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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, July, 1863.
NOTE. The references to the evidence, &c., are to the Record of the trial, as published by order of the House of Representatives,-Ex. Doc. No. 71. 37th Congress, 3d Session.
To vindicate a citizen unjustly assailed, is the duty of all men who properly 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 country, and have been rendered 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 patriotic, 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 expectations of his superior officers, his friends and country. 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 in arms, who, being themselves worthy of their noble profession, saw, without envy, every manifestation of his skill and gallantry, and rejoiced at it as enhancing the reputation 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 where 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 vindication, notwithstanding the sentence of the Court affirming their truth, but for the reasons he is about to give. A defence was made before the sentence 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 defence, the undersigned but pays a just tribute to his associate counsel, Mr. CHARLES EAMES, by whom it was, in every thing deserving praise, exclusively prepared. But what occurred without the knowledge 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 attention of the public mind should be once more invited. The grounds referred 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 annonymously 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 contain, 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
printed, 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 direction. 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 evidence 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 distinguished 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 before 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 innocence, 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 decided so immediately after the defence was closed, that all saw it was impossible even that the evidence could have been read, much less so considered as is due to proper judgment, or the defence either read or com