Reverdy Johnson.

A reply to the Review of Judge Advocate General Holt, of the proceedings, findings and sentence, of the general court martial : in the case of Major General Fitz John Porter, and a vindication of that officer (Volume 1) online

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Online LibraryReverdy JohnsonA reply to the Review of Judge Advocate General Holt, of the proceedings, findings and sentence, of the general court martial : in the case of Major General Fitz John Porter, and a vindication of that officer (Volume 1) → online text (page 1 of 11)
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^mm of Jiultje ^(luocatc General Jolt,


Proceedings, Findings and Sentence,




Major General Fitz John Porter,

And a YixDiCATiox of tilat Officer,

Baltimore: . . . Pp.inted by John* Murphy & Co.

PuBLisiiEH.s, Booksellers, Printers and Stationers,

18 2 B A I. T I ,M K E S T K E H: T .

1 8 6 P,.



^i^uiciu of Jiidijt ^(luocHte ^Nin'HlJolt

Proceedings, Findings and Sentence,



Major General Fitz John Porter,

And a Yindication of that Officer


Baltimore :.,. Printed by John Murphy & Co.

Publishers, Booksellers, Printers and Stationers,

182 Baltuiorf, Street.

Ccn^M. ^


The preparation of this Reply was delayed until a printed copy
of the Record in the case of Major General Fitz John Porter
was obtained, and since, by professional engagements, which the
writer was not at liberty to set aside. It is now submitted in the
confidence that the intelligent and impartial reader will coincide
in opinion with the writer, that a greater injustice was never done
through the forms of a judicial proceeding, than was done by the
sentence of the Court Martial in the case of that gallant officer.

Baltimore, Jubj, 1863.

Note.— The references to the evidence, &c., are to the Kecord of the trial,
as published by order of the House of Representatives, — Ex. Doc. No. 71. 37tli
Congress, 3d Session.


To vindicate a citizen unjustly assailed, is the duty of all men who pro-
perly estimate the value of individual character and its influence on the
public good. The duty is the more imperative, if the services of such
citizen have contributed to the honor of his countrj^, and have been ren-
dered with great toil and solicitude, and amidst frequent and imminent
perils. To this general obligation in the instance which causes this
paper, there is with the writer superinduced the special one growing out of
the professional relation in which he has heretofore stood to the officer
whose case forms its subject. His first personal acquaintance with
Major General Fitz John Porter was, when he became one of his counsel
on his recent trial Before then, he knew him only, (and who did not so
know him who has followed the history of our sad civil war,) as a pa-
triotic, skillful and gallant officer, giving his days and nights to duty, ever
discharging it to its fullest measure, and on all occasions answering the
highest exi)ectation3 of his superior officers, his friends and country. In
his hands the military service had not only suffered no dishonor, but had
attained even higher distinction. He had achieved for himself a name of
which the nation was justly proud, and a reputation amongst all those of
his brothers iu arms, who, being themselves worthy of their noble profes-
sion, saw, without envy, every manifestation of his skill and gallantry and
rejoiced at it as enhancing the I'cputation of the service, and giving the
assurance that a patriotic soldiery led, as Porter led his men, could not fail
to extinguish the rebellion, restore the people to their former happiness and
prosperity, reinstate the Government in its rightful authority, and give it a
name with the nations of the world, even brighter and more commanding
than it had ever possessed. The high esteem in which, in common with
all, the writer held Porter, was, if possible, increased after he became his
counsel. And to that esteem was then soon added the closer, and even
stronger, ties of personal friendship. For weeks, seeing him almost
constantly, not only in the Court by whom his case was tried, but in
private consultation, he had every opportunity of becoming acquainted
with the man, and as far as he is capable of judging, with the officer.
He witnessed in the former that freedom from vanity, that mildness
of disposition, with that firmness of purpose which are often united,
and a strong sense of honor that won for him his highest regard, and
in the latter a devotion to his profession, a perfect acquaintance with
all the conflicts in which he had been engaged, a cheerful readiness in


rendering honor where honor was due, a mildness of sensure w^here he
thought errors had been committed, an ardent love of country, and a
confident conciousness of innocence of the charges which he was to answer,
which, independent of all other evidence, satisfied him that such charges
were in every particular wholly unfounded.

When the evidence was all given, he regrets to be compelled to say,
that he was further satisfied that they were as malicious as unfounded.
But, though then, and still so convinced, he would never have deemed it
necessary to bring his case again before the public in the form of a vindica-
tion, notwithstanding the sentence of the Court affirming their truth, but
for the reasons he is about to give. A defence was made before the sen-
tence was pronounced, and by all who heard it, or who have since read it,
a defence considered as triumphant and unanswerable. So universal was
this opinion, that when the evidence and the defence had been seen, an
acquittal was anticipated with undoubting confidence. So great and
general was that confidence, that never in the history of jurisprudence, civil,
criminal or military, was a judgment announced that so shocked and
startled the sense of public justice. In speaking of the ability of the de-
fence, the undersigned but pays a just tribute to his associate counsel,
Mr. Charles Eames, by whom it was, in everything deserving praise, ex-
clusively prepared. But what occurred without the know^ledge of General
Porter, or his counsel, whilst the case was progressing, and in the Court,
whilst the evidence was being given, and at the close of the reading of
the defence, and what has since occurred has rendered it proper in the
opinion of the writer, that the public judgment should be again invoked.
Upon various grounds, it is not less due to Porter, and to truth — than to
the good of the military service, and to the confidence so material to that
good which is to be placed in future military judgments, that the atten-
tion of the public mind should be once more invited. The grounds re-
ferred to, are these :

I. — Pending the trial, the evidence of three of the leading witnesses of
the prosecution, Major General Pope, Brigadier General Roberts, and
Lieut. Colonel Thomas C. H. Smith, was secretly and anuonymously
published in Washington, in pamphlet form, with a title page which, as
evidently intended, would lead the reader to suppose that it contained
either all the evidence in the case, or that the evidence that it did con-
tain, was in no particular rebutted by other proof. Porter has since
discovered that the cost of this publication was paid by Smith, and that
Roberts transmitted copies to persons in several of the Northern States,
and as believed, to many members of the Senate of the United States, a
fact disclosed in part in a short debate in that body at its recent session.
On a motion calling for the Record for the purpose of publication — Mr.
Fessenden objected, because, as he stated, the Record had already been

pi'inted, a copy of it having been sent to him (by whom sent he did not
say, because he did not know,) but doubtless by Roberts, or by his dh'ec-
tion. Even by so discerning a gentleman and accomplished a lawyer as
Fessenden, the fraud of the publication was not discovered.

II. — The rulings of the Court, (which for obvious reasons could not be
commented upon in the defence,) on questions of the admissibility of evid-
ence in some instances, and as the undersigned believes, in all, were so
palpably erroneous, and so injurious to Porter, that they foreshadowed
in colors too striking to be mistaken, the result to which a majority of
the Court would arrive. These errors were so apparent as to excite the
surprise, and incur the censure, as the writer knew at the time of distin-
guished Judges, and member of the bar without an exception, unless the
Judge Advocate was one. It is not meant to say that he was, especially
as on more than one occasion, he himself intimated the error and induced
the Court to correct it.

III. — When the evidence was all introduced, the counsel of Porter
requested to have until the following Monday to prepare the defence, but
the Court suggested, because of other pressing engagements of some of
the members, the following Saturday. This suggestion was agreed to by
the counsel with the understanding, sanctioned by the Court, that if the
Judge Advocate replied, the counsel should have the right to rejoin.
Whether he would reply or not, that officer declined to say. The Court
was then cleared, no one remaining with them but the Judge Advocate.
The evidence was, it is said, read over, doubtless commented upon by all,
and from the clerity with which the sentence followed the reading of the
defence, even charity cannot but believe, that it was determined upon be-
fore a word of the defence was heard. The defence was read on Saturday,
the 10th of January, 1863, and the moment it was concluded, which was
about 2^ o'clock, P. M., the Judge Advocate said, orally, that he did not
propose to answer it, but that he submitted the case on the part of the
government without remark. The Court was then cleared, the Judge
Advocate again remaining with them, and before 6 o'clock, P. M., the
sentence pronounced that the accused "be cashiered," and " be forever
disqualified from holding any office under the Government of the United
States." The character of the evidence as published, from day to day, in
the Journals of the country, had so satisfied the public of Porter's inno-
cence, and that conviction become the more fixed and absolute when it
was seen that the Judge Advocate declined to answer the defence, thereby
seemingly submitting to a judgment by default, and that the Court de-
cided so immediately after the defence was closed, that all saw it was im-
possible even that the evidence could have been read, much less so con-
sidered as is due to proper judgment, or the defence either I'ead or com-

pared with the evidence, a measure called for by judicial propriety and
necessary to a just and enlightened conclusion. In this state of the public
opinion, as manifested by the concurrent voice of the entire press, that
spoke at all, the record was placed in the hands of the President. Un-
less he had before been unofficially advised of it, he must, when he read
the sentence, have been struck with the same surprise, with which its after
announcement struck the public ear. Of all the men in the country, he
must have experienced not only astonishment, but concern. In May,
1861, he had commissioned Porter a Colonel in the regular array, in
August of the same year, a Brigadier General of Volunteers, and in July,
'62, and for distinguished services in the Peninsular Campaign, a Brevet
Brigadier General in the regular army, and a Major General of Volun-
teers. Honors due to him, in the view of the President, for amongst
others, the services rendered to his country in the battle of Malvern, a
battle which, in the words of his Chief, McClellan, in a letter to the
President written just afterwards, and near the battle ground, and speak-
ing, as he said, "not from hearsay, but from personal observation," that
had eclipsed, " in its result any other engagement in the campaign," and
that too much credit could not " be given to General Porter, for his skill
and gallantry oh the occasion."

The President, then, could not but have paused before approving such
a sentence, and asked himself how it was possible that Porter, the idol
of his men, the boast of the army, the pride of his chief, and the recipient
of honors which, from a sense of public justice and gratitude, he had coff-
ferred upon him for distinguished and valuable services rendered his
country in a most perilous crisis, should all at once have been so recreant
to his past patriotism, so forgetful of his then well-earned and universally
acknowledged fame, as to have committed acts almost before the ink was
dry upon the parchments containing his commissions, and whilst the public
heart was so gladdened by his deeds of skill and daring, as to demand, in
the judgment of a Court composed of brother officers, that he "be
cashiered," and " forever disqualified from holding any office of trust or
profit under the Government of the United States."

The Record was of great volume. As published by Congress, inclu-
sive of the defence, it consists of 298 closely printed octavo pages. The
President should have taken time, before approving of such a sentence,
the writer respectfully submits, to have examined it to find what it could
contain to justify such a judgment. The mere sentence itself gave him
no such information. It was, as is usual, but a mere naked judgment,
and must, therefore, have left his mind in the condition of amazement in
which it could not but have placed him. Nor could he discover why, if
at all, his distinguished Judge Advocate should have sanctioned such a
result. The Record contained no reasons of that officer, summary or in
detail. It did contain the defence of the accused, and if he had read

that, his amazement could but have been increased, as he would have seen
that it was, what all but the Court, or to speak, (as there is reason to be-
lieve,) more accurately, a bare majority, thought a complete and perfect
vindication. The President's time, however, was perhaps so engrossed
by matters which he supposed to be of more pressing national moment,
(as if any thing was more important than justice,) that it was impossible
within the period, the 12th of January, 1863, when the Record was
placed in his hands, and his approval of the sentence promulgated on the
21st of that month, that he could have read it through carefully, or at
all, or examined the testimony, or tested the fairness or sufficiency of the
defence, by an accurate or critical review of the evidence. Xor, as it
now appears, did he undertake Avhat, in the interval referred to, would
have been an impracticable task. For, as is stated in the I'eview of the
Judge Advocate, which it is the main purpose of the writer to answer, on
the 13th day of January, 1863, the day after the Record was transmitted
to him, the Pi'esident issued " written instructions" to that officer, "to
revise the proceedings of the Court Martial in the case of Major General
Fitz John Porter, and to report fully upon any legal questions that
may have arisen in them, and upon the bearing of the testimony in refer-
ence to the charges and specifications exhibited against the accused, and
upon which he was tried." These instructions produced an elaborate
paper, dated the 19th of the same mouth. The Record between that
day and the date of the instructions, and the prior 13th, must have been
continuously in the exclusive possession of the Judge Advocate. It is
probable that the Record, with the review, was not returned to the
President before the 20th, but, however that may be, it could not have
been returned at the earliest, sooner than the day of the date of the
review, the 19th, and on the 21st the sentence was approved. It is even,
therefore, the more obvious than it would otherwise be, that in this short
period of two days, proper examination and comparison of the proofs,
and the bringing to their test Porter's defence, and subjecting to the same
test the Judge Advocate's review, (each vital to a proper consideration
and just conclusion,) could not have been made by the President. The
inference, therefore, is irresistible, that in this instance, at least, (with
motives which his established character prevents our questioning how
much we may lament its weakness and its injustice,) he has rested his
judgment, though severely calculated to dishonor a well tried public ser-
vant whom he had but recently before, over and over again, honored by
acts of distinguished official favor upon the argument of his Judge Ad-
vocate alone, without collating it even with the portions of the evidence
quoted by that officer, much less with all the evidence so material to
understand properly and justly the portions quoted, or even stopping to
discover what is thought to be quite apparent, the depth of the prejudice
which that officer entertained towards the accused. Reposing, however,


confidence in the Jiidore Advocate, be has, yielding to the pressure of
other engagements, sul)mitted his own judgment to the keeping of that
officer. And he did tliis so entirely, that it does not seem to have oc-
curred to him, that it was in any respect due to Porter that he should
have an opportunity, through his counsel, of replying to the argument of
that officer. What occurred in the Court on that point could not, there-
fore, have been made known to him. He could not have been told, that
in the view of the Court, if a reply was made to the defence, it was due
to the accused, and his privilege, that he should have the right to rejoin.
But it is most singular, and not to be accounted for, except that his other
harassing and important engagements deadened his sense of justice, that
a right so justly due to Porter, and so necessary to truth, had not sug-
gested itself to his honest mind, and more especially, as his long expe-
rience as a lawyer must have taught him its importance.

But so it was. The accused then, as far as the President's action is
concerned, has had his case decided on the argument of the Judge Advo-
cate's review, not only without having had accorded to him the privilege
of reply, but without the President's having taken time to read all the
evidence, if he read any part of it, or to read the defence, or to test that
or the review by comparing either with the whole evidence or with any
part of it. The rule of military law as laid down by Sir Charles J.
Napier, is now well settled, that no matter how many addresses are made
by either party, "the Prisoner has the right to speak last." Bennet,
pp. 123, 124. In this instance, the rule was grossly violated. The last
speech was made by the Judge Advocate. Porter was not only not per-
mitted to reply, but the existence even of the review was apparently con-
cealed from him, certainly was not known by him until in common with all,
after the sentence was announced approved, and was circulated by the War
Department. To any mind accustomed to the investigation of truth and
the ascertainment of facts through human testimony, such means are
known not only to be important, but essential. No conclusion arrived at
in any other way, can be relied upon. No judgment, otherwise formed,
is entitled to the least respect. In any instance it is as likely to be wrong
as right, and more likely to be wrong, in a ease where it affects injuriously
the character of a citizen whose antecedents had challenged not only the
good opinion of those who knew him, but their admiration, and whose
claim to public esteem rests on admitted valuable and perilous public
service. In such a case, mental imbecility or prejudice, so deep and dark
as wholly to cloud reason, must be supposed to be the foundation of the error.
And with an evident consciousness that the observing and correct mind
of the country would be astounded at the result, with a zeal and industry
worthy of a better cause, the same resort, which so evidently misled the
President, has been adopted to quiet the certainly anticipated public con-
demnation. Whilst the Senate refused to call for the Record in order to


its publication, (because of their having been deceived through the degra-
ding artifice of Roberts and Smith, into the belief that it had all been
published,) that the people might see the whole case, the review of the
Judge Advocate was at once published at the expense of the War De-
partment, and scattered broad-cast over the land. Other things, too,
have happened, suggestive of most unpleasant reflections, reflections cast-
ing more than a doubt on the mere abstract correctness of the Court's sen-
tence. Almost simultaneously with its publication, three of the members
of the Court were made Major Generals, all certainly most estimable gen-
tlemen, and possibly competent soldiers, but with no claims to such pro-
motion, (one of them, Major General Prentiss, the only one of the three,
who it is confidently believed, did not concur in the sentence, has recently
proved himself worthy of his rank, by his skillful defence of Helena, Ar-
kansas.) But the public in vain, at the time, endeavored to recollect any
fact as to either calling for such an honor, and have not been more suc-
cessful since, except and very recently as to Prentiss. And they have
asked, and still ask, if their distinguished services and the good of the
country required their elevation to such liigh rank, why was it not con-
ferred before ? and why, why, above all, was it the immediate sequence
of the sentence against Porter ? Who can answer satisfactorily either
question ? None certainly has as yet come from any quarter. The Pre-
sident of the Court, Major General Hunter, was also immediately re-
turned to a command from which he had been shortly before removed for
acts of alleged mistaken policy, or excess of authority, and from which it
has been found necessary to remove him a second time.

Of the three witnesses. Major General Pope was continued in an im-
portant command, notwithstanding his sad failure in his Virginia cam-
paign. Brigadier General Roberts was assigned to a more important
one than he had ever held before, or to which any competent officer who
had known him believed him equal — nor in his career since has he done
anything to attract attention, except in the ^ay in which his former chief
signalized the commencement of his Virginia career, the issuing of pro-
clamations as uncalled for as they were ridiculous and futile. It has also
been found necessary in his case, to take it from him, and he is now once
more on Pope's staff.

What disposition has been made of Lieutenant Colonel Smith, is not
known, and probably no one cares. He perhaps continues to be one of
the military family of Pope, ready whenever his exigencies may require
it, to display for his benefit, the extraordinary faculty which he claims to
possess— the reading of souls at first sight. The faculty of receiving, to
use his own words, an "impression," although unable to analyze it from a
few moment's intercourse with another — the power to obtain "one of those
convictions that a man has a few times, perhaps, in his life, (he is modest
enough not to claim to have it always at his command,) as to the character


and purposes of a person who he sees for the first time," and although
" no man can express altogether how such an impression is gained from
looks and manner, but it is clear."

Under all these circumstances, with every ingenuous mind, a sentence
announced as this was, would be without the slightest authority, and no
reason could exist for subjecting it to serious examination. The fact,
however, that the present one, is maintained and justified by Mr. Judge
Advocate General Holt, makes it in a measure advisable. The well
established reputation of that officer, his perfect loyalty, his eminent abil -
ity, and the somewhat plausible character of the review, considered by
itself, seems to require that that review be answered. For, however, as
the writer has good reasons for believing, this is thought to be unnecessary
by those who have made themselves acquainted with all the evidence,
there must be a numerous class of citizens, who not having done so, may
have been led estray by it.

The ingenuity of the Judge Advocate and his deservedly high reputa-
tion, gives to it an authority to which, it will be seen it is not entitled, when
it comes to be examined. A reader uninformed as to the evidence, will
be unable to detect his sophistry or discover his prejudice, a prejudice
doubtless unknown to himself, but not the less strong, and perhaps stronger
on that account. Under this impression, it is the purpose of the writer
to subject the review to the ordeal of reason and of truth. This he feels
to be not less due to Major General Porter, than to the good of the ser-
vice, and the benefit of the country. An officer, whose deeds on so many
battle fields in the present war have so enhanced the nation's fame, filling

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Online LibraryReverdy JohnsonA reply to the Review of Judge Advocate General Holt, of the proceedings, findings and sentence, of the general court martial : in the case of Major General Fitz John Porter, and a vindication of that officer (Volume 1) → online text (page 1 of 11)