No. 5.* 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 reflections and that advice of my counsel, deem it proper respectfully to ask the consideration of the court.
The charges 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 be informed whether under these circumstances, the charges 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 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 United 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 witness having, in his examination-in-chief, attributed the disasters of the army under his command in Virginia, in August last, to the failure of the accused to obey all or some of his orders, and having stated that he was of the opinion that such orders might have been obeyed, and it being, so far as the prosecution has gone, upon his evidence that such disobedience occurred that the prosecution has endeavored to be maintained, the accused is advised by his counsel that the question just ruled out by the court is not only relevant and legal, but most material, in order to show that the recollection of the witness in such his examination-in-chief is not to be relied upon, and that he for the first time afterward the alleged disobedience upon the accused, because it was the duty of the witness not only not to doubt whether he would take any action in relation to the matter, but to report the same as a grave offense on the part of the accused; and his determination or doubt whether he would take such action and make such report are facts not only admissible, but material evidence that at the time to which the question relates he did not believe there had been any such disobedience on the part of the accused; and, therefore, respectfully requests to have this protest entered on the proceedings of the court against the exclusion of the question referred to.
F. J. PORTER,
*No. 4, being copy of charges and specifications printed on pp.
824-827, is here omitted.