To would so view it, to affect the accused in the matters charged against him, the Judge-Advocate devotes four pages of the thirty of his review to discover what had been the ANIMUS of the accused. quote his language: "As the animus of the accused toward his Commanding General in pursuing the line of conduct alleged against him, must largely affect the question of his criminality, and may furnish a safe and valuable light for your guidance," (he is addressing the President, not the Court,) "in determining points, otherwise left doubtful by the evidence, it is proper that it should be ascertained before entering at large upon the review of the case, which you have instructed me to make." for ANIMUS, "Lieutenant-Colonel Thomas C. H. Smith, an Aid-de-Camp in the staff of General Pope," is resorted to for the charitable purpose. His power to see into the very hearts of men at a single and first interview of a few minutes' duration only, preceded by no prior acquaintance whatever, is, and with a confidence which under other circumstances would, by a plain judgment, be considered simply ridiculous, seriously relied upon. The defense had characterized what this witness had said in regard to it, (and as the impartial and intelligent reader will think justly,) as "ravings, wild fantasies, rubbish, which should not have been suffered to encumber the Record." How unjust this is, says the Judge-Advocate. "The witness (he says) endeavor What an exordium to a paper designed to induce a sanction of a judgment, dis-ed to lay bare the foundations on which honoring an officer whose life had been his belief of the accused's meditated treachpassed in faithfully discharging his duty to ery rested." He said that the manner of his country-whose loyalty and efficiency the accused "was sneering throughout, after the rebellion broke out, had been whenever allusion was made to matters manifested in part under the orders of the connected with General Pope, and to quote reviewer himself, when he was at the head his words, "his look was that of a man of the War Department, and to his entire having a crime on his mind." But the satisfaction, and conspicuously displayed Judge-Advocate admits, that the task in the midst of great difficulties and peril, (discovering with the only opportunity and whose conduct in the many battles in which he had the state of Porter's mind) which he had been engaged, had excited" was a difficult one, and may not have the public admiration, and received the been entirely successful." signal approval of the President. The evidence alone, says the reviewer, is not sufficient to convict the accused, or to use his own words, his guilt is "left doubtful by the evidence." In other words, he admits that in this Smith may have failed, and done the aecused injustice. He adds that "it was physically impossible for the witness to reproduce the manner, the tone of voice, His animus, however, "may furnish a and the expression of the eye, and the safe and reliable light," by which to dis-play of the features, which may have so cover his guilt. It may enable the President to determine what is otherwise doubtful. You must in this way supply, he tells the President, the deficiency in the proof. You must probe the mind of the accused. That may remove the darkness-furnish the light-explain the doubt. And to this, and with an earnestness that evinces a burning desire of success, he addresses himself with poetic license-with a beautiful though somewhat extravagant fancy, which, however it may please the ear, in the judgment of the wise, is a very unsafe guide to truth. Not content with the asserted tendency of the telegrams, which he had offered in evidence to establish the so much wished much influenced his judgment. Yet these often afford a language more to be relied on than that of the lips. He could not hold up before the Court, for its inspection and appreciation, the sneer of which he spoke. And yet we know that a sneer is as palpable to the mental, as a smile is to the natural vision. It is a life-long experience that souls read each other, and that there are intercommunings of spirits through instrumentalities which, while defying all human analysis, nevertheless completely command the homage of human faith. Great crimes, too, like great virtues, often reveal themselves to a close observer of character and conduct, as unmistakably as a flower-garden announces its presence by the odors it breathes upon the air." From these quotations, the reader will see how vital, in the judgment of the Judge-Advocate, to the success of his palpable purpose to have the sentence approved, it was that the alleged criminal animus of Porter should be made out. Nor can he also fail to discover that, even with the reviewer's evident desire to discover it-his belief in spiritual "intercommunings "-his tendency to be led into error by his own imagination-his doctrine that the face often speaks the mind as unmistakably as the presence of a flowergarden is announced "by the odors it breathes upon the air" he admits that in this instance the professor of the art, his lauded Lieutenant Colonel, "may not have been entirely successful." He concedes that he may have misconceived "the look ;" although, if the treachery "was then contemplated, it must be admitted as altogether probable that the shadow of such a crime struggling into being would have made itself manifest." It is evident that the Judge-Advocate is not satisfied with the result of his search, so far, for the much wished criminal animus of the accused. A philosophic poet has said that there are occasions when "Thought meets thought ere from the lips it part, of the Judge-Advocate's purpose, there was another. The witness himself, in addition to the nonsense already referred to, proved that he was not in this particular, at least, to be relied upon. He was so bewildered with his own conceited flummery, that if he is to be believed, it was near making him the greatest of criminals. He told the Court what the Judge-Advocate omits to inform the President, that on his return to his chief, after his ten minutes' interview with Porter, he stated to the former: "I was so certain that Fitz-John Porter was a traitor, that I would shoot him that night, so far as any crime before God was concerned, if the law would allow me to do it." What an avowal, almost a boast. That the laws of man alone restrained him, not the laws of God, from committing murder. And yet, this witness with this horrible avowal fresh in his mind, the Judge Advocate tells the President, is "a man of fine intelligence," "that his conscientiousness rendered him careful, and guarded in his statements, and that he evinced a depth and solemnity of conviction, rarely paralleled in judicial proceedings." What mind, but one so blinded by prejudice, that its light was for a time extinguished, would not, on the contrary, at the testimony of such a witness, even if its once and with indignation, have rejected And each warm wish springs mutual from the heart." But to this, common feelings and a re-transparent doltishness was less conspicuciprocal nature are necessary. Who that knows Porter, and has seen Lieutenant-Colonel Smith, could for a moment believe that such was their relative condition? Well might the reviewer, then, fear that his effort to establisb, by such proof, the intended treachery of the accused, had failed. Well might he be sensible that such a task was even beyond his great powers, displayed either in imagination, spiritualism or argument. All exerted together for such an end, could not lift folly to respectability-make absurdity reason-a ridiculous pretense plausible, or for a moment with a considerate, honest, and unprejudiced judgment, injuriously affect a soldier, who, with fearless intrepidity and consummate and applauded skill, had so faithfully served his country, at a period when so many had proved faithless. In addition to the strong impediment which was thus interposed to the success ous. But prejudice jaundices the finest as well as the weakest intellect, and makes every thing appear of its own color. To immaterial facts and idle fancies, it attaches substance and reality. It affects the very warp and woof of the mind, engenders suspicion, and gives to idle and trivial circumstances, the weight of unanswerable proofs. He who read through all hearts, and knew and described man in his loftiest. exhibition of virtue-his grandest of crime, and his lowest of weaknesses, says jealousy (and in this it resembles prejudice) is one of his frailties. "Trifles, light as air, are to the jealous, confirmation strong as proofs of holy writ," and "shapes faults that are not." These observations are not made in any unkind spirit toward the Judge-Advocate. His talents are admired, and his public services and patriotic virtue in this epoch of our history, have given him an honored place in the grateful heart of the nation. But this renders it the more important, when his great authority is used to justify the sentence against Porter, a soldier to whom the country is yet more indebted, that that authority should be examined, that it may be taken only at its intrinsic, and not at its adventitious worth. If it has been depreciated by what has been already said, such depreciation can not but impair it throughout, and cause the reader to receive with more than doubt all that it urges against Porter. Notwithstanding his evident foregone conclusion of the guilt of Porter, and his belief that to establish it to the satisfaction of the dullest and least charitable, it was most important to make good the hypothesis of his antecedent meditated treachery, and not satisfied that what were properly characterized as the "ravings and wild fantasies" of Lieutenant-Colonel Smith, would have that effect, he seeks to accomplish the end by resorting to certain telegrams, sent from time to time, during the campaign, by Porter to General Burnside. Some of these are in part given, and as the reader will see, most unjustly applied. Porter reported to Pope in writing, on the twenty-sixth, and in person on the twenty-seventh of August, '62. He had left Burnside, (under whose command he had been for some days before,) and he was requested by that officer to inform him from time to time by telegraph, how matters progressed. This request was virtually an order, and so considered, and acted upon by both officers. General Burnside said that he regarded sending the dispatches to him by Porter, "as an official act done by him in the performance of his duty," under his "direction." But this, says the Judge-Advocate, (p. 180,) "so far as the purpose for which they were offered by the Government is concerned, it is wholly immaterial under whose prompting, or for what end they were written." Porter, at the time, "entertained feelings of contempt and hostility toward the army of Virginia, at its commander," and, "it matters not whether in a private and confidential, or in an official communication." So reasons the Judge-Advocate. Besides its shallowness, which of itself condemns it, he does not inform the President that they were sent under orders, or of what was proved by Burnside and others, though both facts were most important to enable the President to pass understandingly upon the case, that every fact communicated by the dispatches was true. Burnside was asked by the Court, "From what you know now, have you any reason to believe that the information given by General Porter in these telegrams, (meaning all that were sent to him,) as to the actual state of the army under General Pope, was not correct ?" and he answered: "I am myself quite satisfied that it was correct." "But that opinion is merely one based upon the information I then received, and what I have since heard." (P. 184.) And the Government offered no evidence to prove that they were not correct to the letter. Nor does the Judge-Advocate give the President, nor allude to it in any part of his review, the benefit of General Burnside's opinion, formed on these dispatches, as well as on his whole intercourse with and knowledge of Porter, that from the first, and to the period when he testified, he, Burnside, was satisfied that he would prove, and had proved, true to his duty, to Pope and the country. This is, too, the more surprising, as his very first question to Burnside discovers that he considered his opinion important. Could he have obtained the one he desired, would he not have used it, and even with more confidence than he uses the supposed "intercommunings of spirits," to show that Porter meditated treachery? His question was: "Will you state whether at the time these dispatches were received from General Porter, (say between twenty-sixth and twenty-ninth of August inclusive,) any of them excited in your mind the apprehension that General Porter might not be inclined to do his whole duty as a subor Not for what end? However important to the public good the information they gave was however patriotic the motive, the sending of the dispatches was imma terial in an inquiry as to the guilty or in-dinate under General Pope?" The answer nocent purpose of the animus of the accused in the sending of them. They were offered by the Government to prove that was: "I RECEIVED NO SUCH IMPRESSION AS THAT FROM THE DISPATCHES. I saw in I heard expressed by a large portion of the officers with whom I happened to be in communication at the time, a very great lack of confidence in the management of the campaign. It was not confined to General Porter. I saw in his dispatches and I told General Porter himself so, what may have been indiscreet language; BUT NOTHING THAT LED ME, FOR ONE MOMENT, TO FEEL THAT HE WOULD NOT DO HIS WHOLE General McClellan, under whose special eye he had served in council and on the field, so spoke of him. He said that from the time Porter "knew he was to go to the assistance of General Pope," he did, in his opinion, do "all that an energetic, and zealous, and patriotic officer could have. done," (page 196.) But the opinions of sensible men-men of well-known character, intelligence, and patriotism-seem to have been considered by the Judge-Advocate light as air, when contrasted with those of Smith and Roberts. The former, he appears to have thought, possessed but the ordinary means nature furnishes ordinary men to form opinions, whilst to one, of the latter, at least, Smith, she had supplied “instrumentalities which, while defying all human analysis, never of human faith," and as to Roberts, his well-known and universally acknowledged character for perfect veracity, almost chronic love of truth and spotless reputation with his brother officers, placed his evidence and the sincerity of his opinions beyond all possible suspicion. This evidence (could it have been by design?) was not only not given to the President, but its existence was not even intimated, although the Judge-Advocate was instructed by the President "to report fully upon the bearing of the testimony (the whole, of course) in reference to the charges and specifications," upon which Porter was tried. Neither was the Pre-theless completely command the homage sident informed that, in answering the question by the Court, (the one already quoted,) which was intended, if possible, to find out whether Porter went under the command of General Pope with unfavorable impressions towards that officer, or whether such "impressions were gained after he was on the ground," the same witness testified: "He moved his troops off rapidly, and marched them at night, and every thing within my limits appeared to me to indicate that he was DETERMINED TO GET HIS TROOPS UP THERE AS RAPIDLY AS POSSIBLE. I SAW NOTHING TO INDICATE THE REVERSE," (p. 182.) Nor was the President advised that Burnside had testified, that in departing from an order of General McClellan as to the movement of his command from the Peninsula, and when it was known that they were to go to the aid of Pope, Porter was enabled to accelerate the movement-in the words of the witness," to embark that much sooner and send the transports back for others," (p. 184.) Nor, finally, was the President informed that, in answering a question of the accused, the same witness had said, "I have never seen any thing to lead me to think that he (the accused) was ANY THING BUT A FAITHFUL AND LOYAL OFFICER;" nor that, in his opinion, every officer who knew him, and had witnessed his conduct throughout the war, as well as when he was under Pope's command, expressed, and in the strongest terms, PERFECT CONCURRENCE IN THIS OPINION. That a chivalrous officer, whose life had been given to his country, and who but recently had so added to the reputation of its flag, should be sacrificed to reasoning so repugnant to common-sense that the unprejudiced mind rejects it at once as an insult to its intelligence, is one of the many extraordinary occurrences which, during the present rebellion, has so astounded the public. What but intellect perverted, could claim, as is done, for treason, the nobleness of patriotism for oaths violated, the character of virtue-for rebellion, the justification of an absurd theory, or of an oppression that existed nowhere but in a diseased fancy? And what adds, if that be possible, to the injustice of the use attempted to be made of these dispatches, and so strongly indicates a predetermined conclusion against Porter, is the fact that, although stated to be offered to establish his alleged contemplated treachery, the Judge-Advocate objected to Porter's giving in evidence other dispatches to | General Burnside a few days before and after the twenty-sixth and twenty-ninth of August, (the dates of those offered by the Government,) that is, from the twentysecond of August to the first of September, to disprove the alleged purpose, the purpose. The Judge-Advocate, even in animus. Strange as it may seem, the regard to the dispatches which he uses as objection was sustained by the Court, and establishing, in his view, the guilty purpose, the proof rejected. A protest was entered. omits to give the whole of any one of (See Appendix I.) That protest was them. He extracts a few expressions from published in the papers of the day, and in each, without alluding to its context, a a short period the Court and the Judge- practice ever unfair and unreliable. Had Advocate saw that the ruling of the Court even the whole of these dispatches been was received with astonishment and dis- disclosed, the President would have seen, approbation by the intelligent press of the and the public, for whom the review of country. Clearly illegal as the decision the Judge-Advocate was also designed, as was, and strange as it is that it did not so proved by its general circulation by the appear to the Judge-Advocate and the War Department, that these dispatches Court at the first, they adhered to it until themselves proved no faithlessness on the manifestation of public opinion on the Porter's part to Pope or the country, subject caused him to suggest the waiving either actual or contemplated. Whilst of his objection, and the Court to admit those which he does not give at all, or the evidence. The dispatches were then even allude to, with the exception of the received, but no one, aware of the circum-one just mentioned, to McClellan, of second stances under which they were received, September, all demonstrate a fixed purbelieved that, however conclusive they pose and earnest solicitude to do his full were in disproving the alleged criminal duty to both. (The reader will find these intent or animus, they would have the dispatches in pp. 228-235.) It is conslightest effect with the Court or the fidently asserted that every one of them Judge-Advocate. The result proved that evinces not only a mere willingness, but in this opinion there was no error. Nor the strongest wish to do every thing in does the Judge-Advocate, in his review, his power to render the campaign successeven notice them. The only reference he ful, or, failing in that, to lessen, as far as makes to them is to a single one of these possible, any disaster that might befall it, dispatches which Porter desired to send, and especially to save the Capitol. His and was not permitted to send, to Major- orders, too, to his corps commanders, to General McClellan, dated second of Sep- be found in the same pages, evidence intember, 1862, and that one is not given at telligence, zeal, and energy, and the dislength; and, although admitted to be patch referred to, to McClellan, of second "full of fervent patriotism and professions September, whilst he was still under the of devotion to his duty in connection with command of Pope, and involved in his fate, the Army of Virginia and its commander," breathes the same patriotic spirit. That the Judge-Advocate adds that, "unhappily dispatch was an answer to one from it came too late." The merest trifle, McClellan of the day before, urging him which a fair mind would exclude as evi-" and all friends" to give "the fullest dence of charges of dishonor and treachery against any one, much less a soldier, ever before esteemed, is seized upon with avidity and tortured, or sought to be tortured, inconsistent as the effort is with common-sense, into proof of guilt, whilst the weightiest facts, those which, with such a mind, would be conclusive of innocence, for the most part are not mentioned at all, or when in part referred to, are rejected as unimportant, or as coming "too late." The President, however, should have been told of them, and the public should see the nature of the facts so discarded as not proving, or hardly as tending to prove, Porter's innocence of and most cordial coöperation to General GENERAL POPE, THEIR CORDIAL CO-OPERA |