Fitz-John Porter’s Restoration to the Army
In August, 1886, after the passage of a bill by Congress, General Fitz-John Porter was restored to the army, as colonel, by President Cleveland. When I was in the War Department in 1868, General Porter had come to me with a request that I would present his case to the President, and recommend that he be given a rehearing. I declined to do so, on the ground that, in my opinion, an impartial investigation and disposition of his case, whatever were its merits, could not be made until the passions and prejudices begotten by the war had subsided much further than they had done at that time. In the course of conversation I told him that while I never permitted myself to form an opinion of any case without much more knowledge of it than I had of his, I presumed, from the finding of the court-martial, that he had at least been guilty of acting upon what he supposed to be his own better judgment under the circumstances he found to exist, instead of in strict obedience to General Pope’s orders. He said that was not the case; that he had not even literally disobeyed orders; that in so far as he had acted upon his own judgment, he had loyally done all that could be done to carry out General Pope’s wishes; and that all he wanted was an opportunity to prove such to be the facts. I replied that if he could prove what he stated beyond question, he would of course have a case worthy of consideration—not otherwise. Nothing was said in respect to the facts or the evidence in contravention of the judgment of the court-martial which tried him. Hence, beyond that above stated, I had no knowledge of his case when the board of review, of which I was president, met in 1878 to hear the new evidence; and I believe neither of the other members of the board —Generals A. H. Terry and George W. Getty—was any better informed.
The duty of the board was very different from that of a court-martial appointed to try an original case. The accused had already been tried and convicted. He was not to have a new trial. He could not have any benefit whatever of any doubt that might exist after all the evidence, old and new, had been fully considered. He must prove his innocence positively, by absolutely convincing evidence, or else the original judgment of the court-martial must stand. This view of the issue was fully accepted by General Porter and his counsel. This caused a new and peculiar duty to devolve upon the board—at least it was so to me; that is, to find, if possible, some view of all the evidence, or of all the facts established by the evidence, that could be regarded as consistent with the theory or supposition that Porter was guilty.
When the evidence was all in, the members of the board separated for several weeks to let each examine all the evidence and reach his own conclusion, to be presented in form at the next meeting of the board. I believe I devoted more earnest work to the examination and analysis than I had ever done to any one thing before in my life. I tried in succession every possible explanation of the established facts, in the effort to find some one consistent with the theory that Porter had been guilty of disobedience, as charged, or of any other military offense. But I could not find one, except the very patent one that he had sent despatches to Burnside which were by no means respectful to Pope; and the board expressed an opinion in condemnation of that, which Porter’s counsel very frankly admitted to be just.
In the course of that long and earnest effort to find Porter guilty, —for that is what the effort was in effect,—the whole story of his conduct and of the operations of the two opposing armies and the actions of other prominent officers became so clear, and his honorable and soldierly conduct so absolutely demonstrated, that it was exceedingly difficult, in view of all the wrong he had suffered, to write a cold judicial statement of the facts. The first draft was toned down in many particulars in the effort to bring it within the strictest rules of judicial decisions. I have sometimes thought since that if the report of the board could have been much colder, it might have been better at first for Porter, though less just. But I do not think he or any of his companions and friends will ever feel like finding fault because the board could not entirely suppress the feelings produced by their discovery of the magnitude of the wrong that had been done to a gallant fellow-soldier.