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CONGRESS, UNITED STATES. (THE Fixz-JonN POETEE CASE.) 



imperfect method for the administration of 

 justice. Their rules of evidence are not those 

 which prevail in common-law tribunals. They 

 have no jury. The prosecution selects the 

 court. The action is had hastily, and when 

 the act is done there is an end. 



" But I do not either criticise that arrange- 

 ment or mention it as affording any reason 

 whatever for failing to pay the same respect 

 to the conclusions of this court as if they were 

 the conclusions of the Supreme Court of the 

 United States, or of a Circuit Court where a 

 jury had been empaneled. The experience 

 and wisdom of civilized nations have been un- 

 able to devise any better system than this for 

 the trial of military or naval offenses. The 

 soldier who goes into battle, who takes his life 

 in his hand, who exposes his health and life, 

 who abandons all the ordinary occupations ot 

 life, exposes himself also, for the public good, 

 and as a public necessity, to having his rights, 

 his conduct, his life affected by tribunals of this 

 class. They are the best, and no soldier has a 

 right to complain. 



" But it is also true that the pardoning power, 

 as I believe, for the sentences of such courts is 

 properly lodged in the President of the United 

 States ; and it is also true that Congress has 

 the undoubted clear constitutional right, if it 

 conceive any injustice has been done, to permit 

 the restoration to the army or navy of an offi- 

 cer whom a court-martial has caused to be dis- 

 missed. Since I have been in the Senate, nu- 

 merous cases have arisen where officers cash- 

 iered for drunkenness have been restored, by 

 permission of an act of Congress, to their for- 

 mer rank in the army or navy, Congress act- 

 ing, if not with absolute unanimity, by large 

 and emphatic majorities. 



"Now, what are we asked to do? We are 

 not asked now to reverse the judgment of this 

 court-martial. We are not asked to give or 

 provide for a new trial, as we were asked two 

 or three years ago. In my own judgment that 

 can not lawfully be done, even by the consent 

 and on the motion of the accused himself. 

 Gen. Porter is out of the army, and I do not 

 think, even by his consent, we could provide 

 for a retrial of this cause. If we could, the 

 tribunal retrying it might now sentence him to 

 be shot a man in time of peace, a man not 

 belonging to army or navy, without a trial by 

 jury or right of appeal to the higher courts. 



" But the last Chief Magistrate of the United 

 States, Mr. Hayes, being of opinion that by the 

 access to Confederate testimony one half of the 

 case previously unknown might be disclosed, 

 summoned, for his advice and to his assistance, 

 a board composed of high and intelligent army 

 officers. As has been well said, that board was 

 not a lawful board in the sense of having power 

 to administer oaths or to render a binding judg- 

 ment ; but it was the only course open to the 

 President of the United States to have these 

 facts investigated by some competent authority, 

 for his information and for ours. That board 



made its report, and upon that report the pres- 

 ent President of the United States, Mr. Arthur, 

 has pardoned the offense. 



" I do not agree with those Senators who 

 think it is a condemnation of, much less an 

 insult to, the memory of President Lincoln 

 or to the memory of President Garfield, a 

 member of the original court, or anybody else, 

 to grant this officer the relief which is asked. 

 Was it ever heard before that the Executive, 

 in issuing a pardon, especially a pardon on 

 newly-discovered evidence, insulted the court 

 or jury who found the original verdict or passed 

 the original sentence? Is every new trial grant- 

 ed by a court with a different verdict an insult 

 to the original court, especially when it is upon 

 newly-discovered evidence? Suppose Presi- 

 dent Lincoln should have disapproved the find- 

 ing of the original tribunal, as he did of many 

 a court-martial. I have yet to learn that a dif- 

 ference in judgment, not on the same facts but 

 on the same facts taken with others, is any re- 

 proach to the person with whom you so differ. 



" The present head of the army, as I have 

 said, under his official executive responsibility, 

 has thought fit to pardon this officer and to re- 

 mit what remains of the sentence, and that is 

 the only action which in the least modifies or 

 trenches upon, or can modify or trench upon, 

 the act of the original court- martial. 



" Now it is asked, giving such weight as we 

 choose to the action of the President, giving 

 such weight as we choose to the newly-adduced 

 evidence, giving such weight as we choose to 

 the opinion of the head of the army at the close 

 of the rebellion and the executive head of the 

 army for eight years after the rebellion ended, 

 that we shall pass an act which simply permits 

 hereafter the President and the Senate, if they 

 see fit, to restore this man to the army so far 

 as that he may be placed upon the retired list, 

 at the discretion of the President. In other 

 words, this present bill does not deal with the 

 question of the guilt or innocence of Fitz-Jolm 

 Porter in terms and technicality ; it only author- 

 izes the President of the United States here- 

 after, with the advice and consent of the Sen- 

 ate, to treat him as a person eligible to the 

 office which he formerly held, under the par- 

 ticular circumstances. 



" Is there sufficient reason for such action ? 

 I do not, of course if I were capable, I should 

 not at this time undertake to go over the evi- 

 dence in detail ; but this thing is true, as it 

 seems to me : Gen. Porter was condemned by 

 that court-martial in ignorance of such facts 

 in regard to the military situation of the 28th 

 and 29th of August, 1862, as could be learned 

 from the reports and testimony of men who 

 were opposed to him in those days. 



" In the judgment of these high military au- 

 thorities, including the President of the United 

 States charged with his official responsibility, 

 that newly-disclosed evidence makes a new case. 

 I am not now speaking of the 6.30 order of 

 the afternoon of the 27th, but of the charge of 





