The accused then submitted the following paper as the basis of objection to the court proceeding further in the case:
WASHINGTON, D. C., December 3, 1862.
There is a question of form, possibly involving important matter of law, to which I now, upon my own reflection and the advice of my counsel, deem it proper respectfully to ask the consideration of the court.
The charge and specifications furnished to me are signed by B. S. Roberts, brigadier-general of volunteers and inspector-general of Pope's army. The order convening a military commission in my case recited that the subject-matter of its investigation was charges preferred against me by Major General John Pope.
I desire to e informed whether, under these circumstances, the before this court, signed, as above stated, by an officer of General Pope's staff, whose official character as such appears as part of his signature, be or be not, in the judgment of the court, in contemplation of law, charges preferred by Major-General Pope, or by his order, so as to make the presentation of them his act.
Should the court hold this to be the legal fact, then, as the court is aware, the order convening this to be the legal fact, then, as the court is aware, the order convening this court is not legal, in view of the provision of the statute of 1830, which requires the court, in such a case, to be convened by the President of the Unite States, and not, as this court is convened, by order of the General-in-Chief.
The determination of this question now may prevent embarrassment and delay hereafter, and in that view solely I now present it, and not with the slightest purpose of taking any exception to any member of the court.
F. J. PORTER,
The JUDGE-ADVOCATE. The accused refers to the order appointing a military commission, in which it was recited that it was to try charges preferred by Major-General Pope. In point of fact, no charges ever were preferred by him. That commission was dissolved, and this general court-martial appointed, by virtue of this order:
SPECIAL ORDERS, HEADQUARTERS OF THE ARMY,
Washington, November 25, 1862.
* * * * *
The military commission ordered to assemble on the 20th instant, by Special Orders, Numbers 350, November 17, 1862, from Headquarters of the Army, is hereby dissolved, and a general court-martial is hereby appointed, to meet in this city on the 27th instant, or as soon thereafter as practicable, for the trial of Major General Fitz John Porter, U. S. Volunteers.
There is no reference to the charges, or by whom they are preferred, in the order appointing this court.
The ACCUSED. The question raised by the paper just read by the accused is that, perhaps, in point of legal effect these charges, although signed by Brigadier-General Roberts, as inspector-general of Pope's army, are to be considered as charges preferred by General Pope himself. We desire to have that question disposed of.
The JUDGE-ADVOCATE. There is no reference in the order appointing this court to General Pope at all. I wish to state distinctly that Major-General Pope is not the prosecutor in this case, nor has he preferred these charges, nor do I present them as being preferred by him.
The room was then cleared, and the court proceeded to deliberate with closed doors.
After some time the doors were reopened.
The judge-advocate stated the decision of the court to be as follows:
The court determine that they will overrule the objection; that the court is properly organized, and that the accused shall plead to the charges and specifications.