tlie enemy before him on
the 29th of August, 1862, was, according to his then assimied 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 liave 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 offered by the Confederates (as see Longstreet's
letter in petitioner's oi)euing argument, x>- 51, and his evidence, Board's
Eecord, p. 64, also Beverly Eobertson's testimony. Board's Eecord, p.
178), that if the Union forces had attacked, annihilation or destruction
would have been the inevitable result. We know from our own military
experience what forces three years later were placed in that category.

FoTTRTH. The fourth allegation which attracted my notice was one
deliberately made by counsel for petitioner after concluding petitioner's
opening statement (Board's Eecord, p. 9), to the effect that dming the
battle of the 29th of August, 1862, the petitioner did not have any belief
whatever that the trooi)s of General Pope were sustaining defeat and
retiring fi^om tlie 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 percei\ed, is directly contrary to a different part of tbe opening-
statement of petitioner, wheie, for another purpose, he introduced a dis-

patcli lie sent that very day to Generals McDowell and King, in which
he said that —

* * * as they [the enemy] appear to have drive?! onr forces liaclc, the fire of the
enemy having advanced and ours retired, I have determined to withdraw to Manassas.
(Petitioner's statement, p. 35, dispatch No. 29.)

If the x)etitiouer never had any belief whatever that General Pope's
forces on his right were being driven back and retiring from the li'eld,
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 dispatch, it may be added, 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 lie sent that dispatch knowing it was false, but as an excuse for
what lie proposed in it to do, he intentionally sent thereby a notice the
effect of which 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 Mithdrew. If the petitioner did not believe what he said in that
dispatch, he committed a great, a stupendous crime, for on those and
previous exertions of General Pope dejiended the safetj- of the national

The petitioner has stated in the part of his argument where he quotes
this dispatch, tliat, " 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 kiKnv, and will see in the course of this argument, how he
issued other orders and sent other messages of the same tenor, which, if
they liad come to the notice of the general court which tried him, would
possibly have saved us all the trouble of reviewing this case.

l^'iFTii. The fifth ]»oint in petitioner's maturely considered opening
statement which attracted iny attention was in language as Ibllov.s

(page .")7) :

And I DOW repeat (and it is shown in the record) that at no time hefore dark had I
or my ol'licers knowh^dfie of any other than an artillery contest going on, or of any
6<titli' pending, or that General Pope needed any aid.

On his trial he had called Col. E. G. Marshall, Thirteenth Xew York
Volunteers (now colonel Ignited States Army, retired, then a captain
in the Kegnlar Army), ^\ho commanded his advance skirinishers, and
who said :

I coukl see General Pope's left and the enemy's right during the greater part of the
tlay, about two miles off, perhaps more, diagonally to our front and to the right. The
enemy set up their cheering and ajipeared to be charging and driving us, so that not a
man of mii voinniand bitt was certain that General Pope's army iras being driven from the field.
In the dirterent battles I have been, I have learned that there is no mistaking the
enemy's yell when they are successful. It is different 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 continual yelling.

Which evidence he also (pioted in his defense. (G. C. M. Record, pp.
190, 209.)

The ])etitioner has since, as we have seen, recalled Colonel Marshall
before this Board for additional evidence on other points.

That origiual evidence of tliis 'witness, just quoted, itself absolutely
contradicts the petitioner's declaration in his opening statement or ar-
gument here. The Board will perceive that this is a little different from
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 I'Dth of August, from which I quote, viz (dispatch No. 27,
p. 94):

To Geii'l MoRELL :

Push over to the aid of Sigel and strike iu his rear. * * * gee if you canuot give
help to Sigel. If you iiud him retiring, move back toward Manassas.

If ]\Iajor-General Sigel's cori)s of General Pope's army had not then
been in action, and the petitioner did not know that it was, or that it
needed hel]i, why did he issue this order I

Again (dispatch No. 37, p. 90) :

General Morell :

* * * The baiUe works well on our right, and the enemy are said to be retiring
up the pike.

Again (dispatch Xo. 31, p. 95) :

General Morell :

* * * All goes well with the other troops.

Again (dispatch No. 38, p. 90) :

General Morell :

* * * McDowell says all goes well and we are getting the best of the fight.

From these (from page 94 to 90 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 division 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 lietitioner 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. liecord, 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 petitioner in his own opening state-
ment, that during all of that same 29th of August, 1802, both he and*
others of his comman4 had knowledge of a iiending battle, and that
General Pope needed aid, des])ite the emphatic statement the petitioner
has made to the contrary.

Sixth. My attention was further drawn to still another paragrai)h in
petitioner's ox)ening statement (page 38), in which, referring to Friday,
29th August, 1802, 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 tliat night.

On ]»age 91, however, of that statement he printed a dispatch he sent

to Maj. Gen. A. E. Biimside, at Aquia Creek, dated Bristoe, 28th August,
1862, 9.30 a. m., in wliich lie said :

Online LibraryAsa Bird GardinerArgument 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 → online text (page 1 of 37)