The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1875-02-06
FITZ JOHN PORTER.
The Old, Old Case Up Once
More.
CHARLES O'CONOR'S OPINION
The Appeal Of tho Accused 10 His Excel
lency General Grant.
NEW PROOFS OF INNOCENCE OFFERED.

It's now more than thirteen years since Httz
John Porter brave federal soldier. was. on clearly
inadequate evidence and for purely political pur.
poses, convicted Of an Infamous professional
crime, and had In ioted on him not only the sharp
penalty Of dismissal but the continuing sentence
OF perpetual disqualification for any trust civil or
military. under the United States. It Is getting to
to an old story now, but It Will never lose interest
80 long as ne lives, for him. and afterward for his
children and for such as honestly study the record
OF the past and seek 10 gain historic ruth.
II Is In connection with this case that
the HERALD prints below document Of
unusual and commanding interest, the ex.
naustive almost Judicial, opinion Of Charles
O'Color given to General Porter and his
friends. as recently as last October, and never
before In print. It Is very calm In temper. able
and, as we have said. exhaustive. It does not
sound ike professional opinion given for o fee
on an sI parts brief which Il certainly Is not, bur
Q solemn judgments uttered under judicial respon-
sibilisy and on thorough study OF tie complete
record. AS such IT Is needless TO commend 1t to
the close attention .ot our readers. copy has,
we believe, been communicated to the President,
whose time just now, We lear. is otherwise en-
crossed. He has reversed the Judgments on de-
faulting paymasters, and recently on a counter
feiter Of the coin Of the realm. We trust he VIII
ind moment to do Justice to brother soldier.
OPINION OF MR.. ocoNoR.
am convinced that new trial ought to be had
IN the case OIL Fltz Jonn Porter. There Is ade.
qualc evidence or the misconduct alleged, and the
record leaves It very doubtful whether any opinion
regarded as onnciaily authoritative.
| l.. Nine officers constituted The court martial,
quite liable 10 be called a. witnesses. and. there
lore not the most eiglole Judges, such at the
s the po that no
Dssn 'e is . %sH a 1ss
the prosecutor found II necessary to cali one Of
them to the stand. His testimony contradlcted
the accused unless, indeed. ne Was himself d,s.
cIedlted py the trIbpnai Of which he !ormed 2
ana for aushs na appears his single VOTE ma;
have produced the conviction. II such was the
the iGvs %ou ~ y the
any, persuasive force as an onlctal Judgment. The
RTasr,se o. review which y almost universal IN
Of courts TO disturbing causes oil this nature. APP
pelate tribunals are rarely composed OF members
instance, and tncir consideration OF the points in
issue must generally take place under conditions
tics Tor ile ascertainment OF truth vel the heat
naturally attendant upon the tnciptent contention
IN al! Imporsap. eases thought 20 render need
ate review Nv soma independents authority.
Another circumstance considerably oimnishes
| the influence which might otherwise be accorded
| 10 this verdicS. The accused was In the prime OF
life and IN perfect ncalth. lie was admitted to be
loyal to his party In the war, emihently skiiiul
nrmness. the principal charge against him was
the army was engaged. he Jailed to move his corps
| against the enemy and BY such omission violated
ceipt Of the order by the accused and the
proximity OF the enemy Immediately IN
s S! 81 bis s1rs Ga ns r.se i him IN
was The only defence against this charge which
can De supposed to have been tried and overrulei.
No Que could question ttS suo1ciency II true; but
toe Court discredlted It and found him guilty.
Nothing in the wa. OF excuse or extenuation was
any ning like dulness or slowness OF apprenen.
sion on his part, or mat any circumstance existed
Of assq e
eence. No mistake or MISREPRESENTATION by hum
was even limited at. The precise lnputation made
by the tncupatory witnesses was that from de-
sire to permit the enemy's success. IN order
thereby 10 discrcdt his commanding general, the
order TO give battle. Nothing can be palmer than
that sucn was the precise quality Of his offence
offence was committed. crime more atrocious
cannot be imagined nor = any less punishment
Justly 81 the
but 10 court martial. consistently with proper
application Of the law or on any known principle
| OF non0r, could award any other. Inc SEN
eni p.rDstua n' cm paDc serV H.
a om as
peculiar feature OF tho case . tacit ackno wledg.
shsy sner own Hiding on the Question ton
| OF guilt or innocence.
me Exscu an Snief OF great state can rarely
necessary to ihrlst this class Of duties 70 suSor.
dlnaLes In this instance the pressure OF una
| voidaDle public business compelled a resort 10
that course. And. In approving the sentence, the
view Of the PROCEEDINGS furnished for his use and
81 hts request by he Judge Advocate General
not s Or
| perused the record to an! useful extent. Conse-
euenty the approval by tnat nigh ollcer Is With;
opinion. II was merely formal
| No other person standing aloof from the court
| the proceedings to that Independent revision
which could alone afford to the sentence the
Tss iuy appears y tie record
| 1t Was proved on the trial that the &C.
Ssd n ns oat
placed before the military authorities Of the gov
eminent. the campaign, 0f which tho 1eld day In
trial. and is throughout had been V ne
/ garded It as disastrous. Otners on the contrary,
Entertained conviction that 1t was not only con-
scs Mn na SsSh had Dus a
cessiul. (Rec., D. 3l6.) One OF this latter class
Of SrsaS aSy IN the Legal
he prosecuted General Porter on the charges IN
| QucbtiUuy euus IN ~ uOAuxs Wu1 Aoeouoiy OPpOSeu
during an intellectual combat OF torty uuys by
counsel OF the highest eminence All Experience
has shown that the most liberal minds ind 1t difi-
cult TO preserve strict impartiality throughout
such service; yet In the case under considcra-
ton, the Judge Advocate and tue on1cer VINO
| prepared the written review which formed the
! Presiaent's sole guide In deciding whether ne
should approve or reverse the sentence were one
! and the same person. 1t may, indeed, be contem-
cool dcliperation requisite to q Just and
useful review existed IN this instance; but
there IS no proof OF the TACT, and all reasonable
Is have called 1t, 0y Its very structure and by Its
phraseoi0gy IA many parts, appears to have been
have been written Tor the purpose OF being read
| or addressed 10 she Court as an argument against
the accused.
. The uncertainty whether q majority Of members
morally competent to vote In the court martial
| co0curred IN the sentence. ana the total absence
OF anything which can Justly be regarded as an
ofiicial revision ana confirmation would alone
| form, IN my Judgment, under the peculiar circum-