CONGRESS, UNITED STATES. (THE FITZ-JOHN POETEK CASE.) 



241 



because the yellow fever was so bad ; if I had 

 gone there I would have died.' 



" Within a few weeks the Secretary of the 

 Navy ordered the trial by court-martial of a 

 naval officer for leaving his post during the 

 prevalence of yellow fever. The court sen- 

 tenced him to be dismissed the service, and the 

 President approved the sentence. Is he to be 

 restored on this principle ? Why not, if Por- 

 ter is ? 



" Fitz-John Porter says, in substance : ' If I 

 had gone in there they would have eaten me 

 up ; they would have whipped me ; I would 

 have been killed, and many of my troops, and 

 therefore I did not go.' Is not the other equally 

 as good an excuse ? Suppose you send an army 

 down on the frontier. They undertake to cross 

 the river and go into our sister republic on ac- 

 count of war. An officer says : ' I can not cross 

 that river, because the enemy has over there 

 25,000 men; I am not able to contend with 

 those 25,000; therefore I can not cross the 

 river; if I do I shall be whipped.' Suppose 

 Gen. Zachary Taylor, with his 6,000 men at 

 the battle of Buena Vista, when 20,000 Mexi- 

 can soldiers, armed and equipped, appeared on 

 the hill-side to assault him suppose he had 

 said, ' I can not fight them ; they are too strong 

 a force'? 



" But Zachary Taylor fought them with 6,000 

 men, and he whipped them. So with Scott, 

 when the city of Mexico surrendered to him, 

 with the few troops that he had there that 

 morning. One or two Senators who are here 

 present now were there that morning and know 

 that that surrender was made to Scott when 

 he only had a handful of men present. We 

 might go on through history from time out of 

 mind almost to the present day and show that 

 if this had been an excuse wars would not have 

 amounted to anything, but, as once said, would 

 have been a 'failure.' 



" Mr. President, I have a summing up of this 

 evidence and much more evidence that I have 

 already prepared which I want to put into my 

 remarks bearing on these points, but I will not 

 take the time of the Senate to read it. I am 

 not strong enough to-day after being so unwell 

 as I was last night to continue much longer ; 

 hence I shall pass by this portion of my re- 

 marks and incorporate the summary in the 

 'Record,' if there is no objection to it. 



" In conclusion, I want to ask Senators on 

 both sides of this chamber, and I want some 

 one to tell me, why it is that when this case 

 comes up it seems to be decided on political 

 grounds. What is there in this case of poli- 

 tics ? It is a mere question as to whether this 

 man was properly convicted or improperly 

 convicted. It is not a question that politics 

 should enter into at all. It is the case of a man 

 who was convicted during the war, while a 

 great many of you gentlemen were down South 

 organizing your courts-martial and trying your 

 own officers if they misbehaved. You tried 

 them according to the laws which you consid- 

 VOL. xxin. 16 A 



ered ruled and governed your army at that 

 time. We tried ours on our side according to 

 the rules which governed our army at that 

 time and govern it now. 



u Is it possible that history is going to record 

 the fact that with this man as guilty as he was 

 of violating the orders sent to him, each and 

 every one, upon which he was convicted, that 

 our friends, because they differ with us in poli- 

 tics, because this man is of the politics they 

 are, are going to decide without reference to 

 the facts or without reference to the law that 

 the judgment of this court-martial should be 

 reconsidered, set aside, and this man put back 

 in the army? There is no other ground on 

 which you can do it. It is a prejudice against 

 the court, against the parties at the time, and 

 nothing else. I hope that does not exist; I 

 hope that will not exist any longer ; it should 

 not. 



" I do not think it comes with the best grace 

 for men who tried their own disobedient offi- 

 cers in their own way to use their power and 

 influence to restore officers whom we dismissed 

 from our service in the army in order to dis- 

 grace the courts which convicted them and the 

 President who signed the warrants. I do not 

 think it is policy for men to come here and 

 undertake to reverse that which was done ac- 

 cording to fact and according to law. Let 

 those men who were derelict in duty on our 

 side, whom we dealt with, go. They are of 

 no service to you and none to us. They are 

 of no more service to the country. They may 

 serve themselves, but no one else. 



" I should like to know the difference be- 

 tween restoring this man to the army to-day 

 and restoring any other man in the United 

 States. If you were asked to restore some 

 men it would cause a good deal of feeling per- 

 haps, because they were dismissed from the 

 service peremptorily. This man was dismissed 

 from the service lawfully and properly. More 

 than that, the precedent which you establish in 

 opening courts-martial after twenty years is a 

 very dangerous one. It is a bad precedent, 

 one that will live to trouble those who estab- 

 lish it. 



" Some say, Why not restore this man on the 

 ground of mercy? Mercy does not apply to 

 this case. Mercy applies to that which has 

 been done, that is, to the pardoning of this 

 man and relieving him from the sentence 

 which was inflicted upon him which prevented 

 him from holding an office. That has been 

 done as an act of mercy. This is not an act ot 

 mercy. This is an act declaring the law differ- 

 ent from what it is, declaring the evidence dif- 

 ferent from what it was, and declaring the 

 court finding and the law and the evidence 

 wrong. It is an act and declaration on the 

 part of the Congress of the United States as a 

 court reversing the decision of a former court. 



" Mr. President, I protest most seriously 

 against the establishment of this precedent. I 

 protest most earnestly against the establish- 



