Glass _ Book- -IIT! X* PROCEEDINGS .1 GEXEBM COURT MJ1RTML, HELD AT FORT INDEPENDENCE, (BOSTON HARBOR.^ FOR THE Of MAJOR CHARLES K. GARDNER. OF TKZ THIJlt) nFeiMEJfT IKTANTHT. UPON CHARGES OF MISBEHAYIOR, COWARDICE IN THE FACE OF THE ENEMY.&c. PREFERRED AGAINST HIM BY MAJOR GENERAL B1PLET. PRINTED.. ..18iC '- ■' PROCEEDINGS OF A GENERAL COl^RT MARTIAL, fti't.I) AT FORT INDEPENDENCE, IIARBOlt OF BOSTON, KY VIRTUE OF THE FOLLOWING ORDER. « fiend Quarters, Castle island* c 26ih September, I8in. « GENERAL ORDER. w eneral Court Martial will convene at Fort fndepeu "nee, on Wednesday, the 4th of October next, for the trial of major Charles IC Gardner, of the third regiment of Infantry. All the field officers present in the department, with sufficient captains to make the number of nine officers, will form the Court. Colonel M'NElL, President* MEMBERS. Lieut. Col. Eustis, Lieut. Col. Walbach, Major Harris. Major Brooks, C'ajlL M'DoWRLL, Capt. MANIGAtTXT, Capt. Bennett, Capt. Craig. Major Crane and Capt. Irvine, Supernumeraries. 1 ieut. James L. Edwards, of the eorpaof Artillery, Judge tMToeate. •' The Court will corivene at Fort Independentft- on the day abovenientioned, will hear the charges, the plea of the prisoner, and will then adjourn for the purpose of convening the witnesses. " By order of Major General Ripley. (Signed) " II. F. EVANS, " Lieut. Lt. Art. and Actg. Brig. tnspeelOi "MILITARY DEPARTMENT, No. IF " /feat! Quarters, Castle Island, bth Oct. 1815 « GENERAL ORDER. '•Captain Thornton, of the Light Artillery, will sit as member of the Court Martial which is to convene to-day, in lieu of captain Manigault, who is prevented attending by indisposition. " By order of Major General Ripley. (Signed) «« H. F. EVANS; " Lieut. Lt. Art and Actg. Brig. Inspector ' OCTOBER 4, 1815. s The* court met pursuant to the above order, PRESENT. Colonel M'Neil, president ; iieut. col. Eustis, lieut. col. Walbach, major Harris, major Brooks- captain M 'Do well, captain Thornton, captain Ben- nett, captain Craig, members ; lieutenant Edwards judge advocate. The prisoner being asked if he had any objec- tion to the members named in the General Order. implied, that no objection rested with him personally, against any gentleman before him, but he objected to the court proceeding to be organized for the trial of his case, until he had the usual and necessar] notice of the prosecution, He said he had received no notice whatever, of any charge or accusation against him — and lie, therefore, was not prepared to take any step relative to his trial. The court, overruled the prisoner's objection, and were duly sworn. The prisoner then objected to hearing the charges against him read, on the ground, that he- had not been furnished with them previous to the trial ; — and moved that the promulgation of them in open court, might be postponed to some future- period. The court acceded to his motion ; and postponed the reading of them till another day. — The prisoner requested, that during his trial, he might be allowed to remain in Boston, he being at that time restricted to Governor's Island. The court decided, that it was proper to address a note- to major general Ripley, soliciting him to permit the prisoner to reside in town, during his frial. — The general complied with the request of the court The court then Adjourned to meet at Earle's Coffee tiouse, in Boston, to-morrow morning at 9 o'clock. OCTOBER 5, IS 15. The court met pursuant to adjournment. PRESENT. Colonel M'Neil, president ; lieut. col. Eustis* Lteut. col, Walbach, major Harris, major Brooks captain McDowell, captain Thornton, captain Bert, nctt, captain Craig, members ;• lieutenant Edwards, judge advocate. The prisoner being asked, if he was prepared to hear the charges against him read, replied in the- negative, on the ground that he had been furnished with them but a few minutes since ; and requested that another day might be assigned for reading them The court postponed the reading of them till to morrow ; and then the court adjourned till to-morrow' morning at 9 o'clock. OCTOKER <>, 1815. The court met pursuant to adjournment. PRESENT. Colonel M'Neil, president; lieut. col. Eustis, lieut. col. Walbach, major Harris, major Brooks, captain M'Dowell, captain Thornton, captain Ben- nett, captain Craig, members ; lieutenant Edwards, judge advocate. The prisoner being asked if he was read/ for I, replied that he was not ; that he had, since the idjournment of yesterday, received a letter from major Fraser, aid-de-camp to general Brown, re- quiring his presence at Brownsville or Plattsburg. The letter was superscribed " Col. Gardner, Adjt. Genl." The court decided that the trial should proceed. The prisoner then requested that he might be allowed the further indulgence of twenty- four hours to prepare himself, to make objections tive to the jurisdiction of the court. The court granted him the further indulgence of another day previous to his being arraigned. The judge advo- cate laid before the court the correspondence between major general Ripley and the prisoner, w hich follows : (COPY.) Fort Uurrcn, October I, 181). Sir — I do myself the honor to protest against your proceedings, to constitute a general court martial, in my case, on your own authority. I belong to the staff of the commanding general of the division. I came here with a leave of absence, and on business with you, which was unofficial. My station is announced in the Gene- ral Order of the first of June last, duplicates of which were sent to you, from the head quarters of the division at Albany. I wish to give you notice, that the court martial for my case, which you have ordered to convene on the 4th inst. and your arrest of me, on charges not of immediate occurrence, and which admit of reference to your commanding general, are illegal: and that it will become the subject of an additional accusation against you, if persisted in. A trial I shall demand on the charges you prefer : but it will be a trial instituted by the proper authority. I have the honor to he. Sir, your most ohediem. servant, (Signal) C. K. GARDNEH, Maj. 3d Iaf. and Actg.Adjt Gen. North. Division r« Jllaj. (,cn. Ripley, comag. 2d MilJ)ept . .A 'a t h ji. jlmn (GOPY.) Jftad Quarters, Boston, Octal/ei 1st, Ibij. MaJOF. GaRONEIJ, Sir — I received your note in the form of a protest, against the proceedings I have instituted in relation to myself, and have given it all the consi- deration it requires- Your views of martial law are erroneous— any officer commanding a department, of as high a grade as colonel, can arrest an inferior officer within his command, and order a court martial on him. When a deputy quarter master general wa§ arrested by a junior general, on the Niagara frontier, he objected to the arrest as illegal, he being an officer of the general staff. The court., however, decided that the arrest was a legal one; and found, if I mistake not, that officer guilty, among other allegations, of refusing to deliver up his s\\ ird to the junior general's aid. Those proceedings were approved by an old and accom* plished soldier, major general Gaines. This pre- cedent alone, is an answer to your protest. But, in the present case, you are not at all in the staff. There is, in the first place, no adjutant general recognised by our law ; no authority from the war department to g< neral officers to appoint one. — You could not pretend it would be in my power to appoint acting third lieutenants and ensigns of in- fantry, when there are no such officers recognised by law ; neither would it be in the power of the war dcpartm< nt to appoint an acting lieutenant general. Again — if adjutants general were authorised bv taw, you were only appointed an acting adjutant general ; now you must be fully sensible, this kind of appointment continues only as long as the person, acts. The moment he leaves head quarters, by permission, or orders, it ceases. It only operated while there, to authorise the person so appointed to do the duties of the office, but gives no permanent staff character. The moment he ceases to act, the staff character is destroyed. No one ever supposed it was necessary to issue an order to say, such an officer was no longer acting in a staff capacity. — The moment he ceases to perform those specific duties, he resumes his rank in the line. I could advert to numerous instances of this kind, but they will at once occur to your recollection. From these premises, you can easily draw the following deductions : 1st. That it. was settled in the case of major C that an officer attached to the general staff, was subject to the arrest of an officer of superior rank to him, like all other officers ; although the officer making the arrest was not the general commanding. 2d. That whatever might be your situation, were you now acting at the head quarters of major general Brown, or in pursuance of his orders, that, absent from there, you can be regarded only as the major of the third infantry. 3d. That even if you were a regular appointed adjutant general, yet when you came to this department, unless you were on specific duties you are subject to the orders of the general com B 10 manding it, in the same manner as any inferior officer. It was at first my intention, not from a claim of.' right on your part, but from motives of delicacy on mine, to have referred your case either to the wai* department, or to major general Broun ; but, feeling sensible that you would, from your character, possess a disposition to quibble, I found it the best way to pursue the course I have. The articles of war makes provision, that no officer shall be held in arrest more than eight days, or until a court martial can be assembled ; now, if I had referred the subject to either the war de- partment or major general Brown, it would require at least sixty days to summon a court martial. In which event, I have no doubt, you would have cavilled, and said the arrest was unreasonable ; for it was in my power to have summoned a court martial at any time. I now write you on an official subject. In relation to subjects not connected with our public- duties, it is my determination to have no written correspondence with you, I am, fce. (Signed) EL. AV. RIPLEY, Major General, Coradg. 2d Military Dept N. B. — There is one view of the subject that I think proper to place before you. By the law fixing the military peace establishment, your staff rank and duties were abolished, agreeably to the opinion of the attorney general, sanctioned by the president; you became nothing but major of the third 11 regiment. In this state of tilings, without any staff duties or appointment, you issued an order, purporting to be by order of major general Brown, appointing yourself acting adjutant general of the northern division. Even if there was such an officer, what evidence is there that general Brown ever appointed you ? Suppose that the situation of adjutant and inspector general should become vacant, and the secretary of war were to verbally appoint colonel King to discharge those duties, would an order from colonel King, signing it by order of the secretary* of war, be binding on the army *? — Or take it in a more familiar case : I have a right to appoint a brigade inspector — I appointed major Romayne, and promulgated it, in orders, signed with my own hand. If, instead of that course, major Romayne had issued an order for his own appointment, and signed it with his name, purporting to be by* order, could the army have recognized him as one of my r staff ? — what evidence would they have had that the appointment was not recognised by me ? at this moment major general Brown is commmunicating his orders through the medium of his aid-de-camp. (C0P\.) Fort Warren, ith October, 1815. SIR — I feel indebted to you for your condescen- sion in addressing to me the arguments you have drawn up, to oppose the grounds of my protest.-— But the unfair advantage of giving me no notice of them until this morning, in order that I might not 12 be prepared to obviate them before the convention of the court, is but a continuation of the others, which have been adopted since my arrest. I think it proper here to state, that the whole case of major C. is wrong in the application. 1st. His offence was the open disobedience and defiance of your orders, and justified his arrest by you, at the moment or on the evening that he com- mitted it. My submission is proved by my being here. My sword was delivered at your order. 2d. The court for his trial was instituted by brigadier general Gaines commanding, on your application. I expect to be allowed to be present when the question of the jurisdiction of my case is laid before the court I think the president of the United States can be justified under the law, in the provisional retention of colonel Hayne, (who remains with permission at Carlisle) and of general Parker, in the station of adjutant and inspector general, though you have laid down the position that no adjutant general is recognised by our law, and that, neither would it be in the power of the war department to appoint an acting lieutenant general. Nor do I admit your position with respect to any officer appointed to act in a staff station, that the moment he leaves head quarters, by permission, or orders, it ceases. And on your feeling sensible that I would, from my character, . 1815. 23 To all of which charges and specifications, the prisoner pleaded " Not Guilty." He, however, admitted the fact of writing the letter of the 14th September, 1315, referred to in the first specifica- tion of the fourth charge ; he also admitted the fact of writing the paragraph quoted from his protest, and inserted in the first specification of the fifth charge. The prisoner presented to the court the follow- ing note : '* Major Gardner alleges that he has had but two days notice of the charges^ and asks of the court, on the enormity of the accusations against him, the time of three weeks, to prepare for trial, except the evidence of colonel Aspinwall, about to depart for Europe." The court postponed the consideration of the subject until Monday, the 9th inst. to which day- it adjourned, to meet at 9 o'clock in the morning. OCTOBER 9, 1815. The court met pursuant to adjournment. PRESENT, Colonel M'Neil, president ; lieut. col. JEustis, lieut. col. Walbach, major Harris, major Brooks, captain M 'Do well, captain Thornton, captain Ben- nett, captain Craig, members ; lieutenant Edwards, judge advocate. Colonel Aspinwall, late of the army, a witness on the part of the prosecution, being sworn, says — Colonel Gardner, after much desultory conversa- tion, requested me to go to general Ripley, and, if D %6 possible, to effect his release from arrest. He stated points, which it would be desirable to him. that I should urge to general Kipley, to effect that object — among these motives were the illegality of the arrest, colonel Gardner being then the acting- adjutant general of tine northern division ; another was, that he had in his possession a manuscript pamphlet, which detailed the events of the last cam- paign on the Niagara frontier, in a manner very un- favorable to general Ripley, which he was willing to suppress, if the arrest was taken off, and colonel Gardner permitted to go away . This pamphlet he shewed me. These, as far as I can recollect, formed the basis of the argument which he wished me to use. Previously, however, to assenting to n-o at all to general Ripley, I let him distinctly un- derstand, that in this instance, I was equally indif- ferent to both parties, influenced only by a sense oi the evil consequences which I had for some time perceived to flow from the quarrels of the army— and that of course I should take such part of his message as would tend to prevent another quarrel. Under these impressions, I went to general Ripley, at Fort Independence, and stated to him on my first seeing him, that colonel Gardner, if general Rip- ley would release him from his arrest, was willing to drop every thing relative to their mutual differ ence here and hereafter. This the general in the most positive manner declined. I asked him if he was aware that colonel Gardner was acting adjutant general of the northern division ? He said, no. £ was, from his conversation, led to believe that i* 37 was useless to attempt to put a stop to the conti- nuance of the difference, and here ceased the con- versation for that time. Sometime afterwards, the general asked me to walk into his office ; and in the course of a desultory conversation, I mentioned to him the existence of the aforementioned manu- script. I did not urge it as a reason why, on that account, he should withdraw colonel Gardner's arrest, because I thought it would be indelicate in me to do it, and inconsistent with the views with which I had entered into the business ; which were merely to prevent another quarrel. I stated it to general Ripley, on my first seeing him, that I came in the capacity of a mediator, and not a messenger of colonel Gardner's particularly. Question by the court. Did you read the manu- script ? Answer. I read a part of it, not the whole. — Colonel Gardner read the greater part of it ; and I did not pay much attention to it. Question by the court. Did the manuscript pam- phlet " grossly and outrageously censure the con- duct of major general Ripley" ? A. It assumed to be a narrative of facts, which were highly injurious to the reputation of general Ripley ; but it was not gross in manner. Question by the court. You say, you delivered such parts of the message from major Gardner to general Ripley as would tend to prevent another quarrel — what was the whole message ? A. That is a great deal more than I could tell n half a day ; amongst other suggestions mad<- fc 2j8 me by colonel Gardner, which I did not think pro- per to communicate to general Ripley, was, that if the general did not accede to the proposition for a compromise , a publication ivoidd be made by colonel Gardner, in the nature of a posting of general llipley. Question by the prosecution. Did you not ex- pressly understand from major Gardner, that if general Ripley would discharge the arrest, that in consideration thereof, major Gardner on his part, would suppress the pamphlet ? A. Yes. Question by the prisoner. The evil consequences to the army of dissentions spoken of, were they not warmly assented to by me ? and was not this pre vieus to any suggestion of dropping all publica- tions in print ? A. Yes. Question by the prisoner. Was not my elucida- tion of every thing made to you, that you might state what views you thought proper to effect the object ; and stating, that I relied on you, or on your sentiments of honor, to make none injurious to me ? A. Every thing which colonel Gardner ex- pressed to me, seemed to conform to his sense cf propriety ; he left me to act according to my own sense of propriety, cautioning me generally not to commit his honor. The court then deliberated on the propriety of planting the prisoner's request, to adjourn for three weeks— which was not acceded to. They, how- 29 ever, agreed to allow the prisoner two weeks, td prepare for his trial — and then adjourned to meet at 9 o'clock, A. M. on the 24th inst. OCTOBER 24, 1815. The court met pursuant to adjournment. PRESENT. Colonel M 'Neil, president; lieut. col. Eustis, lieut. col. Walbach, major Harris, captain M'Dow- ell, captain Thornton, captain Bennett, captain Craig, members ; major Crane and captain Irvine, supernumeraries ; lieutenant Edwards, judge ad- vocate. A note was received from major Brooks, inform- ing the court, that in consequence of the severe in- disposition of his father, and of his attendance on him being requisite, he wished to be excused from sitting, and requested that one of the supernumera- ries might fill his seat. Major Crane accordingly took his seat, and with captain Irvine, was duly sworn, and the proceedings of the court during the whole session read to them. The judge advocate laid before the court a letter from captain John R. Bell, of the light artillery, in- forming them, that the public service required his presence at Castine, that he had not the means of transportation thither, and requested that his evi- dence might be taken by deposition. The prisoner laid before the court the following extract of a communication, addressed " Col. C. K. Gardner., acting adjutant general, division of the so north> Boston, Massachusetts," and endorsed major general Brown, dated : Portsmouth, A r . H. Oct. 18, 1815. I at least two months since sent you an order to join general Brown's staff, as adjutant general of the division of the north. (Signed) DONALD FRASER, Brigade Major and A. D. C. to General Brown. (Directed) C. K. Gardner, acting adjt. gen. D. N. I certify on honor, that the above is a true copy of the address, direction, date, and signature, and of the extract of a letter received by me. (Signed) C. K. GARDNER.. Acting Adjt. General. He then presented to the court the following note t On the ground of the recurrence to the orders of major general Brown, by authority, from Ports- mouth, of a date subsequent to general Brown's knowlege of my arrest, I request (as general Brown has not received any application from me) that the court v ill deem it proper to postpone its proceed- ings until an order may be received in the case, conveying general Brown's wishes — say ten days, (Signed) C. K. GARDNER, Acting Adjt. General. The court decided that it was inexpedient to postpone its proceedings. Captain Newman S. Clarke, of the sixth regi- ment infantry, a witness on the part of the prosecu- tor, being sworn, says — I saw colonel Gardner on the 17th September 1614, near the battery commonly called No. 3 } one Si of the enemies batteries on their extreme right, op- posite Fort Erie. Col. Gardner enquired of me for general Ripley — I pointed out the direction in which I last saw the general, and he observed that he might possibly not be able to find the general, and desired me to convey an order to him ; he imme- diately left me, after communicating the order, and from the direction that he took, I concluded that he was about to return to the rear. I did not see coh Gardner again during the action, to my recollec- tion. Question by the court. Did you belong to gen, Ripley's staff on the 17th September, 1814 ? A. Yes. Question by the court. What situation did you hold in the staff ? A. Brigade major. Question by the prosecution. When you saw colonel Gardner, was it within musket range of the: enemy ? A. I hardly think it was within point blank musket shot of the enemy ; the firing that was heard at this time, appeared to be incessant, particu- larly on the left ; the musket balls that fell among our column appeared to have been spent. This column was advancing on the enemy, and we had not at that time fired a musket. Question by the court. When colonel Gardner gave you the order for general Ripley, was he calm and collected, or did he f^hibit my appearance ol dismay 9 32 A. Colonel Gardner, when he made the enquiries Off me, made them in a very hasty manner, and ap- peared to be very impatient. I don't reeollect the particular color of his lace, whether it was white or red, but he appeared to be anxious that some other person should carry the order. Question by the court. Was there any more danger in seeking general Ripley in the direction you pointed out, than in coming to the place where you met him, colonel Gardner, or than in returning to the rear ? A. I found general Ripley in about five or ten minutes after I left colonel Gardner. There was much difficulty in getting to the general, on account of the under brush. The lire was much more se~ vere than it was when I received the order from colonel Gardner. Question by the court. Did you make any reply to colonel Gardner, after he requested you to con- ey the order to general Ripley — if so, what ? A. I believe I did make a reply, but don't re- member the particular words ; / hesitated about carrying the order. Question by the court. Why did you hesitate ? A. Because I felt an impropriety in carrying the orders of the commander in chief. Question by the prisoner. What was the order given you to general Ripley ? A. The substance of., the order which he re- quested me to convey to general Ripley, was, that general Ripley should take the general direction \ the troops. S3 Question by the prisoner. Did you not start im- mediately to carry the order ? A. After colonel Gardner left me, I carried the order. Question by the prisoner. Did you, (or did you not) express any objection to carry the order ? A. I have answered that question as nearly as I could, already. Question by the prisoner. How long was it after the first engagement, and after general Miller's column had advanced, when the reserve entered the wood ? A. The reserve was posted in Fort Erie, until the firing commenced, and was ordered to go into the action, but by some want of intelligence in communicating the order, the reserve took a direc- tion different to what was intended, as was under- stood at the time, and received a second order to enter the wood ; the exact number of minutes in doing this would be difficult for me to say, as I was employed in communicating orders from one end of the column to the other, but should not suppose it exceeded twenty-five minutes, from the first firing in the woods. Question by the prisoner. What conversation (if any) have you had with general Ripley, relative ro the subject of your testimony, or with his staff ? The judge advocate objected to the witness an- swering the question, it being irrelevant to the case. The court decided that it was an improper ques- tion to be put to the witness. F. 34 Question by the court. Was col. C. K. Gardner, adjutant general of general Brown's division, on the 17th September, 1814? A. Yes. Question by the court. What was the distance, from the place where colonel Gardner asked you to carry the order, to that where you found and deli^ vered the order to general Ripley ? A. I cannot say exactly ; I suppose it could not exceed 10, 15, 20, or 25 rods. Question by the court. Did you think at the moment that colonel Gardner directed you to carry the order because he was afraid to carry it himself ? A. I do not know that he was, but my impres- sion was, that he was so ; he was evidently endea^ ^iQring to find general Ripley. And then the court adjourned till to-morrow morning at nine o'clock,. OCTOBER 25, 1815. The court met pursuant to adjournment. PIIESENT. Colonel M'Neil, president; lieut. col. Eustis, iieut. col. Walbach, major Crane, major Harris, captain M'Dowell, captain Thornton, captain Ben^ nett, captain Craig, members ; captain Irvine, su- pernumerary ; lieut. Edwards, judge advocate. The prisoner suggested to take the sense of the court, whether questions to witnesses are proper, which require his impressions relative to what, does not enter int£ any specification against him, and re~ 35 opectfully suggested, that the record might be altered. The court decided that the record should remain as it was. The prisoner requested the sense and deci- sion of the court, on what he considered of impor- tance to his defence, whether he should be per- mitted to examine the witnesses, or bring collu- sion between his prosecutor and any witness, or as to improper means taken to give impressions inju- rious to him in conversations with any witness. The court decided that the prisoner should pro- duce evidence to invalidate the testimony on the part of the prosecution, but not until he entered into his defence. Lieutenant Elisha Brimhall, late of the ninth re- giment infantry, a witness on the part of the prose- cution, being sworn, says— At the battle of Chippeway, I was wounded in the commencement of the engagement, before we had got into line — while we were marching over the bridge, which obliged me to retire into the rear.— I went into a house on our left, as we marched down towards the enemy ; as the enemy's artillery were directed that way, two of their shot went through the house ; I then left the house and went into a barn, about 30 or 40 rods in the rear— while I was in the barn and binding up my wound, a shell pass- ed through the roof of the barn and exploded ; I went to the door, intending to go still farther to the rear; I saw colonel Gardner on horseback, with a 36 number of Indians and teamsters about him ; at the time I went to the door, they were all retiring far- ther to the rear. Question by the prosecution. Did you at the bat- tle of Chippeway, see colonel Gardner within mus- ket range of the enemy ? A. I did not. Question by the prosecution. When you saw col. Gardner retiring to the rear, was he in haste ? A. He appeared to be. Question by the prosecution. What were your impressions at the time you saw the prisoner, when he was galloping to the rear ? The prisoner wished the decision of the court, as to whether questions, might be asked witnesses to obtain their impressions, relative to what is not specified against him ? The court decided that no irrelevant question should be put to the witnesses ; but that questions should be asked relative to the impressions of wit- nessesy which do relate to the case of the prisoner. The witness then answered — to get out of the reach of the enemy's shot, as at that time their ar- tillery was directed that way. Question by the prosecution. Were you near enough to the prisoner to observe his countenance ? A. I was. Question by the prosecution. Did he appear to be under the influence of fear ? A. I could not tell exactly ; that was my im- pression at the time. Question by the court. At the time you saw colonel Gardner retiring from the barn, were our troops closely engaged with the enemy ? A. They were. Question by the court. How long did colonel Gardner continue in your sight, and which course did he take ? A. He went towards the second brigade, which was still in farther in the rear ; I should say he con- tinued in my sight from one to two minutes. Question by the court. Where was gen. Brown at that time ? A. I do not know. Question by the court. How Jong did you re- main m the barn ? A. Two or three minutes. Question by the com- < hat distance was the enemy from the barn t uie time the shell exploded ? A. I cannot tell exactly ; I should say from 60 to 80 Question by the court. Had the engagement be- come stationary, or was the enemy retreating? A. The engagement was stationary at the time. Question by the prisoner. What house did you first enter near the creek ? A. The white house ; I don't recollect who owned it. Question by the prisoner. Was this white house in front of the creek ? A. It was, I believe. Question by the prisoner. Were you, or were you not, in the rear of the barn, or at the rear sill of the opening, when I came up ? A. I did not see the prisoner come up. Question by the prisoner. Was the barn opeii^ and a free passage through ? A. There was a passage through by doors, the doors at that time open. Question by the prisoner. Were you slightly wounded, or in what manner ? A. I was reported slightly wounded, but it proved to be very severe ; I was wounded in the face or head. Question by the prisoner. After the time that the shell you speak of burst, and when you came to the rear of the barn, did you, or did you not, see me pass to the end of the barn, in the road ? A. I do not recollect ; I saw the prisoner pass up the road that was towards the rear. Question by the prisoner. Was there any shot .fly' in g from ine enemy, at the time you saw me gallop towards the second brigade ? A. There was. Question by the prisoner. Are you certain, whether you did not see me approach from the di- rection of the creek to the left ? 4. I did not. Question by the court. How do you know tha our troops were closely engaged — could you sec them ? A. I could not see them — I knew they were en gaged by the sound of the musquetry. Question by the prisoner. Have you, or have yoi. not) been promised by general Ripley, bis interest in ir of your bring continued in the army p The judge advocate objected to this question be ing put, on the ground of its irrelevancy. The court decided that it should not be put to the witness in the present stage of the trial. Lieutenant Horace Story, of the corps of engi- neers, and acting adjutant to that corps, a witness, on the part of the prosecution, being duly sworn, says— I saw colonel Gardner the afternoon of the sortie from Fort Erie, in the skirts of the woods, between battery No. 3, and battery No. 2, a British battery, in company with general Brown, and suite, colonel Jones, captain Austin, and lieutenant Armstrong ; I had gone up with captain Kirby, who complained of being exhausted with running, and at his request to carry an order from general Brown to general Ripley, by order of colonel M'Kee ; I afterwards remained near the person of general Brown ; I con- versed with colonel Gardner, 10 or 15 minutes, in front of the third battery, (the enemy's;) general Brown was not stationary at any particular place, but moved from the right to the left, as occasion required ; during the whole time that I was with colonel Gardner, and I never was more than forty or fifty yards distant from him, to my recollection, he appeared perfectly cool and collected. Question by the prosecution. Were you not on the point of going into action yourself with a mus- ket ? and what did colonel Gardner say to you ? A. While in front of the third battery, in com- pany with colonel Gardner, I had stopped a soklic* *0 returning with a British musket, which he had ta- ken prize, and was carrying into camp ; I sent him back again, and took his musket from him. I af- terwards said to colonel Gardner — I had a good mind to go into the battery : he told me, it was very loolish, as I had no command, and advised me to stay where I was — I accordingly took his advice. Question by the Prosecution. Were you in dan- ger when with colonel Gardner, and at the time he spoke to you ? A. At that time I think the firing did not reach us ; I, however, advanced towards the third batte- ry, until the explosion of the magazine, by lieut. Riddle, and the falling of the timber, warned me to retire ; this was the only time I recollect to have lost sight of colonel Gardner. When I joined him again, he had accompanied general Brown a little on our right ; a very severe fire had began in that quarter, I presume from a reinforcement of the enemy — the musket balls, as I passed towards col. Gardner, flew over my head and struck in the grass, and continued to do so after I had come up with him ; I spoke at intervals to colonel Gardner, a number of tim md he always appeared the same, perfectly collected. Question by the prosecution. Was there a ravine near the skirts Oi the wood, which you have men^ tioned ? A. There was a ravine at about 150 yards from the skirts of the wood, in the cleared ground to- wards Fort Erie. u Question by the court. Do you recollect colonel Gardner being sent by general Brown, with orders to general Ripley ? A. I know nothing of it ; I stood in front of the third battery, sending the men back, as they came out occasionally, looking at general Brown, and his suite ; so that an order might have been given, without my knowing any thing about it. Question by the court. Where was the column of reserve, during the time you were with colonel Gardner ? A. The column of reserve had proceeded up the ravine, at the time I was overtaken by captain Kirby, and found general Brown in company with his suite, in the skirts of the wood. Question by the prisoner. When you saw me near battery No. 3, of the enemy, and at other times, was I in front of the general situation of general Brown ? A. When we were in front of the third battery, general Brown was, 1 think, about 50 feet on our right, and I should judge about fifteen or twenty feet in our rear. Brevet brigadier general J. Miller y a witness for the prosecution, of the fifth regiment infantry-, be- ing sworn, sayn — I know nothing of the charges against colonel Gardner. Question by the prosecutor. Were you at the battle of Bridgwater, and if so, did you see colonel Gardner in the engagement ? r A. I was in the battle of Bridgwater, but don't recollect to have seen colonel Gardner in the ac- tion. Question by the prosecution. Were you in the action of the 17th September, 1814, near Fort Erie, and did you see colonel Gardner in that action ? A. I was in that action ; I don't recollect l# fyave seen colonel Gardner in the action. The prisoner admitted that he was not engaged with the enemy, at the battle of Bridgwater ; that he was sick, and confined to his bed through the day, and had been ill for a number of days, and was unable then to do justice to himself, in the dis charge of his duties in action. The court adjourned, to meet to-morrow at nine o'clock. OCTOBER 26, 1815. The court met pursuant to adjournment. PRESENT. Colonel M'Neil, president ; lieut. col. Eustis. lieut. col. Walbach, major Crane, major Harris, captain M'Dowell, captain Thornton, captain Ben nett, captain Craig, members ; captain Irvine, su- pernumerary ; lieut. Edwards, judge advocate. Colonel Jacob Hindmari, of the corps of artillery., a witness on the part of the prosecution, being sworn, says — I have no knowlege of the conduct of colone** Gardner, at the battle of Chippewa/. Question by the prosecutor. Were you at the battle of Chippeway f A. I was on the field at the commencement, but took no part until about the end. Question by the prosecution. Did you in that ac- tion see colonel Gardner ? A. I did not. Question by the court. What was your com- mand at the battle of Chippeway ? A. The artillery. Question by the court. Did you receive any or- ders during the action ? A. Previous to the action, I received orders from general Brown personally, and in the action, orders from general Scott, and lastly from general Brown personally. Question by the prisoner. Were you with the heavy pieces of artillery, on the bank of the Niagara, and did you then see me ride up and say, that the artillery should advance, without giving it as an order ? A. Sometimes I was with the heavy pieces of artillery, but have no knowlege of such a request being made by colonel Gardner. Question by the prosecution. Did not colonel Gardner, on the morning after the battle of Bridg- water, deliver you an order ? A. I am not certain that he did. Colonel Hindman, was then requested to testify, as to any knowlege he might possess relative to the fourth specification of the fourth charge? Question by the prosecution. Did you, while on the Niagara frontier, ever hear the epithets, coward or scoundrel, applied to colonel Gardner by general Ripley ? A. Not personally to colonel Gardner ; he has been called by general Ripley, in my presence, by such epithets. Question by the prisoner. Did you ever hear gen. Ripley say, that he made them to me ? and did you ever understand that I knew of these expressions i A. I have heard general Ripley say, that he haft pronounced colonel Gardner, to his face, or within his hearing — coward, or scoundrel, or words to that effect ; but have no knowlege of colonel Gard- ner's being further acquainted widi this declara- tion ; my impression was, that he (col. Gardner) had not heard of such expressions from any other source, at the time I heard general Ripley make use of those expressions. Question by the prisoner. Can you recollect who was present at any time, when you have heard these expressions? A. I cannot recollect the persons on the Niaga- ra frontier ; but at Washington, to the best of my recollection, lieut. col. Seiden, major M'Donald, (of general Ripley's staff,) and, I think, Dr. Bro naugh. Question by the prisoner. At what time did you hear these remarks from general Ripley ? A. In August, September, and October, last year, when we were at Fort Eric ; I cannot say precisely. 45 Question by the prisoner. Was it subsequent to general Ripley's return into Erie from furlough ? A. I cannot tell with certainty. Major Thomas Harrison, of the late forty-second regiment of infantry, a witness on the part of the prosecution, being sworn, says — I was at the battle of Chippeway, on the 5th of July, 1814 ; I did not see colonel Gardner in the action — but as we were marching on the field, I saw general Brown ride up to general Scott, and I presume he gave him some order ; I do not know the amount of the order. Major Benjamin Watson, of the sixth infantry, a witness on the part of the prosecution, being duly sworn, says — I saw colonel Gardner but once at the battle of Chippeway ; he was then enquiring for general Ripley's brigade, as he stated, for the purpose of communicating an order ; I knew nothing of his getting behind a barn. Question by the prosecution. At what period of the action did you see colonel Gardner ? A. It was while the enemy were retreating. The court adjourned, to meet to-morrow morn- ing, at nine o'clock, in consequence of the absence of witnesses, 46 OCTOBEB 27, 1815, The court met pursuant to adjournment. PRESENT. Colonel M'Neil, president ; lieut. col. Eust'is\ lieut. col. Walbach, major Crane, major Harris., captain M'Dowell, captain Thornton, captain Ben- nett, captain Craig, members ; captain Irvine, su- pernumerary ; lieut. Edwards, judge advocate. Captain Newman S. Clarke, of the sixth regi- ment, was again called to testify relative to the pri- soner's conduct at the battle of Bridgwater, (or Lundy's Lane.) Question by the prosecution. Did you not sec colonel Gardner, on the evening of the battle of Bridgwater, near the field of action ? A. I did. Question by the prosecutor. Was he not on horseback, and in rear of the line, and out of danger ? A. He was on horseback, and in rear of the line, 100 or 150 yards, I should say — and out of danger. I don't know that he was not in the action previous to this. Question by the prosecution. Did col. Gardner appear, when you did see him, in the exercise of his duties as a staff officer, or was he unemployed ? A. He was unemployed ; his horse was stand- ing still. I don't know whether he was ordered to remain there or not. Question by the prisoner. Do you recollect whe- ther any musket shot were striking the trees, and the road, in which we stood together, at that moment ? A. I don't know that there were any musket shot ; I heard some rattling in the bushes — I con- eluded that they were musket or grape ; they were not far from us. I supposed at the time they were spent shot ; there was very little firing at the time. Question by the prisoner. Do you recollect of my advancing on the road, and meeting the adju- tant of the twenty-fifth, who was complaining un- der a severe wound ? A. Yes. Question by the prosecution* How far did colonel Gardner advance ? A. I should think not more than five rods ? Question by the prosecution. Did you consider that there was any danger from the fire of the ene- my, in the position you then occupied ? A. I did not. Captain Clarke was then examined relative to his knowlege of the prisoner's conduct at the battle of Chippeway. Question by the prosecution. Did you see coL Gardner at the battle of Chippeway ? A. I did. Question by the prosecution. Was he not with the second brigade during a part of the action, and during that time was he at all exposed to the fire of the enemy ? A. At the time colonel Gardner came to the second brigade, there were cannon shot passed over the line of the second brigade ; two shot passed through the second brigade — I don't know that it was precisely at the time colonel Gardner cam*. r-rTat way, but near that time. Colonel Gardner 48 came to the second brigade, I suppose, to give or- ders, as the brigade immediately put itself in mo- tion. Colonel Gardner forded the creek with the brigade, and marched with the column, until it en- tered the woods — the column was not engaged ; the enemy were retiring as the column came into the field. If I recollect right, colonel Gardner left the column soon after it entered the wood, for the purpose of ascertaining the position of general Scott — don't recollect whether colonel Gardner returned again or not, but believe he did. Question by the prisoner. From what direction did I come to the second brigade ? A. I suppose colonel Gardner came from the field of action, or from the bridge — he came from that direction ; the bridge was near the scene of action. Question by the prisoner. Do you recollect of my going down the creek from the brigade, and re- joining it, as it was crossing the creek ? A. I do not. Question by the prisoner. Did this creek form an acute angle with the river ? and was it, or was it not, difficult to ford, at the point where the brigade forded it ? A. Yes, it formed nearly an acute angle % it was very difficult to ford it at the point where the bri- gade forded it. Question by the prosecution. Was not general Brown in the rear of general Scott's brigade, and in the direction from which colonel Gardner came, at the time he first joined your brigade ? A. I don't know where general Brown was. 49 Lieut, col. Nathan Toiuson, of the regiment light * artillery, a witness for the prosecution, being sworn, says — At the battle of Chippeway, I don*t recollect to have seen colonel Gardner at all. At the action of Lundy's Lane, I saw colonel Gardner ; he was communicating orders to some officers at the foot of the hill ; 'tw r as at some distance from where the action was. I do not recollect to have seen him at any other time near the field. Question by the prosecution. At what period of the action did you see colonel Gardner ; and was he at that time out of danger ? A. It was after the enemy's batteries had been carried — I believe there was no firing at the time. Question by the prisoner. Do you conceive that from the manner in which the action at Chippeway commenced, that my duties were to form, and lead, the men into action ? A. I do not, under the circumstances which that action commenced. Question by the prosecution. Would not the du- ties of colonel Gardner, as adjutant general and chief of the staff, require his presence with the troops composing the army, during an action ? A. I do think it the duty of an adjutant general to be present, and very active at the time of an ac- tion. I will state to the court, the reasons why I think it was not necessary for colonel Gardner to form the troops at the battle of Chippeway. The brigade of general Scott, which fought the battle. 50 was already formed for drill, as they marched oft' for battle — of course it was not necessary for col. Gardner to form them. Captain Reynold M. Kirby, of the corps of artil- lery, and aid-de-camp to general Ripley, a witness for the prosecution, being sworn, says — I received a sealed note, in the hand writing of col. Gardner, directed to general Ripley, which I knew, from having seen his hand writing repeatedly. I received it from the bar-keeper of Earle's coffee- house ; I gave it to general Ripley — he shewed me the note very soon afterwards, that evening — and it was the same in purport as the note in the speci- fication. He directed me to return it to colonel Gardner. I called at the Exchange coffee-house, to enquire for colonel Gardner, supposing that he lodged there — the bar-keeper immediately spoke, and said that if I had any note for col. Gardner, he would receive it, and see that col. Gardner had it. I enquired where colonel Gardner was, and found him, and gave him the note myself. There was an endorsement on the back of the note I gave colonel Gardner, in the hand writing of general Ripley. Question by the prisoner. Did you hand the note, with the endorsement, to me, as a message from general Ripley ? A. I gave it to colonel Gardner from general Ripley. Question by the prisoner. Do you know that I left the note with the bar-keeper at this (Earle's) house, and how far do vou know of it 9 51 A. I received the note from the bar-keeper ; from whom he received it, I don't know. The court adjourned until to-morrow morning, at nine o'clock. octoekr 28, 1815. The court met pursuant to adjournment. PRESENT. Colonel M'Neil, president ; lieut. col. Eustis, lieut, col. Walbach, major Crane, major Harris, captain M'Dowell, captain Thornton, captain Ben- nett, captain Craig, members ; captain Irvine, su- pernumerary ; lieut. Edwards, judge advocate. Captain David Deacon, of the United States navy, a witness for the prosecution, being sworn, says — Some time in the month of September, colonel Gardner came to me, and mentioned the circum- stance of his wishing to communicate with general Ripley, and mentioned the circumstance of a letter being left in the hotel by him — that general Ripley received it, but had returned it, objecting to the manner in which it had been handed to him. Col. Gardner then mentioned to me, that his friend was not here, and asked me if I had any objection to handing general Ripley a sealed letter, to do away the objection that he had made previous. I told colonel Gardner, that I was very much engaged ; I could not enter fully in the business — but, that if he would write on the envelope, the reason or cause of my coming, which was to do away the former objection, I would consent to carry it. Colonel 52 Gardner expressed to me, at this time, that he would not call on me at the time, but that he wish- ed to do away the objection immediately — that was his only object in calling on me. I accordingly de- livered the letter to general Ripley ; he read the envelope, and accepted the letter — our business there ended, after some explanation relative to the envelope. Question by the prosecution. Did you read the letter which you bore from colonel Gardner ? A. No. Colonel Gardner read the outlines to me ; I don't recollect the particular parts of it. — The envelope I read two or three times over. Question by the prosecution. Was the letter the same in purport with the letter recited in the speci- fication ? A. I cannot say — there are some parts that ap- pear similar. The prisoner admitted that it was the same. Question by the prisoner. Was it, or was it not, our understanding, that the favor you were so good as to do for me, was merely to deliver the letter, and ascertain its acceptance ? A. Yes. Question by the prisoner. Will you state the ac- ceptance understood, and whether the objection was admitted to be done away ? A. The letter was accepted from my hands — I cannot say whether the objection was done away. Question by the prisoner. Was the substance of the envelope you speak of, the same with this ? — - : which follows) : 53 Boston, nth Sept. 1815. Sir — That this letter, signed by me, may be- come entitled to be the subject of your considera- tion, I have requested captain Deacon, a master and commander in the United States navy, to hand it to you. As the objection, agreeably to your endorsement, was only to the disrespect of the manner in w hich the letter was communicated, (by the keeper of the tavern at which you put up, to the hands of your aid, and under seal, into your hands,) and not to the letter itself, I now anticipate your speedy con sideration and reply. I have the honor to be, "With very respectful intention, Sir, your obedient servant, (Signed) C. K. GARDNER. Major General Ribley. A. I believe it was the same. The judge advocate informed the court, that several witnesses were absent — the following is a list of their names ; annexed to which is the sub- stance of their testimony — and respectfully submit- ted to the court, whether their evidence was, or was not, of importance. Captain /. R. Bel/, to support fourth specifica- tion of fourth charge. Captain A*. .V. Hall, (at New York,) to prove what gen. Ripley said to major Gardner, as stated in fourth specification of fourth charge. Major Crooker, to testify that he never saw prisoner in action. 5i Lieut, col. Snelling, to prove general Ripley's re- marks, as stated in the fourth specification of fourth charge. Colonel Leavenworth, to testify his not seeing the prisoner in action. Colonel G. M. Brooke, same evidence as colonel Leavenworth. Major Marston, prisoner's position at Niagara. Major Orne, same testimony as major Marston. Major Harrison, to corroborate the testimony of lieutenant Brimhall. The prisoner addressed the court in the follow- ing words : I wish the evidence of major Marston, to prove that after giving orders to general Ripley to advance with the second brigade, I left it to see the situa- tion of the action ; went down the creek, which ran for some distance nearly parallel with the river; that the barn was connected with the creek on which it stood, by high board fences, and prevent- ed the possibility of my passing in front of the barn; that after I had observed the engagement •Vom the road which passes the barn, on the bank of the river, I returned to the twenty-first, (the only regiment taken by general Ripley) found it passing the creek in a mode not the most expeditious, and made a suggestion to major Marston, or some cap- tain of the twenty -first regiment, which was adopt. ed, and which gave it expedition ; that I continued >o lead that regiment of the brigade, agreeably to mv instructions, until the enem\ retreated — that my conduct and language was such as to animate the men of this brigade. I wish to obtain in evidence, the impressions of colonel Brooke, major Marston, and all the others who are absent, to rebut the impressions of lieut. Brimhall, late in the army, and captain Clarke, late brigade major to general Ripley. I wish the evidence of lieut. Lee, aid- de-camp to my prosecutor, to prove that he used no such ex- pressions as those alleged in the third specification of the fourth charge, when he called upon me with a verbal message from major general Ripley ; that what he did say, I answered as coming from general Ripley, and to state my verbal reply. I wish also the deposition of general Gaines, and the evidence of major Worth, with respect to my general character, whether they saw me in the ac- tion, and their present conviction of my conduct. I wish major Orne's evidence, that he never saw me, during the action of Lundy's-lane, (as it is called by my prosecutor. ) Very respectfully, (Signed) C. K. jSARDNEK, Major anil Acting Adjt. General. Major Azor Orne, of the late twenty. first regi- ment, and late assistant inspector general, a witness on the part of the prosecution, being sworn to tes- tify as to the prisoner's conduct at the battle of Bridge water, savs — All that I can state about colonel Gardner is this : I was ordered to remain in camp by general Brown, with general Porte, to see to the defence of the encampment ; and when I returned from the camp towards the field, I met colonel Gardner near the field of action, near Mrs. Wilson's ; he was giving directions relative to prisoners, (those taken with general Riall,) which fell within my department — I observed to colonel Gardner at the time, that he had taken my duty out of my hands, or to that amount ; and I could dispense with his services any farther. I do not recollect of there being any firing at that time, and don't know which way colonel Gardner went. The court adjourned till Tuesday, the 31st of October inst. at 9 o'clock, A. M. in order to afford (he judge advocate and the prisoner, an opportunity of making arrangements relative to the obtaining of testimony by deposition. OCTOIJKR 31, 1815. The court met pursuant to adjournment. PRESENT. Colonel M'Neil, president ; lieut. col. Eustis, lieut. col. Walbach, major Crane, major Harris, captain M'Dowell, captain Thornton, captain Ben- nett, captain Craig, members ; captain Irvine, su. pernumerary ; lieut. Edwards, judge advocate. Major Harris informed the judge advocate, that bince the adjournment of the court on the 28th, he had received a commission which gave him the brevet rank of lieutenant colonel, from the 25th of July, 1814. He accordingly took his seat agree;? blv to his rank. 57 It being a desirable object to obtain the remain- ing evidence on both sides, with as much expedi- tion as possible, the judge advocate and the prison- er, agreed to propound the subjoined questions to witnesses at a distance, in order to obtain their written instead of oral testimony. ON THE PAitT OF THE PROSECUTION. To captain Bell. — Did not colonel Gardner, at Albany, last winter, tell you that general Ripley had done every thing, on the Niagara frontier, to pick a quarrel with him ? To captain Hall. — Did not general Ripley al- ways pronounce colonel Gardner, a coward, at Fort Erie ? and was not this done in presence ot the general staff 1 , and without disguise, or wish for con- cealment ? To lieut. col. Snelling. — The same question as to captain Hall. To colonel I,eavemvorth, colonel Brooke, major Ci'ooker, and lieut. col. Jones. — Did you ever see major Gardner expose himself to the musketry of the enemy ? To major Marston. — Where was the position of colonel Gardner, during die battle of Niagara, and what was his conduct ? THE PRISONER WISHES Lieut, col. Snelling — To state all he knows of the fourth charge and specifications. Major Marston — To state what he saw of colonel Gardner's conduct at Chippeway. Major general Gaines. — 1st. Did you ever see colonel Gardner in action ? 2nd. What was your conviction, and now is your conviction, of his conduct at such time ? 3rd. Have you had an opportunity of becoming- acquainted with his sentiments as a man of honor' 1 How great an opportunity ? 4th. What is your opinion and conviction of his character as a man of honor ? Of major Worth. — The same questions as to general Gaines. ON THE PART OF THE PROSECUTION. To major general Wilkinson. — 1st. Did you not say, in the hearing of colonel Gardner, last winter, at Albany, that he was a scoundrel and coward* and did he resent it in any way ? 2nd. What was the affair between col. Gardner and lieutenant Johnson,, of the old sixth ; and was it not considered disgraceful to colonel Gardner ? and did not all the officers of the sixth, petition to the secretary of war, to have him struck from the rolls of the army ? ON THE PART OF THE PRISONER. The third and fourth specifications, and also thc second question to general Wilkinson, to the lieut. Johnson referred to, (I suppose) now a merchant, at Pittsburg, (Penn.) The second question of the prosecutor to general Wilkinson, also to said capt. Johnson. To general Wilkinson — 1. Did you ever state that you did so ? 2. Did you ever state this ? The prisoner declared that the presence of lieutenant Lee, was necessary to his defence, and £9 requested that he might be summoned to appear before the court. The court adjourned till to-morrow morning, at 9 o'clock. NOVEMBER 1, 1 815. The court met pursuant to adjournment. PRESENT. Colonel M'Neil, president ; lieut. col. Eustis, lieut. col. Harris, lieut. col. Walbach, major Crane, captain M'Dowell, captain Thornton, captain Ben- nett, captain Craig, members ; captain Irvine, su- pernumerary ; lieut. Edwards, judge advocate. Major general Jacob Brown, commanding the northern division of the United States army, a wit- ness for the prisoner, being sworn, says — I can state to the court, at the battle of Chippe- way, colonel Gardner was with me, in advance of Street's creek, previous to my having certainly as- certained that a general engagement would take place. Previous to this point of time, I had order- ed general Porter, with his volunteers, to break off for the rear of our general encampment, march to the left through the woods, out of view, and en- deavor to get between the enemy's light parties and their main camp, on the Chippeway. This being the state of the troops, and of the orders given, I was in advance of Street's creek, with my staff, of which number colonel Gardner was one, and present. I directed the advance picket to fall back to a log-house, near Mrs. Street's, in hopes 60 that the light parties of the enemy would elose up, So that general Porter, with his command, could place himself in their rear, and cut them off from their main camp. The American picket fell back accordingly, and the light part of the enemy in the strait, advanced ; when some firing took place be- tween the pickets of the two armies. At this mo- ment, I heard a heavy firing on our extreme left, in the wood, and from the report, I knew that Por- ter had not advanced sufficiently for to take ground to the right, so as to enclose the enemy's light par- ties ; from which, I inferred, that the enemy had advanced in force, and from the dust that was rising near the Chippeway, I was induced to believe that the enemy were advancing with their whole force ; I so stated to those around me, and immediately mounted, with my staff, rode rapidly to genera! Scott's tent, he being the commanding officer of the first brigade, to which was attached Towson's company of artillery, and ordered him to advance with his command. At the moment I gave him the order, he was standing before his tent, his horse prepared for him to mount, and his command turn- ing out for drill ; the order was obeyed with great promptness and ability. Within ten minutes from this time, and I most clearly believe within fifteen, I ordered colonel Gardner, we then being within the space occupied as a cump, and but a few rods in front of the second line, which general Ripley commanded, to go to general Ripley, and order him to advance by the left, through the skirt of the woods, and if possible, gain a position in rear of 61 the enemy's right flank, whilst he was engaged with Seott in front ; and I ordered colonel Gardner to remain with general Ripley, and his command, and to aid in conducting his column to the ground, as I had ordered. I saw no more of colonel Gardner, until I passed colonel Jcssup, who commanded the left battalion of Scott's brigade, at which moment, Scott's command and the British army, were en- gaged in close and desperate conflict ; having spo • ken with colonel Jessup, I inclined still further to the left, in hopes of meeting the head of general Ripley's command ; going a k\v rods, I observed colonel Gardner in the bushes, called to him — he was on horseback, in advance of the troops, led on by general Ripley ; he promptly informed me that general Ripley was near, with his command — and would in a few T minutes, be able to close with the enemy, as I had directed. Before, however, gen. Ripley's command came up, Scott's command, aided by the deep and deadly wounds that general Porter's volunteers had inflicted, defeated and drove in the enemy in «;reat confusion. Relative to the prisoner's conduct at the battle of Niagara, (or Lundy's-lane) the witness says : I saw colonel Gardner, previous to the action of Niagara ; he was very unwell, and part of the time in his tent. I saw him lying down on his beddine; and he complained of being unwell. I did not ex- pect much from colonel Gardner in the battle of Niagara ; I considered him a sick man. Scott had been ordered to advance with his bri- gade, Towson's artillery, and major Harris, with GZ the mounted regular and militia dragoons. After they had been some time in ad vane, I heard a very- considerable firing, from which 1 inferred, that Scott had met the enemy. My staff were imme- diately assembled around me, with the exception of major Jones and major Wood, who had advanc- ed with Scott ; I ordered colonel Gardner, with my aids, to put the troops that were in camp, on the march as promptly as possible ; all the regu- lars to proceed directly on to Scott's support ; the militia, under general Porter, to advance to the old work of the enemy, on the east, or lower side of the Chippeway creek. Having confided to colonel Gardner, as chief of my staff, the order for all the troops in camp, to advance — I rode as rapidly as possible, with colonel M'Ree, towards the scene of action ; the first distinct information that I recol- lect, was from colonel Jones, that I met near the Chippeway. He informed me, that Scott was en- gaged with the enemy, and that they appeared in force. I instantly ordered him to proceed, and or- der up gen. Porter with his volunteers also. Colonel Gardner, was within the field of action ; he communicated with my aids, and I considered his conduct correct and honorable under the cir- cumstances. 1 did not give him personally, any order on the field, During mv absence, for the recovery of my wound, after the battle of the Falls, col. Gardner joined me for the recovery of his health, by per- mission of general Gaines. .After being with me for a few d .... he asked permission to return, which 65 I refused ; he repeated his application differ v Times, which was as often refused. Relative to the prisoner's conduct at the sortie from Fort Erie, the witness further states : The first colonel Gardner knew of the sortie ot the 17th of September, was on the morning of that day. I had, the evening- previous, intimated to col. Jones, my intentions, as his tent was near mine, and I had to make use of him in my arrangements. When 1 informed colonel Gardner of the plan oi the sortie, I put him upon the performance of cer- tain duties, to which he attended with zeal and cheerfulness ; though he did appear to me, to be hurt, that I had not sooner informed him of my in- tentions. When sufficient time had elapsed, as I supposed, for general Porter to gain a little path way, that led from the rear of Fort Erie, past the front of the enemy's right, being anxious to see him, I passed out upon this path way, to meet him, with five or six soldiers, and my aid, iieut. Armstrong ; as we were passing out, at this moment colonel Gardner hastily came up to me,, with a view of pro- ceeding out in company ; as I did not consider air. additional aid could be useful for such a purpose, I ordered him within the lines of our camp, to attend to duties that I deemed important. After general Porter had turned the enemy** right, and general Miller had' pierced his line, be- tween battery No. 3, and battery No. 2, colonel Gardner I saw near me, as I was standing in front of battery No. 3, and sent him with an order to general Ripley. This was before the reserve under 64 general Ripley had advanced across the ravine, be- tween the enemy's position and ours. As general Ripley and his command, were entering the ene- my's lines, near battery No. 3, I again sent colonel Gardner to general Ripley, to order him to move with his command, as rapidly as possible, to sup- port general Miller on our extreme right. Question by the prisoner. Do you conceive col. Gardner, during his service with you, ever to have misbehaved in view of the enemy ? A. I do not. Question by the prisoner. Ever to have faultered from the execution of his duty ? A. I do not. Question by the prisoner. And what do you con- ceive his conduct to have been ? A. Good. Question by the prisoner. As commanding gen- eral, with the knowlege you have had of my ability, were you satisfied with the discharge of my duties, during the campaign ? A. ' Yes. Question by the prisoner. Did you ever trust me. with the responsibility of a command, during the campaign on the Niagara? and in such case, what was the manner in which you observed me to exe- . ute the trust ? ,/. Observing on the morning of the third of July, that the troops destined to land above Fort Erie, at the same time with those that landed below, \Vould not gain their position in time to secure the troops in the garrison — I ordered colonel Gardner 65 to take command of that part of the second brigade that crossed from Black-rock, to form them on the beach as they landed, and march up to Scott's right, where I would give him further orders — upon his advancing with his command, I ordered him to penetrate the woods, in the rear of Fort Erie, and place his right flank upon the Lake shore, above the Fort, so as to completely enclose it ; and if possible, secure all it contained. This duty he performed with zeal and gallantry. Question by the prisoner. Was, or was not, this the only instance of your charging me with a com- mand ? A. I have no recollection of ever having given colonel Gardner, during the campaign, any other command. Question by the prisoner. Did you ever hear general Ripley, pronounce me the epithets men- tioned in the fourth specification of fourth charge ? A. No, I never did — I never heard a word of the kind. Question by the prisoner. Did you ever hear that he had pronounced me so ? and when did you first hear of it ? A. The first I ever heard of it, was at Buffalo, on my way to Detroit. Question by the prisoner. Will the witness please to state, whether he has ever heard my cou- rage doubted, and when first ? A. At the city of Washington, sometime to- wards the close of last April. I have no recollcc- 66 tion of ever hearing his courage doubted until I was at Washington. Question by the prisoner. Did you see a brevet commission signed by the president, and secretary of war, which was sent me ? A. Colonel Gardner was in company with me, and shewed me an envelope, which he observed, contained a brevet. Question by the prisoner. Did I return it ? A. I have no recollection of having taken the trouble to look at it ; but I read a letter that he had drafted to.the war department, declining its accept- ance. Question by the prisoner. Will the witness please to state, whether he considered the brevet as voluntarily sent me, as far as respects any agency or wishes of mine ? A. Colonel Gardner never expressed to me, a wish to have a brevet ; but on the contrary, desired that he might not be noticed in that way. The court adjourned till to-morrow morning, at 9 o'clock. NOVEMBER 2, 1845. The court met pursuant to adjournment. PRESENT. Colonel M'Neil, president ; lieut. col. Eustis, lieut. col. Harris, lieut. col. Walbach, major Crane, captain M'Dowcll, captain Thornton, captain Ben- nett, captain Craig, members ; captain Irvine, su- pernumerary ; lieutenant Edwards, judge advocate 67 Lieut, col. Jones, of the corps of artillery, a wit- ness on the part of the prosecution, being sworn, says — I remember but one occasion that afforded me a distinct opportunity of observing the manner of colonel Gardner, when engaged with the enemy — it was on the 17th of September, (the day of the sortie from Fort Erie,) I was with him, some dis- tance between the ravine and the enemy's battery No. 3. I particularly observed his activity in car- rying some orders, I presume from general Brown. All that I saw and observed that day, gave me not the smallest idea, but the conduct of colonel Gard- ner, was cool and deliberate, and becoming an offi- cer — he was within the wood, certainly within musket shot of the enemy. I do not recollect of seeing him at all in a ravine. Question by the prisoner. From your situation with general Brown, could I have received an order from him, in the ravine, without your knowlege ? A. I did not see general Brown in the ravine at all. Question by the prisoner. Were you under the necessity of issuing orders from the adjutant gene- ral's office, at Queenston, in consequence of my illness ? A. Yes — on the 24th of July, the day before the battle of Niagara. Question by the prisoner. Did you ever hear general Ripley, pronounce me the epithets scoun- drel and coward ? A. No. 68 Question by the prisoner. Did you ever hear that jae had done so ; and when first did yon hear of it •? A. Yes. The first I heard oi' it, was at Sack- ctt's harbor, in the month of May or June last — ■ but it was very different ,rom the information given me by colonel Snelling, and much more to the pre- judice of colonel Gardner, when I saw him at Buf- falo, on my way to Detroit, in July last. Question by the prisoner. Have you ever com- municated it to me ? A. I have not ; because this is the first time I have seen colonel Gardner, since I heard of the charge. The prisoner requested that general Miller, and captain Clarke, witnesses in his behalf, might be examined, before the evidence was closed on the part of the prosecution, as they were anxious to leave town, the public service requiring that they should be with their respective commands. The request was granted by the court. Brevet brigadier general James Miller, of the fifth regiment infantry, a witness for the prisoner, was examined. Question by the prisoner. Did you ever hear general Ripley, pronounce me the epithets scoun- drel and coward ? A. Not that I recollect. Question by the prisoner. Did you ever hcr.r that he had done so ; and when first did you hear of it ? A. I never heard that he had done so, until lately ; and whether it was at Buftalo, or Albany, I don't recollect. 69 Question by the prisoner. Did you ever hear my courage doubted — if so, when ? A. I have no recollection of ever hearing his courage doubted, until since the war. Question by the prisoner. Will you please to state how long you commanded the old sixth regi- ment ? A. I commanded it about a year. Question by the prisoner. What was my stand- ing with the officers of that regiment, with respect to the manner in which they spoke of me ? A. I don't recollect to have ever heard the re- putation of colonel Gardner, called in question, by any officer of that regiment. Captain Newman S. Clarke, a witness for the prisoner, was then examined. Question by the prisoner. Have you ever heard general Ripley speak injuriously of me ? A. I don't recollect to have ever heard him. Question by the prisoner. When did you hear that he had done so ? A. I heard at Fort Erie, that general Ripley had said some things injurious to him — I don't re- collect at what time, or from whom. It was, I think, previous to the sortie of the 17th September, 1814. The court adjourned, to meet again on the 10th of January, 1816, at 10 o'clock, A. M. in order to afford sufficient time to obtain the testimony of ab- sent witnesses, particularly from major Marston at Detroit. 70 JANUARY 10, 1816. The court met pursuant to adjournment. PRESENT. Colonel M'Neil. president; lieut. col. Eustis, lieut. col. Harris, lieut. col. Walbach, major Crane, captain M'Dowell, captain Thornton, captain Ben- nett, captain Craig, members ; captain Irvine, su- pernumerary ; lieut. Edwards, judge advocate. A letter, of which the following is a copy, was iaid before the court. Washington City, 2d January, 1&16. Sir — lam directed by major general Ripley, to desire you to defer the trial of major Gardner, for two days, provided general R. does not arrive in Boston by the 10th of January. Most respectfully, R. M. KIRBY, A. D. Camp To Colonel M-Neil. In consequence of the above letter, and the ab- sence of the prosecutor, the court adjourned till to- morrow morning, at 9 o'clock. JANUARY 11, 1816. The court met pursuant to adjournment. PRESENT Colonel M'Neil, president ; lieut. col. Eustis, lieut. col. Harris, lieut. col. Walbach, major Crane, captain M'Dowell, captain Thornton, captain Ben- nett, captain Craig, members ; captain Irvine, su- pernumerary ; lieut. Edwards, judge advocate. 71 In consequence of the absence of the prosecutor, the court adjourned till to-morrow morning, at 9 o'clock. JANUARY 12, 1816. The court met pursuant to adjournment. PRESENT. Colonel M'Neil, president ; lieut. col. Eustis, lieut. col. Harris, lieut. col. Walbach, major Crane, captain M'Dowell, captain Thornton, captain Ben- lyejfct, captain Craig, members ; captain Irvine, su- pernumerary ; lieut. Edwards, judge advocate. The judge advocate laid before the court, the following depositions. Copy of a letter from captain Hezekiah Johnson, late of the second regiment United States infantry, to the judge advocate. Pittsburg, (Penn.J Nov. 2Qth, 1815. Sir — I have this moment had the honor to re- ceive your letter of the 7th inst. My answers are annexed to the subjoined transcript of the interro- gatories, of the prosecution and the prisoner. * " Question by the prosecution. What was the affair between major Gardner, (then a subaltern) and lieutenant Johnson, of the old sixth, and was it not considered disgraceful to Gardner ? and did not all the officers of the sixth, petition to the secretary of war, to have him struck from the rolls of the army ?" * Thi question vas at 6rst addressed lo general Wilkinson, and th, prisoner requested it might be copied, and sent to capt. Johnson. 1"l A. I do not know, nor did I ever hear of any such affair, between major Gardner, (then a subal- tern) and lieutenant Johnson, of the old sixth; nor did I know there was a lieut. Johnson, of the old sixth, until the interrogatory came before me. 2d. The affair, and the idea of disgrace, were equally unknown to me. 3d. 1 never before heard of a petition to have tlie struck from the rolls of the army. Question by the prisoner. Did you ever state this ? (alluding to the above question on the part of the prosecution.) A. Never. (Signed) H. JOHNSON. The above answer to the foregoing questions, was sworn and subscribed to before me, Philip Gilland, esq. a justice of the peace, in and for Alleghany county, and state of Pennsylvania, this 20th day of November, 181i>. (Signed) P. GILLAND. Copy of a letter from captain N. N. Hall, to the judge advocate. Fort Columbus, Harbor of JVeio York, 22d ffav. 1815. To the following question, to wit — " Did not general Ripley, always pronounce major Gardner, a coward, at Fort Erie, and was not this done in presence of the general staff, and without disguise or wish for concealment ?" I answer, that general Ripley did pronounce major Gardner, (then colonel Gardner) a coward, at Fort Erie ; I cannot posi- tively say that it was in presence of the general staff, but it was said openly before officers of the army, and I feel confident from the public manner in which the remarks were made, that the general had no wish to disguise or conceal them. (Signed) N. N. HALL, Captain Corps Artillery. THIRD MILITARY DEPARTMENT. Head Quarters, J\'eu< York. On the twenty-second day of Novemher, 1815, personally appeared before me, Henry Wheaton, judge advocate of the northern division of the army, captain Nath'l N. Hall, of the corps of artillery, and made solemn oath to the truth of the foregoing deposition, by him subscribed and reduced to writing. (Signed) HENRY WHEATON, Army Judge AdvocHte. THIRD MILITARY DEPARTMENT. Head Quarters, New York. On this tenth day of November, A. D. 1815, before me, Henry Wheaton, judge advocate of the northern division, personally appeared lieut. col.. Josiah Snelling, of the sixth regiment of infantry, and made solemn oath to the truth of the deposi- tion hereunto annexed, by him subscribed and re- duced to writing. (Sinned) HENRY WHEATON, Army Judge Advocate ((ueslion by the jrrosccution, to lieut col. Snelling. Did not general Ripley always pronounce colonel Gardner, a coward, at Fort Erie, and was not this done in the presence of the general staff, and with- out disguise or wish for concealment ? K A. Sometime in the month of September, 1814" while the left division of the northern army was in the entrenched camp near Fort Erie, I heard major general Ripley say, that colonel C. K. Gardner,, was a liar, a scoundrel, and a coward ; it was in a tent belonging to some officer of the twenty-first regiment, whose name I do not recollect ; and there were present several officers, but none of the general staff, except myself. I asked the general if he Mas aware, that he would be bound in honor, if called upon, to light a gentleman to whom he had applied such epithets ; he replied, that if coL Gardner thought proper to call upon him, he would fight him, without hesitation. I then observed, that I believed colonel Gardner was in the next tent, and might possibly have heard him ; he replied, he hoped he had — his remarks were meant for his ear« At this distance of time, I cannot be positive that I have quoted the words correctly, but of their truth in substance I am certain. I afterwards looked in- to the next tent, and saw colonel Gardner on the bed, lying on his face, and apparently asleep. That was the only time I heard major general Ripley, pronounce colonel Gardner a coward. In reply to the request of colonel Gardner, rela- tive to the fourth charge, first, second, third, fourth, and supplementary specifications, lieut. colonel Snelling, testifies as follows : At the time of the conversation above referred to. I was but little acquainted with colonel Gardner, and felt reluctant to report to him expressions which I knew must lead to unpleasant consequences. 75 particularly as I was on terms of friendship, at least of civility, with the other party ; but afterwards, finding that it was the subject of general conversa- tion, I mentioned it to an officer, who I thought would repeat it to the colonel ; and on the presumption that he did, I must confess my opinion of colonel Gard- ner's courage, was much lessened, and I did not hesitate to express it. I have since, however, as- certained, that the information was never given him, and have not failed to do him justice in that particular. Early in the month of September last, I met coh Gardner, in New York ; he stated to me, that on his way from the city of Washington, he had seen colonel Mitchell, of the artillery, who first informed him of the reports in circulation, injurious to his reputation ; that since his arrival in the city, he had conversed with colonel Hindman on the subject,, who had referred him to me for further information, I then told him what I have stated in reply to the question of the prosecutor ; he expressed his re- gret that he should have remained so long in igno- rance of the slander, but observed, that notwith- standing the late period at which it had come to his knowlege, he should not hesitate to call major general Ripley to a personal account for it ; the next day, he requested me to accompany him to Boston ; this I at first declined, but I afterwards consented to join him there in a few days. Colonel Gardner proceeded to Boston, and I shortly after received a letter from him. which induced me ty 7C> follow. On my arrival, I found him a prisoner at Governor's island. Of the first specification of the fourth charge, I know nothing. Of the second specification, I know nothing, but from the information of colonel Gardner. Of the third specification, I can say nothing from my personal knowlege ; but I have been informed that such an attempt was made to shift the quarrel from major general Ripley, to third lieutenant Lee of the artillery. Colonel Gardner viewing lieut. Lee as the messenger of general Ripley, with whom a discussion was then pending, did not resent it. On the fourth specification, I can only say, that it is not within my knowlege that colonel Gardner had ever been informed that he was called a scoun- drel, liar, and coward, or that his character had ever been called in question by general Ripley, or any other individual, until he had heard of it from me, in the month of September last. On the supplementary specification, it is in my power to testify with regard to a certain manuscript, purporting to be a history of the last campaign, 11 that I have perused it ;" it was sometime in my possession, and that the object of it was to ridicule the bombastic, inflated, and ridiculous publications which have recently made their appearance in the Port Folio, and some eastern newspapers, under the title of biographical sketches, &c. and that so far from major general Ripley's being " grossly and outrageously censured," the work was written (so far as I am able to judge) with a clue regard to his- 77 toric truth, and can be supported by evidence before a military tribunal. (Signed) J. SXELLING. Lieut Col. -6th U. S. Regiment Infantry. GENERAL WILKINSON'S DEPOSITION. Question A. {by the prosecution.) Did you say in the hearing of major (then colonel) Gardner, last winter at Albany, that he was a scoundrel and coward, and did he resent it in any way ? Question by the prisoner. Did you ever state ihat you did so ? (alluding to the above question on the part of the prosecution, marked A.) Question B. (by the prosecution. ) What was the affair between major Gardner (then a subaltern) and lieutenant Johnson of the old sixth ? and was it not considered disgraceful to Gardner ? and did not all the officers of the sixth petition to the secretary at war to have him struck off the rolls of the army? Question by the prisoner. Did you ever state this ? (alluding to the question by the prosecution marked B.) Answer of James Wilkinson, late a major general in Hie service of the United Stales, to tlie above questions, transmitted to lieutenant James L. Edwards, judge advocate. To question A. he answers, that he does not re- collect having said to major Charles K. Gardner, he was "a scoundrel or a coward ;" but believing from his general character, and the information re- ceived from Dr. William M. Ross,* stated below, * The court ordered that the letter of doctor Ross, should be struck from the record, as not being considered evidence 78 that he was the one, and the other ; he has given the opinion frequently, and without reserve ; and this reply will satisfy the interrogatory by the pri- soner. To the question B. he answers, he has no recol- lection of the facts stated. Personally appeared before me, James Wilkinson, who having been duly sworn, on the holy evan- gelists of Almighty God, deposeth as follows : that the answers by him given to the preceding ques- tions, are just and true, to the best of his knowlege and recollection. (Signed) JAS. WILKINSON. Sworn and subscribed before me, the 15th No- vember, 1815. (Signed) PETER BAYNTON, One of (he Justices of tfyq Peace in and for the county ofPliiladelphia. CAPTAIN BELL'S DEPOSITION. Question by the prosecution. Did not major Gard- ner, at Albany, last winter, tell you that general Ripley had done every thing on the Niagara fron- tier to pick a quarrel with him ? A. At Albany and Troy, last winter, I had frequent conversations with general Ripley and major Charles K. Gardner, on the subjects of con- troversy between several officers of the Niagara army : colonel Gardner appeared not to be insensi- ble of the dislike entertained by general Ripley to- ward him — but the exact expressions used by coh Gardner arc not recollected. (Signed) JOHN R. BELL, Captain Lt. Artillery. 79 Hancock, ss. Commonwealth of Massachust Town of Castinc, Nov. Ut/i, A. D. 1815. Personally appeared the within named John R„ Bell, and made solemn oath, that the answer to the question contained in the Avithin, is true, according' to the best of his knowlege and belief. Before me, (Signed) B. HALL, Justice of the Peace in and for the said county of Hancotk- Copy of a letter from colonel G. M. Brooke, to the judge advocate. Norfolk, October 15th, 1815. Sir — In answer to your question (by the prose- cution,) " Did you ever see major Gardner expose himself to the musketry of the enemy ?" I say, to the best of my recollection, I never did. I am, very respectfully, your obedient servant, (Signed) GEO. M. BROOKE. Colonel U. S. A This answer was sworn to on oath, by colonel Geo. M. Brooke, this 11th day of Nov. 1815. (Signed) WILLIAM B. LAMB, An Alderman of the borough of Norfolk (COPY.) Socket? s Harbor, November, 1815. On my return from Kingston, Upper Canada, if had the honor to receive the interrogatories of major Charles K. Gardner, of the third regiment U. States infantry, communicated by you as judge advocate to the court, before which he appears to be accused. To the first interrogatory, "have you ever seen me in action?" it affords me pleasure to state, that so I saw major Charles K. Gardner, then of the 25th regiment of infantry, frequently during- the action of the lith November, 1813, Chrysler's Field. The period I particularly allude to, was just before and during the retreat of our troops before the enemy, when I observed major Gardner making great and zealous exertions to re-form and correct the line of his regiment ; I say his regiment, because he ap peared to me, to be in the absolute command of it. I did not see lieut. col. Cutting, and was ignorant of the arrival of general (then colonel) Gaines, pilose person I did not know. The 25th was warmly engaged and closely pur- sued by the enemy, consequently major Gardner, who was at the head of it, (at the time I allude to.) much exposed. Hi& conduct, so far as I had an opportunity of observing it, was perfectly unexcep- tionable. At the close of the battle of Chippeway, I was ordered by major general Scott, as an officer of his staff, to find the second brigade, which he supposed lo occupy a wood in the rear of his left — inform its commanding officer, that he was in close pur- suit of the enemy, who had broken in every direc- tion ; and to communicate other information, by which he might be guided in his movements. On discovering the second, or general Ripley's brigade, 1 found colonel Gardner, adjutant general, leading it towards the scene of action, in his stall' capacity, I presume. \i I mistake not, I first communicated with colonel Gardner, who appeared to be exe :ut in? ord< rs '- 1 i?'i his usual zca! and abilities. SI The second interrogatory is answered, I conceive, in my reply to the first — to recapitulate, I will ob- serve, that wherever I have had an opportunity of observing* the deportment of major Gardner, as a soldier, he has evidenced great zeal and bravery. "With respect, kv. &c. I am your most obedient, (Signed) ' W. J. WORTH, Brigade Major 2nd Tnfantr\ To Lieut. Edwards, judge advocate, 6cc. 6cc. &c. Jefferson County, Bownsfield, &s. William J. Worth, major of the second regiment U. S. infantry, being duly sworn, saith — that the matters and things in the foregoing statement made, and by him subscribed, are in fact true, and further saith not. (Signed) W. J. WORTH, Brigade Major 2nd Infantrj Sworn and subscribed to, at Sacketts' Harbor, the 24th day of November, 1815, before me — ENOCH ELY, Justice of the Peace. MAJOR CROOKER'S DEPOSITION. Question by the prosecution Did you ever see major Gardner expose himself to the musketry of the enemy ? Washington City, JVov. \\th, 1815. In answer to the above question, I say no. (Signed) T. CROOKER, Major late 9th Infantry. Washington county Dist. < Columbia. Personally appeared major Turner Crooker, who made oath on the holy evangelists, that the answer 82 he has given to the query above stated, is true, and further saith not. Sworn to this 13th November, 1815, before WILLIAM THORNTON, Justice Peace, Lieutenant Richard H. Lee, a witness for the prosecution, being duly sworn to give evidence re- lative to the third specification of the fourth charge, says — So much time has elapsed since the occurrence, that I have an imperfect recollection of the conver- sation that transpired — but that I used an observa- tion towards major Gardner, to this effect : that it was my opinion, that general Ripley held his char- acter too contemptible to enter into any "written correspondence with him. I recollect having made a repetition of this observation — this is all that I at present recollect. This conversation took place in major Gardner's room. Question by the prisoner. Were you the aid-de- camp of general Ripley ? A. I was. Question by the prisoner. Had you ever any difference with me ? A. I don't recollect of any ; I never had. Question by the prisoner. Was the occasion of your calling on me, to communicate a message from major general Ripley — and when you arrived at my quarters, did you take me by the hand, and say that you wished to speak to me in private ? A. The reception I met with from major Gard- ner, was a very gracious one, which I very stiffly S3 received, by a formal salutation of my hand. I dia say that I wished to speak to him in private. Question by the prisoner. After going with me to my room, did you not, holding the message of general Ripley in your hand, observe in general Ripley's name, these words — general Ripley has such an opinion of your character, that he will give you none but verbal messages ; not hold a written correspondence with you, or words to that effect ? A. I did, with the addition of the word despi- cable, or some epithet equally degrading ; and it was my opinion that general Ripley did believe that his character was so despicable ; that he would hold no correspondence with him. Question by the prisoner. Did I not reply to the remark as coming from general Ripley, saying that if general R. supposed that I wished to avail myself of a written correspondence with him, to make it public, he very widely mistook my inten- tions, and that I deprecated the resort to the public prints in the differences of officers of the army ? A. Yes. Question by the prisoner. Did you use such an expression to me, as it is my opinion ? I wish the witness to be precise in his recollection. A. I did. Question by the prisoner. Did you not read the message, which you said was a verbal message, from a paper ? A. I did three times. Question by the prisoner. Did you not call upon :jie, as the aid of gen. Ripley, and on his part only ? 8* A. I called upon him as the aid of general Ripley. The latter part of the question requires explanation. Question by the prisoner. What was the mes- sage you read to me — or the amount of it ? A. I do not recollect. Question by the prisoner. Were you induced to suppose from the reply I made to your observa- tion, or from any part of our conversation, that I replied to it, as coming from yourself ? A. I did not make any suppositions on the subject, I can only say, that the observation ori- ginated in me. Question by the prisoner. Were these the words as near as you can recollect, of the message you read to me as a verbal one ? "If the friend of major Gardner, alluded to in his letter of yesterday, will call on major general Ripley, on the subject of that letter, general Ripley will give him an answer there-, to, to the question contained therein." A. I think they were words to that effect. Colonel Moody Beedel, of the late eleventh regi- ment U. S. infantry, a witness on the part of the prosecution, being duly sworn to testify as to the third specification of the first, second, and third charges, says — I don't recollect seeing colonel Gardner at all on that day. Question by the prosecution. Were you in the sortie from Fort Eric, on the 17th Sept. 1814 ? A. Yes. 85 Question by the prosecution. Did you see colonel Gardner in that action ? A. I did not, to my recollection. The court adjourned till to-morrow morning at nine o'clock. JANUARY 17, 1816. The court met pursuant to adjournment. PRESENT. Colonel M'Neil, president ; lieut. col. Eustis, lieut. col. Harris, lieut. col. Walbach, major Crane, captain M'Dowell, captain Thornton, captain Ben- nett, captain Craig, members ; captain Irvine, su- pernumerary ; lieut. Edwards, judge advocate. Captain David Deacon, of the United States navy, was again examined to testify relative to the second specification of the fourth charge. Question by the prisoner. How far was the letter enclosed in the envelope, which mentioned you as the bearer, considered received ? A. I saw general Ripley by himself, and deliv- ered the letter — he made some observations, and asked if I had any objections to a third person be- ing present. He called in major Harris, and after some conversation, it was accepted. It was not immediately understood what part I was to take in the business, until I explained. Doctor Joseph Lovcll, hospital surgeon of the U. S. army, a witness for the prisoner, being duly sworn, to testify relative to the fourth specification of the fourth charge, was asked the following — 86 Question by the prisoner. Did you ever hear oi the epithets injurious to me, used by general Rip- ley, on the frontier, and when ? A. I never heard of them until I arrived in Boston, after colonel Gardner's arrest. I was on the Niagara frontier during the whole of the cam- paign of 1814 ; I was with the remaining officers of general Brown's division, during the last spring and summer — but heard nothing of the epithets alluded to. Brevet major Josiah H. Fose, of the sixth infan- try, a witness for the prisoner, was sworn, to tes- tify relative to the prisoner's conduct at the battle of Chippeway — Question by the prisoner. Did you see me at the battle of Chippeway, and what did you observe of my conduct ? A. The second brigade was formed, waiting for orders, when major Gardner, the adjutant gene- ral, rode up — he rode up and spoke with general Ripley, and then rode off again, down the river to- ards the battle ground. We made a movement io cross Street's creek—I was at the head of the column, and just as I was crossing myself, major Gardner rode up and attempted to cross on horse- back, but he was obliged to dismount and cross the creek on foot toward the enemy ; the brigade then marched toward the wood in a direction to flank the enemy — major G. preceded the column and moved vapidly on ; after penetrating the woods a consi. derable distance, it was ascertained that the enemy had retired b< vond Chippeway- We halted for a 87 moment, and then took up our march for camp ; soon after which major G. left us, and I don't re- collect to have seen him afterwards. Major G« was not out of danger at any time while he was with the second brigade. The subjoined note was laid before the court by the prisoner, as evidence in his behalf, relative to the second specification of the fourth charge : (COPY.) This letter was received from a bar-keeper of a tavern in Boston. This course was manifestly im proper — it should have been sent by some gentle- man. The course taken to deliver it to a bar- keeper, was degrading to the army. The rank of major general Ripley entitled him to more respect. The letter on this account is returned — when it is communicated in a gentlemanly manner, it will be entitled to be the subject of consideration. The judge advocate admitted that it was the one sent by general Ripley to the prisoner, he having been a witness to captain Kirby's acknowledging that it was the same. Brevet lieut. col. S. D. Harris, of the regiment light artillery, a witness for the prisoner, was then sworn. Question by the prisoner. What is your recollec- tion of the situation of the barn, in rear of Street' ■ creek, relatively to that Greek ? A. I believe it extended to the creek, and form- ed a part of the enclosure to the garden. There being no more testimony offered to the court, the prisoner was asked when he would be prepared to make his defence, and answered on Wednesday next. The court was then adjourned to the 17th instant, with an understanding, that if evidence which had been called for, should arrive previous to that day, it should be received before the prisoner made his defence. JANUARY 17, 1816. The court met pursuant to adjournment. PRESENT. Colonel M'Neil, president ; lieut. col. Eustis lieut. col. Harris, lieut. col. Walbach, major Crane, captain M'Dowell, captain Thornton, captain Ben- nett, captain Craig, members ; captain Irvine, su- pernumerary ; lieutenant Edwards, judge advocate. Brevet major J. II. Vose, of the sixth infantry, was examined on the part of the prosecutor. Question by the prosecution. Was there any musketry which reached the second brigade at the battle of Chippeway ? A. I believe not. Question by the prosecutor. Had not the enemy been repulsed in front when the second brigade was put in motion ? A. I cannot answer positively as to that — but I think that was the case. The enemy were repul sed, but were throwing their cannon shot. Colonel Moody Beedel, of the late eleventh U. S. infantry, was examined— 39 Question by the prosecution. When did you first know, that a sortie from Fort Erie was contem- plated ? The prisoner objected to the question as being irrelevant. The court decided that the question should be put to the witness. The witness answered — At the council of war which was held about eight days prior to the sortie, Question by the prosecution. Was gem Brown present at the council of war ? A. He was. Question by the prosecution. What was general Browii^s position at the sortie, and was it near the troops, as they were engaged ? The prisoner objected to the question being put to the witness, as irrelevant. The court decided that the question should not be put. Question by the prosecution. What position did colonel Gardner occupy at the sortie ? A. I did not see him during the day. Question by the prosecution. What brigade did you serve with ? A. The first, under general Miller. Question by the prosecution* If he, colonel Gard . r, had been present with general Miller's brigade, at any time during the action, should you not have noticed it from your position ? A. I think that I should.. M 00 Brevet captain 11. M. Kirby, of the corps of ar- tillery, and aid to major general Ripley, a witness for the prosecution, was examined. Question by the prosecution. Did you ever hear general Ripley pronounce major Gardner a coward, and under what circumstances ? A. I heard that expression made use of by general Ripley, in 1814, in the camp at Fort Erie, in different conversations. Question by the prosecution. Do you recollect of its taking place in a tent when colonel Snelling was present — if so, state the circumstances ? A, I recollect a conversation one evening, in general Ripley's tent — there were a number of offi- cers present, and I think he was. General Ripley pronounced him a coward, and colonel Snelling re- plied, that colonel Gardner lay in the next tent, and would probably hear the expression ; general Rip- ley replied, that he intended it for his ear. I have repeatedly heard general Ripley make use of the expressions. Question by the prosecution. Did I make them openly, and not with an apparent view for any con- cealment or disguise ? A. I heard those expressions made use of at different times, and in different companies — thev never were made to me alone, I believe, at any time. Question by the prosecution. When did you first know of the sortie, and by whom ? A. The sortie was expected at the time the militia crossed. I first knew of it on the 15th, rom major Brooke of the 23d regiment. Question by the prosecution. Was the circum • stance that a sortie was meditated known to the principal officers of camp ? A. It was a subject talked about among the officers for about four or five days — not that I knew from any intimation from head quarters ; with the exception of the information I have received from major Brooke. Major Brooke told me that he rer ceived the information from general Brown. It was a subject of expectation in camp from the time the militia crossed. Question by the prosecution. Did you perform the duty of aid -de- camp to major general Ripley, at the sortie ? A. I did. Question by the prosecutiotf. Did colonel Gard- ner bring any order from major general Brown to major general Ripley ? A. Not that I know of. Question by the prosecution. Did you see him with the second brigade, during the action ? A. I did not, while the second brigade was to- gether — it was together but a few minutes. Question by the prosecution. Did general Ripley remain with the twenty-third, after the twenty-first marched from the brigade — and did you see colonel Gardner at any time with the twenty-third ? A. General Ripley remained with the twenty- third regiment, until after he was wounded ; and I did not see colonel Gardner during that period. Question by the prosecution. Was colonel Gard- ner's position when you passed him, within the musketry of the enemy ? A. The only time I saw colonel Gardner, if I saw him at all, was near the ravine, with general Brown, and I should think, not exposed. General Brown was surrounded by his staff. Question by the prosecution. After the batteries were carried, was not the situation of the troops such as to require the presence of an adjutant gene- ral, from their dispersed and deranged situation ? A. It would have been necessary for the imme- diate commanding general to have had a sufficient staff about him, to organize the different corps — I think that an adjutant general would have done it more readily, than aids-de-camp, from their supe- rior rank. Question by the prisoner. Were you at the time you say you heard these expressions of general Ripley, his aid-de-camp ? A. Yes. Brevet lieut. col. Samuel D. Harris, of the lieht artillery, was examined on the part of the prose- cution. Question by the prosecution. At the battle of Niagara, after the capture of the enemy's artillery, could net its removal have been effected at once, if there had been a chief of the staff to attend to it ? A. If we had had harness for the dragoon horses, we might have brought them off. Question by the prosecution. After it was cap- tured, and before the troops rallied, was there not time to obtain harness from Chippeway, or from our own artillery ? i)2> A. I should suppose there was sufficient time to obtain harness from Chippeway. At the ter- mination of the action, I received an order from general Ripley, by an officer whose name I do not recollect, ordering me to collect as many of my troop as I could, to remain on the field as a rear guard, or party of observation, to watch the move- ments of the enemy. I remained on the field, and colonel Towson passed by me ; I asked him if we could not get off the captured artillery — he replied, that he had no horses. I observed to him, he might take mine— he asked me, if I had harness ; I re- plied in the negative — and he said it was impossi- ble to get them off. Question by the prosecution. Were you in the battle of Chippeway, and engaged in advance with general Scott's brigade during the action 9 A. Yes. Question by the prosecution. Did you see colonel Gardner on the field ? A. I do not recollect that I did. Colonel Beedel was again called in. Question by the prosecution. Did general Brown on the 15th of September, inform you particularly of the meditated sortie ? A. He did, on the evening of the 15th ; the reasons why he made it known to me, was because he wanted some non-commissioned officers to send into the enemy's lines. He requested me not to mention it to any one ; and I accordingly did not. Question by the prosecution. When did colonel Snelline: arrive on the frontier ? 9i A. He arrived at Buffalo, on the 19th August, 1814, and crossed on the 25th or 26th to Fort Erie. Lieutenant Richard II Lee, of the corps of artil- lery, was examined relative to the sortie of the 1 7th September, 1814. Question by the prosecution. Did you see major Gardner during the sortie — and what was your situ- ation ? A. My situation was aid-de-camp to brevet brigadier general Miller. I did not see major Gard- ner, in the action. Question by the prosecution. Before the action commenced, and during it, what was his situation ? A. With general Brown, I believe — some part of the time in the ravine, and on the hill near the Fort. I had not an opportunity of seeing him dur- ing the action, having been engaged where the trees would prevent my observing his position, either on the hill, or in the ravine. Question by the prosecution. What occurred at a dinner given to a number of officers, in relation to major Gardner, at general Miller's quarters, after the sortie ? The prisoner objected to the question on account of its being a general one. The court decided that it should not be put to i lie witness. Question by the prosecution. When did colonel Shelling arrive at Fort Erie ? A. As well as 1 can recollect, the 25th or 26th of August, 1814. The court adjourned, till 9 o'clock to-morrov morning", 93 JANUARY 18, 181 fi. The court met pursuant to adjournment. PRESENT. Colonel M'Neil, president ; lieut. col. Eustis, lieut. col. Harris, lieut. col. Walbach, major Crane, captain M 'Do well, captain Thornton, captain Ben- nett, captain Craig, members ; captain Irvine, su- pernumerary ; lieut. Edwards, judge advocate. Doctor /. Lovell, hospital surgeon U. S. army, was examined relative to the prisoner's illness, at the battle of Niagara. Question by the prosecution. Did you know of major Gardner's being more indisposed than the officers of the army generally, at the battle of Nia- gara ? A. I did not know any thing of his being in- disposed, nor did I hear of it. I was attached at that particular time, to general Scott's brigade ; I should not have been likely to have heard of it, ex- cept by common report. Doctor Bell was the sur •geon at head quarters. Captain Armstrong Irvine, of the light artillery, a witness for the prosecution, was sworn. Question by the prosecution. Did you serve in advance of the volunteers, under general Porter, ir t the sortie ? A. I was in advance of the volunteers at the sortie ; I considered myself under the command of colonel Gibson, who commanded the rifle re giment. 96 Question by the prosecution. Did you sec major Gardner at any time with that brigade, at the sortie ? A. Not that I recollect of. Question by the prosecution. Did not the rifle- men to which you were attached, march from our extreme left to our extreme right, and did you see Colonel Gardner on your whole route ? A. We marched from the extreme left of For; Erie, to the enemy's batteries — I did not see col. Gardner during the whole route. Brevet lieut. colonel S. D. Harris, of the light artillery, was examined. Questioii by the prosecution. Did you see colonel Gardner after the battle of Niagara ? A. Yes. Question by the prosecution. Did he appear more indisposed than the officers of the army generally ? A. I had no knowledge of major Gardner's indisposition. Brevet major Josiah II Fose, of the fifth regiment U. S. infantry, was again examined. Question by the prosecution. How far was gen. Scott's brigade in advance of the second brigade, previous to the moving of the second brigade, at the battle of Chippeway ? A. I cannot answer that question, as there were trees and houses between the first and second brigade. I can say, that I think, they were from one-half to three-fourths of a mile. The prisoner laid before the court the following to the front. sc Lieutenant Elisha BtimbaU r late of the ninth •regiment infantry, a witness on the part of the pro- sedition, being sworn, says- — u At the battle of Chippeway, I was wounded in *ne commencement of the engagement, before we had got into line — while we were marching over the bridge, which obliged me to retire into the rear.- — 1 went into a house on our left, as we marched down towards the enemy ' as the enemy's artillery were directed that way, two of their shot went tlirougk the house ; I then left the house and went into a bam, about 30 or 40 rods in the rear — while I was m the barn and binding up my wound, a shell pass- ing through the roof of the barn and exploded ; I vent to the door, intending to go still farther to the rear ; I saw colonel Gardner on horseback, with a number of Indians and teamsters about him ; at the time I went to the door, they were ail retiring far- ther to the rear,'" Such was the conduct of the adjutant general of the American forces at the battle of Chippeway. To do away this testimony, the prisoner has not even pretended he was in the action. He has not tried in any way to repel the testimony of a single witness. General Browjn, major Jones, and major Worth, do not intimate that he otherwise exposed himself than I have already stated. Of the dispo- sition of these persons to serve major Gardner, there can be no doubt. The first in bis official re- port, with these facts known to him, extolled his conduct. Major Gardner in return, on every oc- casion in bis power, in views of campaigns and cle fences, eulogises the former. He is bound to do ir by every obligation which can be imposed on man. Is there any attempt on the part of the prisoner to invalidate the testimony -of lieut. Brimhaih No such attempt has been made. If it had it would have been fruitless ; the reputation of lieut. Brim- hall as a soldier, and as a man, stands too hia:h in comparison for a moment's doubt to be entertained. If you believe it, you must convict the prisoner of cowardice at Chippeway. You cannot upon your oaths and your honor, as men and as soldiers, dis- pense with its full force, for it stands unimpeached. I have now finished the analysis of the testimony applicable to the prisoner's conduct at Chippeway. I shall now present you a more forcible instance- Repair with me to the field of Niagara, where the forces of the contending nations met in a more deadly strife. charge r. " Specification 2. — For that the said Charles K. Gardner, at a place called Lundy's-lane, in Upper Canada, on or about the 25th July, 1814, he then and there being adjutant general of the American forces, then engaged with the enemy, and his duty then and there being, as chief of the staff, to form H4 and organize the troops ; to lead them into actidn, and to direct and arrange all the staff duties and proceedings of the field, did then and there wholly omit to perform these duties, but did take up his position in the rear of the American forces wholly out of danger. CHARGE II. Specification 2.- — For that the said Charles K* Gardner, at a place called Lundy's-lane, in Upper Canada, on or about the 25th July, 1814, he then and there being adjutant general of the American forces, then engaged with the enemy, and his duty then and there being, as chief of the staff, to form and organize the troops, to lead them into action, and to direct and arrange all the proceedings of the field, did then and there wholly omit to perform these duties — but did take up his position in the rear of the American forces. CHARGE III. Specification 2. — For that the said Charles K, Gardner, at a place calkd Lundy's-lane, in Upper Canada, on or about the 25th July, 1814, he, then and there, being adjutant general of the American forces, then engaged with the enemy, and his duty then and there being, as chief of the staff, to form and organize the troops, to lead them into action, and to direct and arrange all the proceedings of the field, did, then and there, wholly omit to perfonr these duties — but did take up his position in the rear of the American forces, and wholly out of danger." The adjutant general of the army had marched with it from Qucenstom Wlien the action c©n> mi need he mounted his horse, and gave orders for some of the brigades to move to the field. He rides a distance of nearly three miles ; his com- manding general deems it necessary to rush into closest combat. Major Gardner halts at the dis- tance of sixty or eighty yards in the rear, and out of danger, till the action is over ; he retires with the army to camp. The next morning he is early seen distributing orders to the several corps, and he finally takes up his line of march with the army to Fort Erie, where he remains until the enemy in- vest it, when he is directed to repair to major gen. Brown. True, he states to his commanding gene^ ralthat on the afternoon previous to the action, he was indisposed! Gentlemen, I appeal to you as sol- diers, whether this excuse can be admitted as an apology ? It is not every species of indisposition which will justify an officer in remaining from the field. It is not a slight head-ache, a palpitation of the heart, or a trifling cold, that can warrant an officer of high rank in avoiding a field, on which depended the safety and honor of the American arms. But let me ask if it was any thing but mere pretext ? How could colonel Gardner ride such a distance to the field ? How could he remain so long in the rear ? These facts in my view, are con- clusive. If a brave man were placed in such a po- sition, would he not wish for action ? Would notthe excitement of battle remove his pains and his ago- nies more than by remaining in a position where he could be of no earthly service "? and when he could hear nothing but the groans of the dying. Wl>er<- T 146 is the report of the surgeon that he was sick ? You have no evidence but his own declaration to major general Brown, and his own declarations are not evidence for him. He complained of being sick — it is the common pretext of cowards when danger is nigh. Should a soldier in the ranks make the same pretext, when arriving within one hundred yards of the enemy, and fall to the rear without or- ders, he would be shot for it ? And is an officer second in importance to none but the commander in chief, to avoid danger with impunity, when un- der the same circumstances a subordinate officer would be punished ? The facts shortly stnad, with reference to this specification, that major Gardner pretending to be sick, rides to the field ; when there, he perhaps expected his general would take up his position in the rear, and under those circum- stances he intended to perform the same part he did at Chippeway : General Brown, however, went into the action, and fear prevented major Gardner from following. Gentlemen, some of you are old soldiers, and have seen a variety of service. I appeal to you for the correctness of the remarks lam about to make. Did you ever know an officer of any rank conduct him- self as major Gardner did on this occasion, withoui beingdeemed a coward? Were you ever acquainted with an instance where an officer of rank in a se- verely contested action, and whose duties required him in the thickest of the fight, that remained on horseback a short distance in the rear, upon a pre- text of illness, who did not by such acts loose all pretences to military reputation ? Have you not, on the other hand, known repeat cd instances of officers leaving their sick beds and repairing to the field ? The battle ended, they have again retired to their litter or their tents. How was it on this very occasion with a host of gallant men ? With Brady, with Jessup, and Lea- venworth, and others I could allude to, if delicacy allowed it. The two first were severely wounded* and in excruciating pain, the latter was also wound- ed ; but they scorned to retire. Their blood flowed freely, but their honor retained them. At that very moment the adjutant general of the forces was skulking from danger under pretence of indis- position, and riding about in the rear ! ! ! If major Gardner was sick, why repair to the field ? If he was unable to perform his duties in the fight, why not return to camp ? A stronger case of cowardice, of neglect of duty, and of misbehavior could not well be imagined. General Brown and colonel Jones to be sure, testify they never knew any misbehavior or faultering on his part in the presence of the enemy. There is a conclusive an- swer to their testimony. They never saw him in the face of the enemy and exposed to his fire — when I say in the face of the enemy, I mean within striking distance of him. I do not allude to spent cannon shot at the distance of half a mile — nor do I allude to the spent balls of musketry. Every military man knows that these arc not suffi- cient to frighten an old woman. The intermediate period of the campaign is not made a matter of charge. Major Gardner during iiS the pressure of the siege at Fort Erie, was absent with general Brown. Although attached to the army, and not to the person of the commanding general, he left the army and passed his recess at a distance from it. I do not pretend to censure him for it. It was, it appears, the direction of general Brown, and major Gardner was not responsible. CHARGE I. " Specification 3. — For that the said Charles K. Gardner, at a place called Fort Erie, in Upper Cana- da, on or about the 17th September, 1814, he then and there being adjutant general of the American forces, as aforesaid, and it being his duty to assist, to form, and to direct the troops, and to be with them in the heat of the action, did take his position in or near a ravine, between Fort Erie and the woods, and wholly out of danger; and in this situation, when directed by major general Brown, commander in chief of the American forces on that occasion, to communicate certain orders to general Ripley, then engaged with the enemy — lie, the said Charles K. Gardner, did employ another officer, to wit, captain Newman S. Clark, to expose himself to the fire of the enemy, and to communicate the said orders, while he, the said Charles K. Gardner, took special e.are to keep out of ganger. en \vj.:v, ii. Specification 3. — For that the said Charles K. Gardner, at a place called Fort Erie, in Upper Ca- nada, on or about the 17th September, 1814, he then and there being adjutant general of the Ame- "kcan forces, as aforesaid, and h being his dutv to Ii9 assist to form and direct the troops, and to be with them in the heat of the action, did take his position in a ravine, between Fort Erie and the woods, and wholly out of danger — and in this situation, when directed by major general Brown, commander in chief of the American forces on that occasion, to communicate certain orders to general Ripley, then engaged with the enemy, did employ another offi- cer to expose himself to the fire of the enemy, and communicate the said orders, while he, the said Charles K. Gardner, took special care to keep out of danger. CHARGE HI. Specification 3. — For that the said Charles K. Gardner, at a place called Fort Erie, in Upper Ca- nada, on or about the 17th September, 1814, he*, then and there, being adjutant general of the Ame- rican forces, as aforesaid, and it being his duty to form and direct the troops, and be with them in the heat of the action, did take his position in a ravine, between Fort Erie and the woods, and wholly out of danger — and in this situation, when directed by major general Brown, commander in chief of the American forces on that occasion, to communicate certain orders to general Ripley, then engaged with the enemy, did employ another officer to expose himself to the fire of the enemy, and communicate the said orders — while he, the said Charles K. Gard ner, took special care to keep out of danger." The affair of the sortie next forms the subject oI~ investigation. The facts involved in it so far a,: they are applicable to major Gardner, evince the 150 same spirit and feeling's which have thus far mark- ed him during the campaign. I disclaim all idea of bearing upon the prisoner, excepting so far as the facts shall warrant me. Let him employ invec- tive, it is seldom the language of truth. Let him pursue the course of idle declamation — I shall cool- ly march forward in that path where the testimony directs the way. The testimony of major general Brown, as I un- derstood it, when delivered in court, was that the in- tention of a sortie was not communicated at all ex- cepting to colonel Jones, the evening previous to its taking place. If I am incorrect in quoting it, the court will set me right. This, nevertheless, was a mistake in point of fact — for it was known to most of the [officers a long time previous. General Porter and colonel Wood had been engaged in arranging the plan of It, and the testimony of colonel Bcedel and captain Kirby both coincide in establishing the fact, that the officers were generally apprized of it. Under these circumstances, general Brown has estified to you that the chief of the staff his first confidential officer, was not apprised of it. He does not attempt to disclose the reason why a neglect of so cutting a nature to the feelings of a soldier, was practised towards colonel Gardner. Facts speak more loudly than testimony — they are irresistable in their nature. We see on the one hand, a gene- ral officer disclosing his plans to the officers of the ramp, and at the same time keeping them secret from the officer, who from his situation was most -v"'! e^ to confidence, and whom he had eulogised 131 in the highest manner. On the other, at u critical moment of the action, we beheld the same major Gardner surrendering up the immediate command of the army to an officer who but a short time be- fore had been the object of censure. This mark of confidence at the time, was hailed as the pledge of harmony — dangerously wounded in conflict — borne from that field oscillating between life and death, little did I imagine that through the medium of negative approbation, an attempt would be made to injure my memory if I fell, and my reputation if I survived. I return to the subject of the sortie. The posi- tion of the enemy's batteries was in the woods ; general Brown with his staff, took up their position in the first place, in the open ground between Fort Erie and the woods. The attack commenced by the volunteers on our left ; general Miller's bri- gade entered the woods, nearly perpendicular to Fort Erie. The twenty-first regiment received orders to enter the woods near battery No. 3, the chain of works and batteries extended some dis- tance into the woods. Under these circumstances as the troops advanced, the general staff moved forward. Where was major Gardner at the time ? In his usual station in the rear. General Brown gave him two orders to communicate to general Ripley. Was not here occasion for an adjutant general to go forward ? Did this not afford an op- portunity to major Gardner to expose himself? He communicates neither order. Captain Kirby's Testimony is express to this point. He procures colonel Snelling, if I do not forget, to transmit the one, and captain Clarke the other, and immediately retires to the rear ! Captain Clarke tells you there were some spent balls which flew at the time ; this probably had an effect in producing the retrograde movement ! I say nothing upon the manifest im- propriety of committing orders to the brigade major. An adjutant general is not only bound to transmit the order, but to see it executed. To take off* the staff of brigades for that purpose, would be to de- stroy the whole army organization. But this is of trifling consequence in comparison with other cir - eumstances. Captain Clarke states that after bat- tery No. 3, was carried, and the enemy repulsed, colonel Gardner came to him with an order, he be- ing in rear of me, and requested him to convey it to me — that at this time, nothing but spent balls fell in the spot where they stood, but the firing was heavy and incessant on their left. That colonel Gardner appeared hasty and impatient, and anxious that some other person should carry the orders, and that according to the witness's impression, he was under the influence of fear. That on soliciting captain Clarke, he hesitated, because he thought i*- impioper to convey the orders of the commander in chief. That he finally complied, and colonel Gardner returned to the rear. That this order was sent while general Ripley was moving with a column to the attack. Isnotthisstatementtrueand tm impeached "? General Brown in his report states that he gave such an order ; so far, therefore, docs the statement of the commanding general corrobo- rate the testimony of captain Clarke. If you be- i 53 lieve him, you must convict the prisoner of cow . ardice in the battle of the sortie. The order to me was to assume the direction of the troops. — Major Gardner not only ought to have brought the order, but it was necessary he should report to me, being invested with the immediate command. Captain Kirby tells you that the troops were dis- persed and deranged. An adjutant general and his assistants were peculiarly necessary to assist in their reorganization. It was his special duty. By the command of the whole devolving on me, I had no staff but my aid ; for my brigade major was attached to the brigade, and not to my personal suite. But, gentlemen, do you not see that this order which was sent, was in conse quence of the adjutant general having neglected his duty, and his commander being apprised of it.-— Who is to take the general direction of troops in action but the adjutant general, subject to the or- ders of the commander in chief? If it were not a principle as universal, and as old as the office, in every army, still it would be a duty, since it it is so laid down in your own regulations, to which 1 refer the court. It is the duty of the ad- jutant general to assist in forming columns, in leading them, in rallying fugitives, in bringing up second lines, reserves, and all the vast variety of duties of the: field. Did he perform any of them at the sortie ? General Miller, colonel Bedel, and lieutenant Lee, tell you he was not with the firs,. brigade. Captain Kirby and colonel Brooke did not see him in action. Captain Irvine, who ti a • versed the whole line, never met with major Gard - r 154 ner. General Brown, colonel Jones, and colonel Snelling, never pretended he was in the action — excepting col. Jones, whotestifi.es he was in battery No. 3, after it was carried, when some spent balls fell around it. But according to the testimony of captain Clarke, he soon retreated. I shall only make one remark in relation to the testimony of major Worth. He was in two actions with major Gardner on the Niagara frontier. He does not pre- send he was ever in danger, or exposed. Bui major Worth refers to the conduct of major Gard- ner at Chrvstler's fields. He then states that the twenty-fifth regiment was warmly engaged, and pursued by the enemy, and that major Gardner was making great exertions to leform and correct the line of his regiment, or in other words it xvas broken and retreating in con- ■ fusion before the enemy, with major Gardner at the head of it ! This is not a very enviable descrip- tion of the only time major Gardner was seen by major Worth on the field, at the head of his corps. It would seem that this retreating at Chrystler's field was so serious a thing to major Gardner, that. it has kept him out of the range of musket shot ever since. He does not state that he rallied the regiment, . jid again led it against the enemy. If such weir ; lie fact, from his friendship for the prisoner, he would not have omitted it. So the fair presump- tion is, that major Gardner and his troops retreated together. I have now, gentlemen, gone through with the different actions of the campaign, in which major Gardner was in the rear of the army. I wish for ibo its honor, and from sympathy to the prisoner, that there was some solitary fact to brighten up the cheerless gloom which surrounds his military cha- racter. But it is all dark and desolate. Every disposition has been evinced to assist him with tes- timony ; but still it is futile and unavailing. At Chippeway, where colonel Towson tells you he ought to have been on the field, he took up his po- sition from half to three quarters of a mile in the rear. He here intended to cover himself under th shelter of his commanding general. That pretext will not avail him, for his duty was in the van. At Niagara, where his general went closer into action, major Gardner, on the pretext of illness, remained in the rear, and under the cover of the hill. At the siege of Fort Erie, he was absent. At the sor- tie, where his duty required him to lead the columns, to direct the field, and to reorganize the troops, he takes up his position out of danger. And to crown the whole, when his duties were assigned to a junior general, and he was directed to carry the order, he could not gather nerve enough to perform it. This is the state of the testimony. For myself, I commisserate this man. I can regret as much as any one, that he should have been bolstered up by artificial praise, to fall at once so low. Major Gardner in his defence, has adverted to many topics, which have not arisen from the evi- dence. He has indulged in invective, for reason- ing was impracticable. I have endeavored to shun his example, and I trust there is not a single re- remark injurious to the prisoner, which has not naturally grown out of the testimony. The story of the prisoner's achievements in the 156 Niagara campaign, is brief and replete with igno- miny. We no where find him performing his ap- propriate duties : — to lead a detachment through the woods at the investment of Fort Erie : — to keep quietly three quarters of a mile in rear of the army at Chippeway, until the enemy had retreated, excepting in one solitary instance : — in going to the front and taking shelter with fugitive Indians and teamsters behind a barn : — and at the explosion of a shell, galloping rapidly to the rear : — to remain under cover at Niagara during the carnage of that dreadful conflict, out of danger and unexposed : simply advancing five rods to a wounded officer, who was retiring to our rear : — to dispute with the Inspector General relative to the right to superintend the prisoners in the rear : — to leave Fort Erie after that fortress was invested, and pass his recess plea- santly in the country, beyond the sound of its cannon : — to keep again in the rear of the troops at the sortie, and out of danger : — when ordered to carry orders into the fight, employing subordinate officers to perform it : — neglecting at Niagara to secure the captured cannon, and at the sortie to re- organize, arid reform, and precipitate the troops upon the enemy's camp in their moment of panic. This is the elorious galaxy of his actions ! These nre the splendid monuments of his renown. — I forgot myself. He attempted to throw upon others the responsibility for his own neglects : — he endeavored, to pilfer from them, the fair exposition of their re- nown ! These objects could not be accomplished without a struggle, and the dissentions it has pro-, ductd, have distracted the army. 157 Gentlemen of the Court, I have now closed the analysis of the testimo- ny ; I shall simply address one remark to you. As it regards myself, I have made out the case I sta- ted. I asserted that major Gardner was a coward — I have proved him so. To me your decision is perfectly indifferent. For aught that concerns my- self, I should be perfectly willing he should be ac- quitted. But let me tell you that the passions of the day are temporary ; truth is eternal. As well might you attempt to convulse all nature, as to im- pede her march; for it is as steady as time, and du- rable as eternity. Simply then have a care to your- selves in making your decision. Acquit the priso- ner if possible. Let all the best sympathies of your nature be enlisted in his behalf. Give to the tes- timony which operates in his favor, if there be any, the best possible construction for his interests. But gentlemen, act righteously. Look to future conse- quences, as well as to the present moment. If you condemn the prisoner without sufficient testi- mony, your own reputations will be involved. If you acquit in a case where the evidence is strongs irresistible and conclusive ; it will hereafter become the subject of the sincerest regret. Weigh well then the testimony in the case. You are bound by the most solemn ligaments which can be impose d between the soldier and his country ; — the man aitd his God ; — your honor and your oaths-. THJL. RKD jus ■ A