familiar rule in cases, amongst others, of acts of alleged bankruptcy or insolvency, of change of residence, and of many acts of alleged fraud.
In the first, whether the act charged as an act of bankruptcy is one or not, often depends on the intent with which it is done; and what the party did before or after, is constantly admitted as legitimately illustrating the actual intent.
In the second, whether a man has changed his residence often, also depends on intent. He may have removed, to remain permanently or temporarily; and what he has done or said before and after removing, is allowed to prove or disprove intent.
In the third, whether the imputed fraud was perpetrated or not, often depends on intent. Unexplained, the mere act itself may appear criminal or innocent. It is the purpose which gives it its actual character, and this purpose may be shown by either party-by acts and declarations of the person charged before and after the period of the impeached act. This principle, I am advised, is fully settled, not only in all the elementary writers on evidence, but by the Supreme Court of the United States in, amongst other cases, that of Wood vs. United States (16 Peters,362).
And it is respectfully hoped that the court will, on further consideration see the justice of the rule. Its justice is strikingly illustrated in this instance: The accused is charged with the dishonorable, traitorous purpose of having disregarded the orders of his chief, to gratify some supposed personal dissatisfaction with him, wholly reckless of its consequences to his country. He is charged with having caused the defeat of our arms, and hazarded the safety of the capital, under the same degrading impulse. One of the witnesses has sworn, without objection from the judge-advocate or the court, that a deceased officer, of chivalrous character and spotless patriotism, had declared to him, before the date of either of the orders, that the accused would fail his chief. Another has stated, also without objection, that his conduct and manner in his presence were such that he was satisfied that he was a traitor, and that nothing but the fear of human laws prevented his killing the accused on the spot. This evidence was offered and received to show his animus-his intent. Proudly conscious of his innocence, and knowing the baseness of the calumny, he did not object to its introduction, being perfectly willing to let it all go for what it is worth. But to deny him the right after it is received by the court, to meet it by proving what is wholly inconsistent with it - acts of duty about the same period, orders, and messages, having up no possible purpose but a faithful discharge of duty to his chief and his country - it is submitted is a violation of the rule of evidence, and is to deprive him of the very best and most persuasive proof that the nature of the accusation admits of.
To show that he was not a traitor, he desired to establish constant acts of duty immediately preceding and succeeding the acts which he is charged to have done traitorously. To show faithfulness to duty to his chief, he desires to prove, as the rejected evidence does, that to get to his command, and after he reached it, he did everything that diligence, zeal, ardor, and all the skill and ability which he possessed enabled him to do to assist his chief in every possible way and at every possible hazard, so as to render his campaign a successful one.
Your ruling puts this out of his power, and, respectfully protesting against it, he can do nothing further than to submit it to your more mature consideration.
F. J. PORTER,