APPENDIX.

I.

WASHINGTON, D. C., December 26, 1862.

With all proper respect for the ruling of the Court on Wednesday, refusing the accused the right to give in evidence the telegrams and messages he then offered, dated before and after the 29th of August, (that is to say, from August 22 to September 1, 1862,) he begs leave to enter on its proceedings this protest.

The accused is charged, amongst other things, with having disobeyed the several orders stated in the specifications of the 27th August, 1862, 29th August, 1862, (4.30 p. m.,) and 29th August, 1862, (8.50 p. m.,) and the prosecution has endeavored to prove that such disobedience was by design, because of a fixed purpose on the part of the accused not only not to co-operate with the general in command in the existing campaign, but to fail in his duty in that regard.

With this view, certain papers, being a part of the same series of telegrams with those rejected, were offered by the Judge Advocate, not objected to by the accused, when the purpose for which they were offered was stated, and received by the Court.

And with the same object the opinions of the witnesses, Roberts and Smith, founded, as they said, on what they represent to be the manner and conversation of the accused, and also on what the first said he heard from another that the accused would fail the commander-in-chief.

In the words of the Judge Advocate, this evidence was produced to show the animus of the accused towards his chief, and in that aspect was admitted by the Court. The accused respectfully maintains, that if evidence of that description, for such a purpose, be admissible (as he concedes it is) it is equally admissible, and is his right, to show by his conduct just before, at, and after he came under the command of General Pope, by what he did and by what he said, orally or in writing, that the asserted purpose-the alleged ANIMUS-is wholly untrue; but that, on the contrary, his real purpose-his real animus-from the first to the last, was to do his whole duty to the utmost of his ability, and render his general and his country all the aid in his power.

If the prosecution had contented itself with exhibiting the orders in the specifications which he is said to have disobeyed, and given evidence of the fact of disobedience, the accused is advised that, even then, the proof which the Court has ruled out should have been received. But when, not content with that course, it has attempted to prove his mental purpose-to fathom his mind-to show that from personal grudge to his general, or other cause, he designedly disobeyed such orders, he is advised that the evidence rejected is clearly admissible

The general rules of evidence are the same in courts-martial as in other Courts. They are based on principles of universal application, and which, as experience has demonstrated, are best calculated to ascertain the truth. One of these, as well settled as any known to the law, is that where a mental intent with which an act is done is in issue, the acts and declarations of the party a few days before, at, or

a few days after the time when the intent is charged to have existed, bearing on such intent, may be given in evidence by either party. This is a familiar rule in cases, amongst others, of acts of alleged bankruptcy or insolvency, change of residence, and of many acts of alleged fraud In the first, whether the act charged as an act of bankruptcy is one or not, often depends on the intent with which it is done; and what the party did before or after is constantly admitted as legitimately illustrating the actual intent.

In the second, whether a man has changed his residence often, also depends on intent. He may have removed, to remain permanently or temporarily; and what he has done or said before and after removing is allowed to prove or disprove intent.

In the third, whether the imputed fraud was perpetrated or not, often depends on intent unexplained. The mere act itself may appear criminal or innocent. It is the purpose which gives it its actual character, and this purpose may be shown by either party, by acts and declarations of the person charged before and after the period of the impeached act. This principle, I am advised, is fully settled, not only in all the elementary writers on evidence, but by the Supreme Court of the United States in, amongst other cases, that of Wood vs. United States.— (16 Peters, 362.)

And it is respectfully hoped that the Court will, on further consideration, see the justice of the rule. Its justice is strikingly illustrated in this instance: the accused is charged with the dishonorable, traitorous purpose of having disregarded the orders of his chief, to gratify some supposed personal dissatisfaction with him, wholly reckless of its consequences to his country. He is charged with having caused the defeat of our arms, and hazarded the safety of the capital, under the same degrading impulse. One of the witnesses has sworn, without objection from the Judge Advocate or the Court, that a deceased officer of chivalrous character and spotless patriotism had declared to him, before the date of either of the orders, that the accused would fail his chief. Another has stated, also without objection, that his conduct and manner in his presence were such that he was satisfied that he was a traitor, and that nothing but the fear of human laws prevented his killing the accused on the spot. This evidence was offered and received to show his animus-his intent. Proudly conscious of his innocence, and knowing the baseness of the calumny, he did not object to its introduction, being perfectly willing to let it all go for what it is worth. But to deny him the right, after it is received by the Court, to meet it by proving what is wholly inconsistent with it-acts of duty about the same period, orders, and messages, having no possible purpose but a faithful discharge of duty to his chief and his country-it is submitted is a violation of the rule of evidence, and is to deprive him of the very best and most persuasive proof that the nature of the accusation admits of.

To show that he was not a traitor, he desired to establish constant acts of duty immediately preceding and succeeding the acts which he is charged to have done traitorously. To show faithfulness to duty to his chief, he desires to prove, as the rejected evidence does, that to get to his command, and after he reached it, he did everything that diligence, zeal, ardor, and all the skill and ability which he possessed enabled him to do to assist his chief in every possible way and at every possible hazard, so as to render his campaign a successful one.

Your ruling puts this out of his power, and, respectfully protesting against it, he can do nothing further than to submit it to your more mature consideration. (P. 253, 254.)

F. J. PORTER, Major General.

II.

In addition to the propositions embraced as mentioned in the text, other gross errors characterized the rulings of the Court. 1. As will be seen, (p. 21,) this question was propounded to Pope.

"If, as you have stated, you were of the opinion that the army under your command had been defeated, and in danger of still greater defeat, and the capital of the country in danger of capture by the enemy, and you thought that these calamities could have been obviated if General Porter had obeyed your orders, why was it that you doubted on the 2d of September whether you would or would not take any action against him?"

The witness declined to answer it, "as not being relevant to this investigation. The Court was thereupon cleared, and when opened, the Judge Advocate stated its decision was, "that the question was irrelevant!” Porter submitted a protest in writing. The Court was again cleared, and after sometime was opened, and Porter told that his protest would be held "under advisement until" the next day. On the next day, the protest was read by the Judge Advocate, and is as follows:

"The witness having, in his examination in chief, attributed the disasters of the army under his command in Virginia, in August, last to the failure of the accused to obey all or some of his orders, and having stated that he was of the opinion that such orders might have been obeyed; and it being so far as the prosecution has gone, upon his evidence that such disobedience occurred that the prosecution has endeavored to be maintained; the accused is advised by his counsel that the question just ruled out by the Court is not only relevant and legal but most material, in order to show that the recollection of the witness in such his examination in chief is not to be relied upon; and that he for the first time afterwards charged the alleged disobedience upon the accused; because it was the duty of the witness, not only not to doubt whether he would take any action in relation to the matter, but to report the same as a grave offence on the part of the accused; and his determination or doubt whether he would take such action, or make such report, are facts not only admissible but material evidence, that at the time to which the question relates he did not believe there had been any such disobedience on the part of the accused, and thereupon respectfully requests to have this protest entered on the proceedings of the Court against the exclusion of the question referred to.

"F. J. PORTER, Major General."

The Judge Advocate said: The witness requests the permission of the Court to answer the question referred to in the protest just read.

The accused made no objection.

The Court was cleared and after sometime opened, and the Judge Advocate announced the decision to be that the witness have permission to answer the question. When the witness objected to the question for irrelevancy, his objection is sustained. After the protest is heard by him and the Court, and he requested to be permitted to answer the question, it was decided, although still as far as is known in the opinion of the Court, irrelevant to allow him the permission. As the Court had no authority to receive any but relevant testimony, the result of this ruling was to leave the relevancy or irrelevancy of the question to the decision of the witness.

III.

The same course was adopted by the Court in regard to another question put by Porter to the same witness. (P. 24.)

IV.

General McClellan, whose evidence was strongly in favor of Porter, was asked by one of the Court, and evidently with a view to impair its effect, whether his feelings towards General Pope were not unfriendly. The gross indelicacy of the inquiry, caused another member of the Court to object to it, and it was then withdrawn. Porter by his counsel protested against its withdrawal, because as it was apparent that the member of the Court propounding it, was under the impression that such feelings existed, it was Porter's right to have the truth of the imputation tested, and the right of the witness to be permitted to exhonorate himself from it. But the Court decided that it should not be answered, and neither the question, nor what occurred in relation to it, were permitted to appear in the Record.

V.

In the Reply, (p. 11,) it is said that the writer did not know what, if anything had been done, for Lieut Colonel Thomas C. H. Smith. He has since ascertained that he was appointed a Brigadier General, to date from the 29th of November, 1862. The Court was opened on the 25th of that month. On what day the appointment was made he is not informed, but it must have been after he gave this testimony against Porter, on the 11th of December, in the same year, as at that time he stated himself to be a Lieutenant Colonel, under a commission dated the 24th of August, 1861. As he admitted upon his examination that he had never been in any army before that date, and never received a military education, and never was in a battle prior to Pope's Virginia campaign, and there being nothing to show that he displayed there either scientific knowledge or conspicuous valor, it must be true that his promotion to the high rank of General was not a reward far gallant service in the field or distinguished military ability. But looking to the time when he gave his evidence in Porter's case, and the character of that evidence, and his conduct in publishing and circulating his testimony and Pope's, and Roberts' only, without any other part of the proof, it is left to the reader to decide for himself to what cause it is to be referred.

VI.

The Judge Advocate considers as immaterial the testimony of Porter's "former services and character for faithfulness and efficiency as an officer." although he admits it to be "FULL AND EARNEST," because such evidence, he says, is held to be entitled to little weight except in doubtful cases," and to no weight when it comes into conflict with evidence that is both positive and reliable."

That no such evidence as the latter was given against Porter the reader has seen in THE REPLY. He will also have seen that the case made against him by the

Government, in the view of an impartial and fair mind, was not even a doubtful one. It is due, however, to Porter, that it should be known how strong were the testimonials to his former "faithfulness and efficiency" by those who had known him longest and best.

1. Major General Burnside.—“I have never seen anything to lead me to think that he was anything but a ZEALOUS, FAITHFUL AND LOYAL OFFICER. (P. 181.)

2. General Reynolds.—“I have had opportunities to judge of General Porter's conduct, and I have always considered him AN ENERGETIC, FAITHFUL AND DEVOTED OFFICER." (P. 170.)

3. General Morell.-"I do not think that he ever failed to do his duty." (P. 149.)

4. General Sykes.-He was asked, did you ever see in Porter "any slackness to do his duty, any evidence of a disposition to fail his commanding officer or his country," and answered:

No; I never have. General Porter is an officer whose zeal is so well established that I hardly see the necessity of that question. I would like to add that General Porter's foresight, his providence for the wants of his command, and his attention to all the minutiae of his command, are such and so great that I have often thought that he relied or trusted too little to the capacity of his division commanders. He seemed to do everything himself. (P. 177.)

5. General Butterfield.—(Roberts had said that Major General Kearney had told him that Porter "would fail General Pope.") Butterfield was asked whether he had had conversations with Kearney in relation to Porter, and said, "frequently," and that he always spoke in the HIGHEST TERMS of General Porter, both as A BRAVE OFFICER AND A GENTLEMAN, AND AS A HARD WORKER." And Butterfield also stated for himself, that he never saw in anything that he did or said before, or when it was understood that he was to come under Pope's command, any evidence of an indisposition to be faithful to General Pope and to his country.

6. Major General McClellan, under whose immediate eye Porter was during his command of the Army of the Potomac, said, that from what he saw of his conduct, or from what he heard him say, after he knew that he was to go to the assistance of Pope, he did, in his opinion, "ALL THAT AN ENERGETIC AND ZEALOUS AND PATRIOTIC OFFICER COULD HAVE DONE," and that he never had any reason whatever at any time after he received notice that he was to go to Pope's aid, "TO BELIEVE THAT HE WOULD FAIL GENERAL POPE OR THE COUNTRY IN THE DISCHARGE OF HIS DUTY." (P. 196.)

VII.

The very material evidence on one point, of Colonel George D. Ruggles, was omitted in the Reply-it is here given:

He says, that he was in a room of the headquarters of General Pope, at Fairfax Court House, on the morning of the 2d of September, 1862, that Porter and Gene