War of the Rebellion: Serial 119 Page 0270 PRISONERS OF WAR AND STATE, ETC.

Search Civil War Official Records

[Inclosure Numbers 1.]

MILITARY COURT, MAURY'S CORPS,

Mobile, Ala., August 22, 1863.

Lieutenant Colonel G. G. GARNER, Chief of Staff, Mobile, Ala.:

COLONEL: I respectfully report as follows in relation to the case of General Neal Dow:

Upon the receipt of the communication of V. Reand, lieutenant, C. S. Army, to the Secretary of War, referred to this court under order of the President, I immediately applied through you to Richmond for a copy of the joint resolutions of Congress, approved May 1, 1863, a copy not having been previously furnished the court. After receiving the resolutions with as little delay as possible I saw Lieutenant Reand and the gentlemen mentioned in his communication (Messrs Burthe, La Barre and Le Breton), and after a full interview procured from them statements of all facts in the personal knowledge of each, bearing on the conduct of General Dow, copies of which are forwarded herewith. I also saw Messrs. Thomas B. and Henry P. Smith and Mr. Charles O. Drake, whose statements in regard to occurrences at Pensacola, Fla., are also inclosed.

It will be observed that the dates of the occurrences known by Lieutenant Reand, Messrs. Smith and Drake are all anterior to that of the resolutions. Messrs. Burthe, La Barre and Le Breton know nothing except the fact of Dow being in command at Camp Parapet, near New Orleans, which in the absence of proof of other facts, of course, amounts to nothing. The time of this command at Camp Parapet, though not stated, was, I believe, February and May, 1863.

The joint resolutions approved May 1, 1863, in the opinion of the individual members of the court, were not intended to have a retroactive effect as to cases under sections 4 and 5, and do not embrace such cases occurring previously to May 1, 1863. The terms used in these sections are, 'shall command," shall arm," &c., 'shall during the present war excite," &c. This would seem to idly an intention to confine the operations of these sections to acts subsequent to the passage of the resolution and to conform to the constitutional provision and rule of criminal jurisprudence that "no ex post facto law shall be passed. " This view is sustained by the circumstance that in section 3, authorizing the President to retaliate for violations of the usages of war, the terms provide a remedy or appoint a forum for violations of a previous law, but create a new offense. The individual members of the court are therefore of the opinion that to sustain a charge before this court under sections 4 and 5 facts of a date latter than May 1, 1863, should be proved. Under these circumstances I have thought it proper to make this report and ask for instructions.

Very respectfully, your obedient servant,

E. J. FITZPATRICK,

Judge-Advocate.

[Inclosure Numbers 2.]

I know that General Neal Dow was generally understood to be in command at Pensacola a few days before the time of its evacuation by the U. S. forces, and for some time before; that every one who went about the wharves or any of the places of business of the troops was required to have a pass from him; that I had a pass myself which I saw him sign in person, as the officer commanding there; that there