The Case of Fitz John Porter
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 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 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. f the court-martial delivered on the 10th of January, 1863, was that General Porter "be cashiered and be forever disqualified from bolding 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 court-martial. 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 afternoon:

"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 nut far from Gainesville..* 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 ont. One thing mew. 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 to- morrow 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

* The orders to Generals Heintselman, Reno, and Sigel at the same hour (not produced before the court or board) were : "If you find yourselves heavily pressed by superior numbers or the enemy, you will not push matters further. Fitz John Porter and King's division of McDowell's corps are moving on Gainesville from Manassas Junction. and will come in on your left. They have about twenty thousand men. The command must return to this place [Centreville] to-night or by morning on account of subsistence and forage."

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:

"AUGUST 29th. 1862 --- 4:30 P. M.

"MAJOR-GENERAL PORTER:

"Your line of march brings you in on the army's right flank. I desire you to push forward into action at once 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 mar, 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. * 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 25,000 ** 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.
        In 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 11 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.

* Rickets's dispatch was not produced in evidence. It strongly confirms Surgeon R. O. Abbott's statement that it was "between, 12 and 1 o'clock. toward 1." when he delivered one copy of the "joint order" to Porter. after delivering the other to General McDowell.--- R. B. I.

** According to Col. Marshall of Gen. Lee's staff, 30,000.

Source: Battles and Leaders of the Civil War.

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