by Richard B. Irwin, Lieutenant-Colonel and Assistant Adjutant-General, U. S. V.
Without going into the intricacies of allegation, evidence, and argument on one side or the other of this many-sided controversy, some account of the proceedings and conclusions of the military tribunals appointed for its investigation seems necessary.
These tribunals were four in number: First, a Court of Inquiry, ordered by the
President September 5th, 1862, and which met and was finally dissolved on the 15th, without taking any action; second, the Military Commission, convened November 17th, 1862; third, the
Court-martial, appointed November 25th, which sentenced
General Porter to be cashiered; fourth, the Board of Officers, appointed by
President Hayes, April 12th, 1878, and upon whose report, reversing the findings of the court-martial,
General Porter was finally reinstated in the service.
In his report of September 3d, 1862,
General Pope made certain representations unfavorable to
Generals Porter,
Franklin, and
Griffin.
On the 5th, by the same order that relieved
General Pope from command, the
President directed that
Generals Porter,
Franklin, and
Griffin “be relieved from their respective commands until the charges against them can be investigated by a court of inquiry.”
This order appears to have been suspended the next day at
General McClellan's request, and was never executed, all three of the generals named remaining on duty; but on the 5th of November, by the same order that removed
General McClellan from command of the Army of the Potomac, the
President again directed that
General Porter be relieved from command of the Fifth Corps; and this order, issued by
Halleck on the 10th, was put in force on the 12th.
The Court of Inquiry, appointed on the 5th of September, was ordered to inquire into the charges preferred by
General Pope against
Generals Franklin,
Porter, and
Griffin.
The detail consisted of
Major-General George Cadwalader,
Brigadier-Generals Silas Casey and
J. K. F. Mansfield, with
Colonel Joseph Holt as
Judge-Advocate, and this commission met on the 6th and 8th, adjourned and was dissolved without action,
General Mansfield being ordered into the field on the day last named, and
Generals Franklin,
Porter, and
Griffin being already there.
On the 17th of November a military commission was appointed by the
General-in-Chief to examine and report on charges preferred against
General Porter by
General Pope.
A military commission is a tribunal constituted to try civil cases when the functions of the ordinary courts of law are suspended by the state of war. Its authority rests entirely upon the supreme will of the commander.
Its jurisdiction is wholly outside the articles of war by which the army itself is exclusively governed.
When the soldier is arraigned before such a commission, it is for offenses for which, in time of peace, he would be tried by the civil authorities.
The proceeding first contemplated would therefore, at first sight, appear to have been of a character unusual in armies and altogether different from that afterward pursued; however, the distinction was not always strictly regarded during this war, purely military cases being more than once brought before a commission, sitting really as a court of inquiry, as in the
Harper's Ferry case, and in the investigation as to “the operations of the army under the command of
Major-General D. C. Buell, in
Kentucky and
Tennessee,” and punishment even inflicted, as in the former, without charges, or arraignment, and without other trial.
No charges preferred against
General Porter by
General Pope have been found, save in his official reports of September 3d, 1862, and January 27th, 1863; and
General Pope testified before the court-martial
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that he had in fact preferred none.
In his letter to
General Halleck of September 30th, 1862,
General Pope speaks of “having laid before the
Government the conduct of
McClellan,
Porter, and
Griffin,” and of being “not disposed to push the matter farther unless the silence of the
Government . . . and the restoration of these officers without trial to their commands, coupled with my banishment to a distant and unimportant department, render it necessary as an act of justice to myself.”
In his reply, October 10th,
Halleck says: “Again you complain that
Porter and
Griffin have not been tried on your charges against them.
You know that a court was ordered for their trial and that it was suspended because all officers were required in the field.
A new court has been ordered, and they are to be tried and the grounds of your charges to be fully investigated.”
On November 25th, 1862, the military commission, having simply met and adjourned, was dissolved and the court-martial appointed.
General Porter was now placed in arrest.
As finally constituted the court consisted of
Major-Generals David Hunter and
E. A. Hitchcock, and
Brigadier-Generals Rufus King,
B. M. Prentiss,
James B. Ricketts,
Silas Casey,
James A. Garfield,
N. B. Buford, and
J. P. Slough, with
Colonel Joseph Holt,
Judge-Advocate-General of the Army, as
Judge-Advocate.
The charges exhibited to the court were found to have been preferred by
Brigadier-General Benjamin S. Roberts,
Inspector-General on
General Pope's staff at the time of the occurrences.
The first charge, laid under the ninth article of war, alleged five instances of “disobedience of orders” ; the second charge, laid under the fifty-second article of war, contained four allegations covering two acts of misbehavior in the presence of the enemy on the 29th and 30th.
The court found the accused guilty of having disobeyed three of
General Pope's orders that of August 27th, to march on
Bristoe at 1 A. M.; the “joint order” on the morning of the 29th, to “move toward
Gainesville” ; and the order dated 4:30 that afternoon, “to push forward into action at once on the enemy's right flank” ; guilty, also, of having “shamefully disobeyed” the latter order, and of having retreated without any attempt to engage the enemy; but not guilty of having permitted
Griffin's and
Piatt's brigades to leave the battle-field and go to
Centreville.
The charge of having feebly attacked the enemy on the 30th was withdrawn.
In substance the charges on which
Porter was convicted were two,--that he disobeyed
General Pope's order to march at 1 A. M. on the 28th, and that, in disobedience of orders, he failed to attack, but retreated, on the 29th.
Upon the former we shall not dwell, since even upon the first trial it was shown that
Porter delayed only two hours, on account of the darkness of the night, that he marched at 3, that nothing turned upon his delay, that
McDowell,
Kearny, and
Reno, with less distance to cover, under orders substantially similar, were similarly delayed.
The vital point remains whether
Porter did or did not disobey his orders and fail in his duty by not attacking on the 29th, and by retreating.
The sentence of the court-martial delivered on the 10th of January, 1863, was that
General Porter “be cashiered and be forever disqualified from holding any office of trust or profit under the
Government of the
United States.”
On the 21st of January this sentence was approved by
President Lincoln.
During the next fifteen years
General Porter continually applied for a rehearing, in the light of evidence newly discovered or not available at the time of his trial.
On the 12th of April, 1878,
President Hayes appointed a board of officers, consisting of
Major-General John M. Schofield,
Brigadier-General Alfred H. Terry, and
Colonel George W. Getty, to examine the new evidence in connection with the old.
The new evidence consisted largely of the testimony and the official reports of the
Confederate officers serving in the Army of Northern Virginia at the
second battle of Bull Run, supplemented by new and accurate maps.of the field of battle.
None of this information, from the nature of the case, was, or could have been, before the courtmartial.
By it, if established, an entirely new light was thrown upon the circumstances as they existed in
Porter's front on the 29th of August.
General Pope's orders of the 29th, which
Porter was charged with disobeying, were as follows, the first, known as the “joint order,” having reached him about or shortly after noon:
Generals McDowell and Porter: You will please move forward with your joint commands toward Gainesville.
I sent General Porter written orders to that effect an hour and a half ago. Heintzelman, Sigel, and Reno are moving on the Warrenton turnpike, and must now be not far from Gainesville.1 I desire that as soon as communication is established between this force and your own, the whole command shall halt.
It may be necessary to fall back behind Bull Run at Centreville to-night.
I presume it will be so, on account of our supplies.
If any considerable advantages are to be gained by departing from this order it will not be strictly carried out. One thing must be had in view, that the troops must occupy a position from which they can reach Bull Run to-night or by morning.
The indications are that the whole force of the enemy is moving in this direction at a pace that will bring them here by tomorrow night or the next day.
General McDowell almost immediately withdrew
King's division, marched it round in the rear by the
Sudley Springs road, did not connect or again communicate with
Porter during the day, and only brought
King's division into action, on the right, at 6:15 P. M.
Porter's right was not in connection or communication with
Reynolds, who held the left of the main line.
Between them was a very wide gap, hidden
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by a wood through which
Generals McDowell and
Porter were unable to pass on horseback, and in which messengers sent by
Porter to communicate with
McDowell and others were captured by the enemy.
The second order did not reach
General Porter till 6:30 P. M., and before the dispositions immediately ordered to execute it could be completed, darkness interposed.
It read:
Your line of march brings you in on the enemy's right flank.
I desire you to push forward into action at one, on the enemy's flank and, if possible, on his rear, keeping your right in communication with
General Reynolds.
The enemy is massed in the woods in front of us, but can be shelled out as soon as you engage their flank.
Keep heavy reserves and use your batteries, keeping well closed to your right all the time.
In case you are obliged to fall back, do so to your right and rear, so as to keep you in close communication with the right wing.
Both orders are based upon the supposition that the enemy was
Jackson; that
Longstreet was not there, and would not arrive till the night of the 30th or the 31st, and that
Jackson was to be attacked in front and flank or rear and crushed before
Longstreet joined him.
When
McDowell came upon the rear of
Porter's troops near Bethlehem Church he had just received
Buford's dispatch of 9:30 A. M. forwarded by
Ricketts at 11:30 A. M.
2 This told of
Longstreet's passage through
Gainesville before 9: 30; it reached
McDowell after 11:30. When
McDowell joined
Porter he found him at the head of his troops, advancing; therefore, when
Porter arrived on the crest of the hills which descend to
Dawkin's Branch, his advance encountered
Longstreet's, already in occupation of the opposite slope.
The board of officers say in their report:
General Porter's-conduct was adjudged [by the court-martial] upon the assumption that not more than one division under Longstreet had arrived on the field, and that Porter had no considerable force in his front.
The fact is that Longstreet, with four divisions of 25,0003 men, was there on the field before Porter arrived with his two divisions of 9000 men; that the Confederate general-in-chief was there in person at least two or three hours before the commander of the Army of Virginia himself arrived on the field, and that Porter with his two divisions saved the Army of Virginia that day from the disaster naturally due to the enemy's earlier preparations for battle.
If the 4: 30 order had been promptly delivered a very grave responsibility would have devolved upon General Porter.
The order was based upon conditions which were essentially erroneous and upon expectations which could not possibly be realized ...
What General Porter actually did do . . . now seems to have been only the simple necessary action which an intelligent soldier had no choice but to take.
It is not possible that any court-martial could have condemned such conduct if it had been correctly understood.
On the contrary, that conduct was obedient, subordinate, faithful, and judicious.
It saved the Union army from disaster on the 29th of August.
The board accordingly recommended to
President Hayes to set aside the findings and sentence of the court-martial and to restore
Porter to his rank in the service from the date of his dismissal.
In the absence of legislation,
President Hayes considered himself as without power to act, and on the 5th of June, 1879, he submitted the proceedings and conclusions of the board for the action of Congress.
On the 4th of May, 1882,
President Arthur, by letters patent, remitted so much of the sentence of the court as had not been fully executed, and thus relieved
General Porter from the continuing disqualification to hold office.
On the 1st of July, 1886,
President Cleveland approved an act “for the relief of
Fitz John.
Porter” which had been passed in the House of Representatives on the 18th of February by a vote of 171 to 113, and in the Senate on the 25th of June by a vote of 30 to 17.
In accordance with the provisions of this act, on the 5th of August
Porter was once more commissioned as colonel of infantry in the army of the United States, to rank from May 14th, 1861, but without back pay; and on August 7th he was placed on the retired list.
