DETh^ENCE 
 
 
 OF 
 
 COL, WM. S, FISH, 
 
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 Submitted bv his Counsel, 
 
 MILTON WHITNEY, Esq. 
 
 
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 WASHINGTON, April 11, 1864. 
 
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 OF 
 
 COL. WM. S. FISH, 
 
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 Submitted by his Counsel, 
 
 MILTON WHITNEY, Esq 
 
 WASHINGTON, April 11, 1864. 
 
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GENERAL COURT MARTIAL. 
 
 WASHINGTON, Apuil 11th, 1864. 
 
 In the matter of the United States against Col. William S. 
 Fish, the accused reserving to himself the right to call upon 
 the Court to strike from the record all the testimony offered 
 upon the pait of the prosecution, not followed up by- the pro- 
 per evidence to connect him with the transactions in refer- 
 ence to which such testimony has been offered, provided the 
 same shall be relied upon by the prosecution, asks leave to 
 submit to the consideration of the Conrt the followino- sno- 
 gestions in response to the charges and specifications preferred 
 against him, and on which he has been placed upon trial be- 
 fore this tribunal. 
 
 The charges advanced by the prosecution are four in num- 
 ber : 
 
 1st. "Conduct prejudicial to good order and military dis- 
 cipline." 
 
 2d. "Using false accounts and vouchers knowing the same 
 to contain false statements, for the purpose of obtaining the 
 approval of false and fraudulent claims, against the United 
 States, contrary to the statute in such case made and pro- 
 vided." 
 
 3d. "Violation of the thirty-ninth article of war." 
 4th. "'Conduct unbecoming an officer and a gentleman " 
 To the first charge there are seventeen specifications; to 
 the second charge there are three specifications ; to the third 
 charge one, and to the fourth charge there are five specifica- 
 tions. The third and twelfth specifications to the first charo;e 
 are abandoned by the prosecution, leaving the remainino- fif- 
 teen specifications of the first charge, together with all of the 
 specifications of the remaining 2d, 3d and 4th charges to be 
 passed upon by tlie Court. 
 
 To these specifications, I propose to call your attention, and 
 to the evidence bearing upon them in the order in which thev 
 are set forth in the pleadings Upon the part of the prosecution. 
 
Before proceeding, however, to the discharge of this duty, I 
 crave your indulgence whilst I briefly refer to some general 
 propositions, growing out of my relation to this investiga- 
 tion, and to certain general principles, by which I respectfully 
 submit you are to be governed, in arriving at your final con- 
 clusion in reference to the merits of this cause. 
 
 Early in the spring of 1863, I was detailed to the impor- 
 tant and responsible position of Provost Marshal of the Mid- 
 dle Department 8th Army Corps — my location being in the 
 city of Baltimore, State of Maryland I was fresh from the 
 field of active duty, where I had used my utmost endeavors to 
 discharge the true duties of a soldier, battling for the exis- 
 tence of a country and a Government established by our 
 fathers, and handed down to us as a sacred legacy in trust for 
 our children and our children's children. I brought to the 
 discharge of the duties of that office, no past experience or 
 present practical knowledge of its workings. I entered upon 
 it with but one single purpose, that of serving my country in 
 that sphere according to the best of my untried abilities, and 
 of doing all within my power to assist in putting down the 
 present unholy rebellion. If in the history of my adminis- 
 tration of its affairs, it should be found that I have erred in 
 action, I am confident it will be ascertained, that those errors 
 have occurred in my zeal to serve that country, in whose cause 
 I had earnestly an(l warmly enlisted. The locality in which 
 I was thrown, rendered the duties of the office more delicate, 
 onerous and difficult, than any other locality that could be 
 selected within the territory occupied and held by the Federal 
 Government It was a city in which treason stalked forth at 
 noon day. Traitors swarmed its streets, and a supporter of 
 his Government found himself environed on every side, with 
 deep, cunning, bitter and relentless foes. Secession and south- 
 ern sym{)athy were the fashionable brands of society, the 
 standards of respectability, and the passports to Baltimore 
 favor — no epithets were too vile — man was transformed to a 
 thing, and the soldier of the Union, with the flag of our com- 
 mon country, was the assassin's mark. Subjugated though 
 they had been by the strong arm of the government, they were 
 yet as the wild beast at bay, waiting but for the favorable op- 
 portunity to spring upon the much coveted prey. Its near- 
 ness to the seat of government, its proximity to the rebel 
 capital, the unusual number of troops congregated in and 
 around the city, the large number of people who had embark- 
 
5 
 
 ed in the Southern cause, leaving their friends behind them, 
 and a multitude of other causes, I have not the time to men- 
 tion, all combined to make the position one of extreme trial 
 aad difficulty, as well as of danger. Under these, and other 
 circumstances of an unpropitious character, I entered upon 
 the discharge of the duties of Provost Marshal, and I did it 
 with a full and fixed determination to extend to the Union 
 citizens of Baltimore that protection which they required, and 
 which they claimed, at the hands of the government authori- 
 ties. How I succeeded in meeting the expectations of the 
 the Union portion of the population, and protecting them in 
 the enjoyment of their rights, has been evidenced by the high- 
 ly respectable citizens who have appeared before you. Enter- 
 ing upon my duties, actuated by such motives, and giving 
 them a practical effect in rav official conduct, I was not long 
 in surrounding myself with a band of enemies, who were 
 bent upon my destruction. 
 
 The howl of indignation was raised, the blood hounds of 
 secession were let loose upon me, and ray name became as 
 odiou-* to traitors, as did that of GJ-enl. Butler to the '■^London 
 Times.'' 
 
 As early as the summer of 186">, a combination was formed 
 against me, unheard of efforts were put forth, government 
 detectives were employed and sent from State to State, human 
 ingenuity was exhausted, promises extended, threats made, pro- 
 fessional pride was embarked, ambitious hopes operated as a 
 motive power, envy and jealousy were present in the combina- 
 tion, open hatred and malice were there in disguise, treachery 
 to truth was there, and moving about unseen, was by sign and 
 signal giving direction to the movements, they all labored 
 and toiled, and when the curtain rose, it disclosed to view 
 some wandering jews on a pilgrimage to Washington, who 
 had left the rebel territory on a journey tea foreign land, but 
 who were willing to remain many long months in this the 
 land of their pilgrimage, in order to procure my conviction, 
 that they might recover the money which they had paid to 
 one of their own peculiar class. They came to Washington 
 and made their affidavits. 
 
 There were found detectives who for the sake of promoting 
 their own cause, and winning themselves into government 
 favor, by making a show of diligence and smartness, were ready 
 to turn a willing ear to those whom they would not trust in 
 the most common affairs of life, and from whom they would 
 
turn in disgust with a curse upon their lips, upon any other 
 subject, except one involvine; the honor, truth and integrity 
 of a soldier of the Union. But their labors failed, the iu- 
 trigues of ray enemies fell short of the destined mark, and al- 
 though the results of these extraordinary efforts were in the 
 hands of the government officials six months ago, the material 
 was pot deemed worthy with which to strike the blow, at one 
 whom they knew to have been a true and trusted soldier. 
 
 It remained for treason at home to accomplish what they 
 had commenced. It remained for those who would build up 
 their own foitunes by tearing others down, who sought to sup- 
 plant that they themselves might reach the desired point, and 
 who to save their own necks would place the halter around 
 the neck of their neighbor, conversations were distorted from 
 their true meaning, actions misconstrued, false motives attri- 
 buted, and the faults and short comings of others laid lo my 
 door — and the spring of 1864 finds the work accomplished, 
 I am arrested and thrown into prison, and I call upon the 
 members of this Court individually to say whether within 
 their own experience, either in civil or military life, they have 
 found a precedent for the proceedings which ensued. No (Ef- 
 forts were spared, and in the midst of my enemies, public no- 
 tices appeared, notifying all of the place where they could 
 give in their testimony against me. Lieut. Parker was there 
 with his two oaths, and supported by the certificate of credi- 
 bility of Capt. French. Others were there making their 
 statements under influences of which we know nothing, and 
 upon the question, as to who was the master genius and mov 
 ing spirit of those proceedings, I leave this Court to deter- 
 mine. Months of time and labor have been expended, money 
 lavished like water — the most absurd rumors set afloat, every 
 thing distorted, prejudice, hatred, envy, malice and foul hy- 
 pocrisy have all been called into requisition: a jest hhs been 
 turned into a stern reality, as though I could publish to the 
 world my own infamy. The loaning to my Orderly of a sil- 
 ver watch of the value of $15, in an open and public manner, 
 to enable him to perform his duties, has been construed into 
 an act of fraud, as though I would seek such an avenue 
 through which to enrich myself by plundering others; im- 
 pressions made upon the jaundiced mind have been treated as 
 facts, and he who was detailed as my assistant, and should 
 have bc^n my supporter whilst I was engaged in the dis- 
 charge of my arduous duties, under the garb of friendship 
 
was mousing about to ascertain where he could inflict the fatal 
 stab. The person of my wife was not secure against his in- 
 trigues, a ad the wardrobe of my aged mother was alike made 
 the field of his gallant operations. The country has been 
 scoured from State to State, the services of the most experienc- 
 ed detectives have been called into action, Jew and Grentile, 
 traitors to friends, and traitors to their country, and those 
 without a country and without a God have alike been arrayed 
 against me — the country has been made to ring with the 
 enormity of my offences, society from high to low has been 
 searched, my footsteps dogged from door to door, and their 
 efforts have at last culminated. The bill of indictment is now 
 presented, and though shaped and put in form by legal hands, 
 it carries with it unmistakeable evidence of its paternity, and 
 I stand before you to-day, crippled in my efforts by close 
 confinement, with my lips sealed to meet and answer and ex- 
 plain all that these extraordinary and combined efforts could 
 bring against me. If this was a cause involving dollars and 
 cents, in which five dollars was to be made or lost, the laws of 
 the land would allow me to speak and explain, but when the 
 interests of all I hold dear and sacred this side of the grave 
 are involved — when my reputation as a man and my honor as 
 a soldier is at stake, I am struck dumb, and my lips which 
 alone could afford a satisfactory explanation, are closed. And 
 I ask you the question, if there is a man in the country, hold- 
 ing such a position, who could have his record for such a time 
 made up under such circumstances examined, who would not 
 require his own statements to explain what otherwise might 
 not be understood by those totally unacquainted with the 
 circumstances. Is there an official from the highest to the 
 lowest, who has transacted any amount of business, whose re- 
 cord could be subjected to the one-sided examination of others 
 unacquainted with the history of each case, without requiring 
 a personal explanation, to make clear what otherwise might 
 seem questionable and in doubt, and when that official is so 
 situated as to necessitate reliance and confidence in others, and 
 those not even of his own choice and selection, but those detailed 
 by a superior officer, with what greater force does this sugges- 
 tion apply. I appeal to the experience of each member of this 
 Court and ask him to test the truth of this by reference to his 
 own past actions. If your own individual acts require per- 
 sonal explanation, how careful will you be when you come to 
 examine into the actions of those whom I was bound to trust. 
 
Would you ruin a Quartermaster, because he signs his name to 
 an account in which his clerk may have made an error against 
 the Government ? Would you ruin a member of the Cabinet 
 at the head of either department of the Government, because 
 he signed a warrant made out by his clerk, even if it should 
 turn out that the warrant was illegal ? As well might you 
 send a President of a Bank to the penitentiary for a fraud per- 
 petrated by his Cashier. 
 
 But although I appear before you under these disadvantages, 
 the law allows me to place upon the records of this Court, the 
 solemn asservation of ray innocence. That asservation thus 
 made is by the rules of law and human action, raised to the 
 dignity of a presumption of my innocence. That presumption 
 is evidence and becomes my property, and can only be wrested 
 from me by the production of evidence of such a character, 
 not explainable upon any hypothesis than that of my guilt. 
 For if the evidence brought against a party can be explained 
 upon any other theory than that of his guilt, then the law in 
 its humanity and justice requires that theory to be adopted. 
 
 It is incumbent upon the government to establish by evi- 
 dence the charges made against me, that evidence must amount 
 to proof ; the burden is upon the government, and nothing is to 
 be assumed in its favor and against the accused, and 1 beg 
 leave to suggest, that you are not here as in the trial of a 
 cause involving dollars and cents, to be governed by a pre- 
 ponderance of the testimony, you are not to weigh the testi- 
 mony upon the one side and upon the otber, and to ascertain 
 upon which side is to be found the preponderance and decide 
 accordingly, but you are to grapple with all the testimony in 
 the case, and selecting that upon which you can rely as true 
 and accurate, as the basis of your action, you are to ask your- 
 selves the question, assuming that testimony thus selected as 
 worthy of full credit to be true, can the party be innocent ? 
 Can we explain it upon the theory of his innocence ? If you 
 can, no further inquiries are to be made and the party must 
 be acquitted. 
 
 This legal presumption of innocence is to be regarded by the 
 jury as matter of evidence, to the benefit of which the party is 
 entitled, and where a charge is to be proved by circumstantial 
 evidence, the proof ought to be not only consistent with the 
 prisonei's guilt, but inconsistent with any other rational con- 
 clusion. 1st Greenleaf on Evidence^ Sec. 34. You will I trust, 
 pardon me for detaining you in reference to these general 
 
observations and general principles, but I feel it a duty to 
 myself, and more especially to those dependent upon me, that 
 as the members of this Court enter upon the discharge of that 
 portion of their duty, that is to decide my future destiny on 
 earth, tliat I should ask them to carry with them, and have 
 duly impressed upon their minds, these rules and principles, 
 and so doing, they shall enter upon a careful and critical 
 analysis of the evidence in this cause, remembering at the 
 same time, the appearance of each witness whose testimony is 
 relied upon, his manner in testifying, his opportunities of 
 observation, the probabilities of his statements, the condition 
 of his mind to receive a correct impression or otherwise of the 
 events to which he is called to testify, and all the other cir- 
 cumstances that cluster around a witness in a tribunal of 
 justice, that go to make up the measure of reliability with 
 which his testimony may be regarded. 
 
 \sf Specification. — The 1st specification relied upon, is that 
 I made 'a false unci fraicdulent claim upon the government, for 
 the loss of a certain horse which I claimed to be mine, and 
 which had been lost in the service of the United States, when 
 I knew said horse was the property of the United States, and 
 that my statement in relation thereto was false and fraudulent. 
 The offence charged, and upon which you are alone to pass, is 
 one of a deliberate and predetermined fraud upon my part, 
 any irregularity upon my part or any departure from the 
 strict letter of military law, either by myself or by my supe- 
 rior officer in reference to this matter is not involved in this 
 issue, and upon which you are to pass, the issue made by the 
 allegation, and the plea is one of corrupt intent upon my part, 
 by fraud and deceit to cheat the government. 
 
 This is alone what you are to determine, evidence has been 
 offered to show that after my return from the campaign of 
 1862, I did apply to the department to be paid for the loss of 
 H certain horse. I did this upon the recommendation of the 
 General commanding, and who certified that all of the facts 
 stated in my application were true. No evidence has been 
 offered to show for what horse it was I received compensation. 
 The pleadings state that it was a horse captured from the 
 enemy, and was the property of the United States ; and evi- 
 dence has been offered to show that a horse captured at Moor- 
 field, Va., was in my possession, but no evidence whatever 
 has been adduced to show that to have been the horse for 
 which I was paid. 
 
10 
 
 *»"'Oii the contrary, Capt. French, the onl}' witness asked for 
 the purpose of identifying tliat horse with the one for which 
 I was paid, states, " that lie always understood it as another 
 horse for which I received compensation, that I had another 
 stallion at one time, and he thought that was the one I got 
 paid for." But admit, if you please, everything ; that it was 
 the same horse for which I received pay, what is there in tlie 
 evidence to justify the charge that I knew the horse to be the 
 property of the United States, and that by fraud and deceit 
 I obtained pay for it ? I'he evidence is conclusive, that the 
 horse was given to me by the Major commanding the batallion, 
 in place of my own, which had been rendered useless by con- 
 stant labor, and abandoned, and the stallion was shot by the 
 enemy and likewise abandoned. The officer commanding, did 
 the same thing with the other officers who weie situated like 
 myself. 
 
 This occurred two years ago, and if those who have been 
 hunting and hounding me, spending their time and money to 
 bring me to disgrace, had shown an equal zeal in their coun- 
 try's cause as they have in this, had broken down as many 
 horses as I have done in the service of my country, had ridden 
 as many miles as I have, by night as well as by day, and 
 shared with me the dangers and perils of that campaign, the 
 valuable time of tried soldiers, whose services are loudly called 
 for to again meet the foe, would not now be consumed in 
 making an examination, into the propriety of the superior of- 
 ficer upon the field in active duty, making such arrangements 
 as he thought proper in the mounting of his subordinates, 
 whose services he required at every step. There are those who 
 think they can sit by their parlor fires and fight battles hun- 
 dreds of miles distant, command armies, direct generals, and 
 order movements. If the battle is won, the credit is their's, 
 they planned a:id fought the battle ; if lost, they share no re- 
 sponsibility, it was fought against their judgment. So with 
 certain individuals who may sit alone in their own rooms, 
 with a book of Regulations before them, and talk very mathe- 
 matically as to what should be done under certain circum- 
 stances, and yet, nine chances out of ten, put them in the 
 same circumstances, and you would find them much wider of 
 the standard, than he whose conduct they are criticising. To 
 judge of a man's action, you must throw yourself into his posi- 
 tion, and judge of him from that stand-point. But I do not 
 desire to dwell upon this specification longer ; by whose in- 
 
11 
 
 diistry it has been brought forward at this late day, lam una,^ . 
 ble to say. All I can say is, that I had a most valuable horsel 
 when I entered the service — provided myself with two others 
 at my own expense — with the approval of my Commanding' 
 Greneral, have received pay for one, and the government has 
 received the benefit of the otliers. 
 
 '2d Specification. — The 2d specification charges that I re- 
 ceived into my possession a certain clustered diamond breast 
 pin, seized from alleged blockade runners, by United States 
 detective officers, and did, in February, 1863, wrongfully 
 convert the same to my own use. Before you proceed to ex- 
 amine the evidence upon tliis point, I ask you to carefully 
 note the nature of the charge. To my mind, it unfolds to a 
 great extent, the manner in which these charges have origina- 
 ted No time specified wlten I received it into my possession, 
 neither from whom it was seized, when seized, where or by 
 whom it was seized, but yet a diamond pin had been seen in 
 my possession. 
 
 Capt. French had talked with me about it, and without any 
 facts, the presumption is jumped at that I obtained it by 
 fraud. No facts, no data, no evidence to go upon, and hence 
 the generality of the charge ; no pretence whatever that any 
 diamonds were seized before the month of March ; no person 
 produced wlio made any such seizure; no person produced 
 from whom any such seizure was made ; nor any person who 
 ever had any knowledge of any such seizure; but still a pin had 
 been seen in my possession and that was sufficient. Nothing 
 more was necessary with those who would attribute a false 
 motive to any action, and that was the position in which I 
 was placed. If I gave food to a hungry child, they would say 
 my motive was to choke it ; if I released a party, it was fa- 
 voritism ; if I held him, it was tyranny ; if I held a party till 
 I could satisfy myself as to the merits of the case, i held him 
 for an improper motive ; if I released him after being satis- 
 fied, I did it for a consideration. Everybod}' understood the 
 duty of Provost Marshal except myself ; every one knew 
 the merits of each case except myself. If I boarded at the 
 Eutaw Hoase, where the entire staff and the Greneral himself 
 boarded, my expenses, in the language of Ca[)t. Parker, must 
 have been, as he knew of his own knowledge, twice the 
 amount of ray pay ; and therefore, if I had a d'amond pin, it 
 must have been seized from some unknown blockade runner, 
 at some unknown time, at some unknown place, and by some- 
 
unknown person, and hence the charge found in the 2d speci- 
 fication. 
 
 The evidence offered in relation to this specification is more 
 fatal to the prosecution than the specification iiself. Capt. 
 French is called as a witness to substantiate this specification. 
 He is asked in reference to a conversation he had with me 
 about a cluster diamond pin, and this portion of his testimony 
 exhibits his volunteered effort to condemn me. He goes on to 
 narrate a conversation he had with me, in which I said I was 
 going to send it to New York and get paste diamonds put in, 
 and the real ones consolidated in a ring, and he thinks I after- 
 wards told hira I had it returned to me because I was afraid 
 to have it done. There is no specification charging me with 
 any ofience in connection with this, but I did not object, be- 
 cause I knew the facts in reference to this matter — and I 
 knew it was only necessary to give some people sufficient rope 
 and they would become their own executioners. Unfortun- 
 ately for Capt. French, there are other facts upon the record 
 and other witnesses in reference to this diamond pin beside 
 Capt. French and his testimony. He goes on to say I knew it 
 was captured property ; he did not know who cajttured it, 
 when captured, from whom, or anything about it, only that it 
 was captured by a detective — no detective is introduced to 
 show the capture, and unfortunately lor Capt. French no dia- 
 mond pin was ever captured by any detective whilst I was 
 Provost Marshal, and therefore no evidence was introduced 
 or could be introduced to prove any such capture. The only 
 pins in my office as captured property were the two taken 
 from Gabriel Meyers at the Point of Rocks, and these were not 
 captured by any detective, but by Provost Marshal Irwin of 
 that place, and this was in the month of March, whilst Capt. 
 French saw the cluster pin in my possession in the month of 
 January preceding. The two rings and two pins captured 
 from Meyers at the Point of Rocks, the Court will find in my 
 report to the Greneral, and accounted for in my account offer- 
 ed in evidence by the prosecution. 
 
 Alike unfortunate for Capt. French is it in reference to the 
 cluster diamond, that the prosecution has produced another 
 witness in the person of Col. Almey. He saw the pin in my 
 possession in the month of January, 18fi3, and instead of my 
 being anxious to send it by him to New York to have paste 
 diamonds inserted, he tells you it was at his own suggestion, 
 and in consequence of his representations that I was induced 
 
13 
 
 to send it to New York, aad that I had it returned to me not 
 because, as Capt. French would have you believe, I Avas afraid 
 of the paste operation^ but I had it returned on account of the 
 valuation put upon it by tlie party there ; as also my letter 
 shows, offered in evidence by the prosecution. 
 
 The prosecution also proved by Col. Almey my statement 
 as to how I came by that pin, they have not disproved that 
 statement, and having made it their own evidence, are bound 
 by it. Kead from Roscoe's Criminal Evidence, p. 51. 
 
 We also have the testimony of Adjutant Walker, who saw 
 this same pin in my possession before I entered u})0n the du- 
 ties of Provost Marshal, and who received instructions from 
 me, when in Virginia, long before any mention was made of 
 this pin, as to something being sewn up in my ])ants that 
 would furnish me relief in case I was captured. Fortunately 
 was it for me, in this instance, that I have not to rely upon a 
 total failure of the prosecution to make out this charge, but 
 have been enabled to prove conclusively a negative to the 
 whole matter. No man is bound to prove his innocence ; his 
 guilt must be established beyond all doubt, and until that is 
 done, he is not called upon to open his lips. Col, Almey tells 
 you that never a word passed between us in relation to having 
 paste diamonds substituted ; his advice to me was to procure 
 for it a first-class stone, and it was in consequence of his ad- 
 vice, he tells you, I sent it to New York, and failing there, I 
 afterwards had it done by Mr. Meredith, in Baltimore. 
 
 ith Specification. — The 3d specification having been aban- 
 doned, the next in order is the 4th, which charges that in or 
 about the month of April, 1863, I caused certain goods to be 
 seized, belonging to Mrs, Otey and Miss Selden, and received 
 the same into my possession and wrongfully converted a por- 
 tion of the same to my own use, and that all of said goods 
 were libelled, and that I neglected to deliver up or account to the 
 proper authority for a portion thereof. As to what goods were 
 actually libelled in this case does not appear from the evidence 
 introduced, whether they were libelled as alleged in the specifi- 
 cation is not proven, there is no evidence of this fact. Mr. 
 Thayer called for the prosecution is not able to state. The 
 papers are lost. He talks of discrepancies existing but what 
 they were, he is unable to say. There seems to have been 
 discrepancies from first to last in reference to these goods, 
 every witness called has testified to discrepancies, but in what 
 they consisted no one is able to say. The difiiculty in the 
 
14 
 
 matter was t])at the transaction itself ori<j:;inated in fraud upon 
 the part of the ladies named, and that fraud has caused con- 
 fusion and discrepancies from the betjjinning to the end of this 
 transaction. If those papers are lost and they are unable to 
 prove what goods were libelled, I am not to suffer. The fault 
 is theirs, not mine. It is sufficient for me that they have not 
 the evidence to show what goods were libelled^, and therefore 
 cannot sustain the allegation that they were all libelled. The 
 charge that I refused or neglected to deliver up a portion of 
 the goods to the proper authorities is alike unsustained. The 
 first proceeding was an information filed by rae in Court to 
 obtain condemnation of these goods. The witness, Mr. Thayer, 
 is asked the question, "Had Ooi. Fish been personally called 
 upon to furnish information in this case?" The Court must 
 readily perceive the bearing of the question, that I was an un- 
 willing actor in the bringing of the goods into Court, as 
 though I had apprehensions and fears, and only at the solici- 
 tation of the authorities had I placed tliis matter before the 
 Court. Now mark the answer : " He had not ; the case was 
 commenced in pursuance of an unsolicited report from the 
 Provost Marshal's office." Thus placing myself in the atti- 
 tude of voluntarily taking into Court a lot of goods out of 
 which I had been pilfering, when I well knew they would be 
 met by the bills of purchase held by the parties who claimed 
 the goods. Instead of showing any neglect on my pait, or 
 unwillingness to deliver up these goods, the evidence shows 
 that I was the first mover in bringing them into Court, and 
 anxious that they should be proceeded against. Although 
 this may be a technical objection to the charge as set forth in 
 the specification, and fatal to the same, 1 do not desire to stand 
 upon any such ground I wish all the facts to be canvassed, 
 and let us therefore examine carefully the evidence bearing 
 upon it. The case of the prosecution is sought to be main- 
 tained upon two grounds : One, the power of identity ; and 
 the other, the testimony of Capt French, as to what he calls 
 the substance of a conversation. But suppose we admit the 
 identity and the substance of the conversation for the sake of 
 the argument ; su|)pose we admit that the goods found in 
 Connecticut and Ohio were the same as those belonging to 
 that lot ; let us admit it now for a moment, if you please, in 
 order to discover in what position the prosecution would stand 
 in a legal point of view, even with such a state of facts ; sus- 
 picions, opinions, probabilities are to convict no man — you 
 
15 
 
 may have your suspicions, probabilities and ojtinions — testi- 
 mony alone can cowy'vt. We are to be governed by certain 
 general and well understood rules and principles of Imman 
 actioA — those which the experience and observation of men 
 for centuries have established as safe general rules, by which 
 man is to be governed and controlled in his intercourse with 
 his fellow-man, and upon which human action may with 
 safety be based. These principles are general in their appli- 
 cation ; they become as much law, by which society is to be 
 governed, as the act written upon the statute book ; they are 
 to be applied to every one, and its violation in any one case, 
 is a far greater injury to the cause of public justice tban the 
 discharge of a party, however guilty. In the one case, the 
 guilty may escape, but the uniformity of the rule by which 
 justice is to be administered to any one is maintained. In 
 the other case, the guilty may be punished in that individual 
 case, but the uniformity of the rule b}' which both you and I 
 are to be juaged, is violated, the safeguards of society are de- 
 stroyed, and the trial of life, liberty or reputation becomes 
 more a matter of hazard or chance, than the decision of facts 
 upon well-known and well-settled principles of action, which, 
 by their wisdom, uniformity and universality, become public 
 safeguards by which every individual member of the commu- 
 nitjt is to be protected in the enjoyment of his rights, and 
 hence the origin of the admirable French rule in the adminis- 
 tration of justice, which allows a jury, whatever may be their 
 moral convictions as to the guilt of a party, but where legal 
 requirements have not been met in order to enable them to 
 maintain the inviolability of the rules to return a verdict, not 
 saying that the party is not guilty, but not proved guilty. 
 Now let us go far beyond all tliat can be claimed in tliis case. 
 (Suppose a robbery has been committed, and the property stolen 
 is afterwards found in the actual possession of a party accused 
 of the crime of the robbery, what is the rule by which he is to 
 be adjudged and which the wisdom and experience of our 
 fathero has established as applicable to every one in his situa- 
 tion ? 
 
 If the possession is immediately after the robbery, the 
 party may be called upon to explain his possession of the pro- 
 perty proved to have been stolen, but not otherwise ; and in 
 this connection let me read to you, without quoting it at 
 length, the law as laid down in Roscoe's Criminal hvidence. 
 page 18. Thus, where stolen property was found in the pos- 
 
16 
 
 session of a party sixteen months afterwards, he could not be 
 called upon to say anything about it, no presumption what- 
 ever could be raised against him. But coming to the present 
 case, and admitting all that could be claimed, that the gpods 
 found in Ohio and Connecticut were one and the same goods 
 with those seized as alleged ; sup[)ose I saw proper to stand 
 here to-day and say, that the goods found in those places, one 
 year afterwards were the same taken from the parties named, 
 would it come up to the standard required? Could it come 
 within the rules established by which 3'ou and I have a right 
 to be governed? I talk not of suspicion, probability or sur- 
 mise ; but would it furnish that legal testimony which these 
 well established and universal rules and principles imperi- 
 tively demand, and which, it violated, jeopaids the right of 
 every man ? And let us look to the record in this case, and 
 see if I am not sustained by the authority of the prosecution 
 itself. Wlien the testimony was oifered of the finding of these 
 goods in Ohio and Connecticut, I caused to be entered upon 
 the record the following statement : 
 
 Page 34. — " Counsel for accused remarked that he did not 
 object to this testimony, supposing it was the intention of the 
 prosecution to follow it up by evidence connecting Col. Fish 
 with the removal of these goods to Mystic and Elyria, but if 
 not so connected, would be objected to." To which the 
 Judge Advocate re[)lied as follows : 
 
 " The Judge Advocate stated that he proposed to connect 
 Cql. Fish with the unlawful taking of these goods." And 
 has there been a tittle of such evidence introduced ? It is as 
 barren of such testimony os it is to bring home to my knowl- 
 e<^lge the contracts made by Ullman with parties outside, and 
 by which he rol)bed them of their money. The theory upon 
 which the persecution started out was, that when those goods 
 were examined, a portion of them afterwards seized were 
 taken by me and placed in my private drawer ; that I then and 
 there formed the design ot pilfering those goods and appropri- 
 ating the same to my own use. And notice hoAv skilfully 
 executed was the testimony of Capt. French upon this point. 
 Why did he not tell you frankly, and without reserve, all 
 that did occur upon that occasion and the reasons for it ? He 
 is asked, " Did you see Col. Fish do anything with any of the 
 goods?" He answers, "Yes; I saw him lay some down at 
 the end of the trunk, and afterwards put them in his drawer." 
 In what an ominous manner the testimony was given, as 
 
17 
 
 though, there was something sinister in the .act,, which after- 
 wards turns out to have been an act of negessity, performed 
 by myself and others present. But I shall have occasion to 
 comment hereafter upon the testimony of this witness in this 
 connection. The point to which I now desire to call your at- 
 tention to, is the entire absence of the testimony that was an- 
 nounced would be oifered, and whicii would be necessary to 
 make the other testimony competent and admissable, and to 
 connect me with the unlawful taking of tliese goods. Capt. 
 French had traced these goods, as he supposed, into my pos- 
 session, with the exception of the waist, which has never been 
 so traced. This for a wary man like himself was sufficent ; 
 but unfortunately for him, they are traced out of my posses- 
 sion, and all the circumstances connected with them fully and 
 clearly explained. Now, for instance, let us take the article 
 of the velvet waist, about which there has bjen so much said. 
 Taking with us the rule, which is universally admitted, that 
 if there is any other theory ujjon which the facts can be ex- 
 platined other than the guilt of the party, that theory must be 
 adopt d,. 
 
 I am willing to reverse the rule at this pointy and ask you 
 how th) testimony in reference to that article can be possibly 
 explained upon the theory of my guilt. I know it is not ne- 
 cessary for me tr> present my case to you upon any such 
 ground or to assume any such duty, but my wish is to test 
 the evidence upon this question of unlawful taking. No wit- 
 ness ever traced that article into my possession, not even into 
 my drawer — but I have traced it, and we have the combined 
 testimony of those present, Lieuts. Stirling, Morris and VV al- 
 ker, and private Dunning, as to what was done with the waist. 
 They all tell you, there was a discussion upon the point whe- 
 ther it had been worn or not, for it was upon that point 
 hinged its destination. That discussion terminated in the 
 conclusion that the article liad been worn, and it was ac- 
 cordingly placed in the small trunk where the made up arti- 
 cles were put. After the goods had been sorted, and the 
 goods to be returned to the parties determined on, and a box 
 sent for, I left for dinner; when I returned the work was com- 
 pleted, and the trunk containing the velvet waist had been 
 locked and removed, taken charge of by Lt. Sterling and by 
 him delivered to the ladies on their carriage, in the same con- 
 dition as when he received it when I left for dinner. How, 
 where or when, then did it come into my possession? How, 
 
18 
 
 when or where could it have come into my possession ? Have 
 I not reversed the rule and shown that not only is the evidence 
 consistent with the theory of my innocence, but that it is 
 totally and clearly inconsistent with the theory of my guilt, 
 Th6 same remarks are also applicable to the other goods 
 placed in the drawer. You have the evidence of the reason 
 why they were placed there, and the evidence of their re- 
 moval, packed in a valise, marked with a card Otey and Seldon, 
 by the very man who did it, and sent to the contraband room, 
 and this valise as the Court will remember did not contain the 
 black velvet waist. Now from this testimony which constitu- 
 tes the whole upon this point, where can you devise the evi- 
 dence connecting me with the illegal taking of these goods, 
 which it is admitted, is necessary to make the evidence of their 
 seizure in Ohio and Connecticut admissable against me, and 
 admitting the goods seized there, one and the same with those 
 in the office, and I do not admit that the goods seized in Ohio 
 and Connecticut are the same as those now shown here. I 
 know not what intrigue may have done in this respect. There- 
 fore I say, and I say it without fear of successful contradiction, 
 that you may admit if you please that the goods taken one 
 year afterwards were the identical goods seen in the office, 
 still I am not brought within the admitted rule, and the 
 prosecution has not done what it proposed to do, in following 
 up that testimony to remove my objection to its admissibility. 
 But however conclusive this would be of a final result on this 
 specification, I do not desire to place myself before this Court 
 upon any one portion of the case. It has not been my desire 
 by objections, to exclude anything that could be brought 
 against me; it is not now my purpose to avoid the just and 
 proper effect of all the evidence. Let us then for a moment 
 consider the evidence of identity. Independent of the hand- 
 kerchief which is explained, and the waist which is proved to 
 have been given up, we have the testimony of Mr. McCoy 
 and Dunning. 
 
 The testimony of Mr. Dunning as offered by the prosecu- 
 tion, and found on page 35, &c., is important in many 
 respects. He says, the trunks were opened, goods examined 
 and an invoice taken, (precisely what Capt. Morris says I was 
 engaged in doing,) after they were examined and repacked, 
 the trunks were locked. He further states as follows on page 
 44 of the record, " I recollect shortly after the goods had 
 ** been examined, and Col. Fish had given orders to re-pack 
 
1%. 
 
 ''them, he left for his dinner; and from the time the goods 
 " were opened to be examined, till Col. Fish left for his diu- 
 " ner, I saw no goods abstracted, and the goods were finished 
 *' re-packing and placed in charge of Lieut. Sterling." 
 
 This evidence the Court will perceive, agrees in its main 
 particulars with the exception of that of Capt. French, l^pon 
 the question of identity, standing by itself, his testimony is 
 unimportant. He does not undertake to identify. Speaking 
 of the shawl, he says, "There was a shawl something like 
 that, but whether the same pattern I don't know." Again, 
 *' I recollect seeing a piece of silk, whether made up or not I 
 can't recollect, something of that description, &c." " I mean 
 to say that those goods are similar to some of those which 
 were in the trunks." '• Those I mention particularly I re- 
 cognise as similar," "There are thousands of goods like 
 patterns, and I could npt swear positively, and I wish to be 
 understood that those goods I have mentioned are similar in 
 appearance to those I saw in the trunks, and that is the ex- 
 tent to which I would go on the question of identity." But 
 whilst the testimony of this witness, standing by itself, is of 
 no consequence as establishing identity, it is of great import- 
 ance when taken m connection with the witness McCoy's tes- 
 timon)'', and it will serve as an apt illustration of a general 
 remark I desire to make upon the subject of identity. 
 
 We are to recollect that the same goods are exhibited to the 
 two witnesses, they are the same subject matter of identity. 
 Their examination proceeds upon the theory that they both 
 saw them at the same time in i863, in the same trunks, and 
 in the same condition. Bear this in mind carefully. McCoy 
 saw them at the house in the trunks ; Dunning saw them in 
 the same trunks in the same condition, therefore they may be 
 said to have seen them at the same time. No cliange what- 
 ever had taken place in the articles — the subjects of identity 
 is the same. These two parties are now shown certain goods 
 upon the theory that they are the same goods as seen by them 
 at the same time in 1863, and now comes the examination. 
 First, Mr. McCoy: — " The granadine dress I have seen ; it is 
 made up now, it was not then ; they were in the original 
 pieces." Mr. Dunning speaking of the rep silk. "Was it 
 in its original piece?" Answer: "I thinR not." "Does 
 your answer to the last question apply to this that you call 
 the grenadine?" Answer : "Yes, sir ; the granadine, among 
 other goods, was either made up in fuller cut and basted, &c." 
 
20 
 
 Mr. McCoy question. "In what condition was the black 
 rep silk when yon saw it packed?" Answer: "It was a 
 whole piece." Mr. Dunning: "I think the black silk rep 
 was cut and basted ; I am not certain whether it was made 
 up or whether cut and basted ; it was not I think in its orig- 
 inal piece." "Mr. McCoy, state which of the articles now 
 shown you were made up at the time they were packed in the 
 trunk." Answer: " The velvet waist." Question: "Was 
 anything else made up?" Answer: " No, sir " Mr. Dun- 
 ning : " There were three or four patterns that were cut and 
 basted, but whether this (the black srlk one) was finished or 
 not I am not able to say." Let us now suppose a boot was 
 produced before this Court for identity ; Mr. McCoy is asked, 
 " Did you see that in February, 1863?" " I think so; the 
 material is similar." " Mr. Dunning, did you see this in 
 February, 18fi3 ?" " I did." "Mr. McCoy, in what condi- 
 tion was it when you saw it?" "It was a side of upper lea- 
 ther." " Mr. Dunning, in what condition was this article 
 when you saw it ?" "It was a boot." What would you 
 think of the identity ? And yet they stand upon the same 
 footing in relation to the present question of identity. They 
 are both speaking of what they suppose they saw at the same 
 time, and one puts it in the original piece and the other in 
 dresses either cut and basted or fully made up, but not in the 
 original piece. So much for a comparison of this testimony. 
 Now examine for a moment the testimony of Mr. McCoy, 
 standing by itself, and when you come to examine it carefully 
 and reduce it down to its true meaning, it amounts to noth- 
 ing more than Mr. Dunning's. He would have you believe 
 he was an expert. And why ? Because he is a wholesale 
 dealer in woolen goods by the case. He seems to have been 
 the especial favorite of these ladies, and attended to tlieir mat- 
 ters with extraordinary minuteness. He could tell you the 
 value of the missing articles without being able to say what 
 was missing, what was returned, or even the number of jjack- 
 ages returned. 
 
 He and Mrs. Miller had talked the matter over. His ground 
 of identity, in reference to the goods, was something new and 
 rather interesting to any one except himself, and tlie palor of 
 his face, when endeavoring to extricate himself from his diffi- 
 cult position on that subject, was, to my mind, sufficient evi- 
 dence that he was endeavoring to give a reason about some- 
 thing of which he knew nothings like every other person who 
 
21 
 
 undertakes to give a reason for an absurdity for which no 
 reason can be given. 
 
 Mr. Miller, the relative of one of these ladies, and at whose 
 house they were stopping, and whom it is to be presumed 
 would take as much interest as Mr. McCoy, and who saw the 
 goods both before their seizure and after their return, when 
 asked the question he frankly states, " The only thing that I 
 recognise is a handkerchief. ' ' He was living in the same house 
 where the ladies were and the goods both were. He had vastly 
 greater opportunities of knowing all the facts connected with 
 the goods than Mr. McCoy. He examined them and noticed 
 there were some missing ; but testifying, as he knew every 
 man of judgment would testify, he says, " The only thing I 
 identify is the handkerchief, and that only from the initials 
 marked on it." How these ladies came to Mr. Miller's does 
 not appear. Mr. Miller himself was surprised to find them 
 there, and the first question he asked them was if they were 
 there by any authority. Mrs. Otey was a stranger to the 
 family, and from this testimony of Mr. Miller, and from the 
 fact that Mrs. Otey has since been arrested and is now in 
 charge of the Provost Marshal of Baltimore, as the papers in- 
 form you, with her goods again seized, I leave you to infer 
 their character and their business. How M-r. McCoy came to 
 be at the house, and so attentive to these ladies, does not ap- 
 pear. That is one of the unexplained facts with which this 
 case abounds, and the secret of which we may never know. 
 Whether he was there as an expert in packing, to enable tliem 
 to get the largest quantity of goods in the smallest space, does 
 not appear ; but he certainly must have been a professional 
 packer, as the entire force of the Provost Marshal's ofiice 
 were unable to repack them in the same space But from his 
 own statement he was constant, both in season and out of 
 season, in his attentions upon them. If the prosecution them- 
 selves had any reaZ confidence in the identity of these goods, 
 why have they not furnished you with the testimony of re- 
 spectablC;, high-standing merchants in Baltimore, from whom 
 they were purchased. If there were any means to identify 
 these goods, those who sold them would have it more clearly 
 within their power to settle this question of identity than any 
 other parties, and strange to say not one of them has been 
 called, but the whole matter made to rest upon the testimony 
 Of Mr. McCoy, who, from first to last, has appeared as the 
 factotum of these ladies. The witness McCoy also talks about 
 
22 
 
 tlie letter '' F," as the private mark of Hamilton Easter. 
 Why not produce Hamilton Easter? Simply because if the 
 Court will look at the gloves they will see that the letter "F" 
 is the manufacturer's mark, and put there by him as a part of 
 the entire mark on the glove. He first says it is the private 
 mark of Hamilton Easter and then says it was a mark desig- 
 nating size, and that he took notice of it because it was ex- 
 actly his size. You will recollect the size of this witness' 
 hand, and no one would accuse him of having a lady's size, 
 and how the letter "F" on a lady's glove could be exactly 
 his size, I am unable to say. He says he looked and saw the 
 letter '' F " on the gloves at that time, and *' that was his 
 size exactly. " He then immediately following says " he 
 looked at the number to get his size," and when asked by the 
 Court what the figure " 3 " means on the gloves, he answers, 
 '* I do not know, I never noticed it before," although he had 
 stated before that he had examined them very carefully^ as 
 they were the first he had ever seen. His appearance, when 
 examined in reference to these gloves, was that of a man who 
 undertakes to give a reason for a thing that will admit of 
 none, and the more he endeavored to explain, the more em- 
 barrassed he became. Why not have produced the best tes- 
 timony the case admitted of, and why exclude that, and re- 
 ly upon the special champion of the ladies, whose profes- 
 sional knowledge of silks and gloves is derived from dealing 
 at wholesale in heavy woolen goods. 
 
 The handkerchief I did mention to Capt French ; be tells 
 you so ; and I did tell him I feared that on account of that, 
 my enemies would say that I had taken goods home. The 
 liistory of that handkerchief is brief. Gen. Schenck tells you 
 it was in his room ; that as I was about retiring for the night, 
 he handed it to me to take away. Adjutant Walker saw it 
 on my bureau ; from there it was placed with my articles by 
 the servant in the drawer, and in putting ray wearing apparel 
 into my trunk, when I was taken sick and relieved by fur- 
 lough, that went with the other apparel into my trunk, and 
 I never thought of the article from the time I put it on my 
 bureau, till, in looking for a handkerchief at my home, to 
 my surprise found this among the number. I then gave its 
 history, and yet the prosecution would have you believe that 
 a man, who has earned an enviable reputation for honesty 
 and integrity, through whose hands thousands upon thous- 
 ands of dollars have passed without a farthing missing, 
 
would wilfully aud corruptly pilfer a pocket handkerchief, 
 carrying with it the very earmarks by which it could at any 
 time and place be identified. It was in reference to this that 
 I said I was afraid my enemies would make a handle, and had 
 it been in reference to anything else, why did I not relieve all 
 danger by removing the goods from my wife's possession 
 when she came to Baltimore, and when I knew this charge 
 had been brought against me. 
 
 There remains but one other matter to consider in reference 
 to the question of identity. Unexpectedly to anyone, after 
 the Court adjourned to await the testimony of Lt. Sterling, 
 who was sick, and Capt. French, who was absent, a new 
 witness was introduced, which seems to have been the re- 
 sult of the diligence of Lt. Parker, as that is the first time 
 Lt. Parker made himself visible in this case in any other 
 capacity than as a witness. The name of no such witness had 
 ever been given to me — none such was upon the list. She 
 appears for the first time after the adjournment. I do not 
 wish to dwell at length upon her testimony. If she had said 
 she could identify it from its peculiar style, being one of her 
 own cut and fashion, or given any peculiar reason why she 
 could identify it, there might have been some plausibility 
 about it, but she says no such thing. At first when ques- 
 tioned, she said she generally sewed on the trimmings to any 
 thing particularly nice, but when pressed for her reason of 
 identifying this, she for the first time recollects that in point 
 of fact she sewed on the these trimmings, nothing unusual in 
 the sewing, and not even recollected by her till pressed for a 
 reason, and when finding it necessary, like Mr. McCoy, to 
 give some reason, lights upon one the least calculated of all 
 others to furnish a reliable ground for identity. 
 
 I might detain you by some general remarks upon the 
 question of identity, its unreliability and insecurity, and cite 
 from the various articles that have been written upon this 
 subject from time to time, and from the various cases in which 
 the greatest injustice has been committed growing out of mis- 
 taken identity. I will only say that I am sustained by all 
 the writers upon the subject in asserting, that from no one 
 cause alone have so matiy people been wrongfully deprived 
 of their life and liberty, or so great public wrongs commit- 
 ted, as that from mistaken identity. And if Miss Ressler is 
 right in thinking she made this for these ladies, it is proved 
 by four witnesses, that the one seized was returned or placed 
 
in the trunk and put in charge of Lt. Sterling, who says he 
 delivered it, and not a yard of velvet is mentioned in any in- 
 ventory produced here of these goods. 
 
 Capt. French is asked to state, " Did you see Col. Fish 
 do anything with any silks?" He answers, " He laid them 
 down at one end of the trunks, as though there was some- 
 thing unusual done in reference to those particular silks." 
 And yet when cross examined, the silks were shown to have 
 been treated precisely as all the balance of the goods, and 
 the only way in which they could be disposed of, as he was 
 compelled to state When questioned again, he states that 
 *' he (Col. Fish) afterwards put them in a drawer of his 
 desk," as though I had a sinister motive in so doing, and 
 evidently desiring to convey the impression that I was then 
 in the presence of all these witnesses, committing the crime of 
 larceny of these articles. He is then asked in reference to a 
 pretended conversation he had with me in relation to those 
 goods. I ask you to note his evidence upon this point and 
 say, whether it is legal or competent evidence to affect the 
 rights of any man. He ''has an impression that the sub- 
 stance of the conversation was that 1 admitted that certain 
 goods belonged to this lot." Are any man's rights to be af- 
 fected by such evidence? Who is to be the judge of what 
 constitutes an admission, the witness or the Court? Who is 
 to pass upon the conversation, and what is meant by it, what 
 bearing it ought to have, and what should be its proper con- 
 struction and interpretation ? He is not here to pass his 
 judgment. He is here to state facts upon which you are to 
 pass your judgment. He is not here to play the part both of 
 a witness and a judge, and he has no right to usurp the 
 functions of a judge, and to put his interpretation upon what 
 he understood was said at the time, and his interpretation of 
 what that meant. Suppose a man to be upon trial for ob- 
 taining money under false pretences, and a witness should 
 come upon the stand and say the prisoner admitted his guilt 
 and stop there, could there be found a judge or jury who would 
 act upon said evidence? Would they not say, " state what 
 he said to you, it is for us to determine whether it was an ad- 
 mission or denial. Guilty men are not apt to admit their 
 guilt — let us know what he said^ and we may put an entirely 
 differant construction on it from yourself. We are made the 
 judges, not you." Let me ask you to pause and consider for 
 one moment what you are asked to do. You are asked to 
 
. 23 
 
 condemn me upon what I told Capt. French, without having 
 before you one word I did fell him. Whose life could not be 
 sworn away if such testimony as this was to be acted upon ? 
 I care not who may be the witness, however pure, honest, in- 
 telligent and unprejudiced he may be, it is not legal or com- 
 petent testimony, and to act upon it would be to overturn the 
 principles of law, violate every principle of human action and 
 place the life, liberty and property of man at the mercy of his 
 neighbor ! Singular to say, he is unable to fix the time or to 
 remember one single ivord I said. All he can say is this : 
 '* That the impression on his mind is that the substance of 
 the conversation amounted to an admission." I envy no man 
 his position who volunteers to blast his neighbor's reputation 
 in such a manner; eager indeed nmst he be, who would resort 
 to such a method to carry his point. 
 
 I used the word volunteer, because he must have done it, as 
 he says no one was present, and he must have volunteered the 
 communication to some one. After being asked as to what 
 expressions I used, I put to him the question, *' Do you re- 
 collect the word handkerchief was used in that conversation ?" 
 and for the first time his slumbering memory seems to have 
 been arrested and he answers^, * ' I think the word handker- 
 chief was used." How used — in what connection — what 
 bearing had it upon the subject ? But he is unable to tell 
 you. " Did I not state that I was fearful that in consequence 
 of the handkerchief with the initials upon it, my enemies 
 would construe it that the goods were the same as belonged 
 to that lot ?" He has no recollection, but yet I did use that 
 word. He says, " Yes I did use it and explained to him how 
 it came there." This is I presume what he calls an admis- 
 sion. In this connection let me call your attention to a re- 
 mark or two in reference to human testimony. You may 
 havH" more confidence in it than I have, but I am speaking to 
 men of experience and observation, and to that I appeal. If 
 you were asked to construe a conversation that you never 
 heard, or a statement made out of your presence or hearing, 
 would you not want to know the manner of speaking and all 
 the circumstances surrounding and connected with it? Are 
 not those circumstances oftentimes more important in giving 
 construction to the language and meaning thereto, than the 
 language itself? Turn a joking or playful remark into a 
 matter of earnest and you could hang eight-tenths of the com- 
 munity . Put a question in the form of an assertion, though using 
 
26 
 
 the same language, and you will entirely change the mean- 
 ing. Change even the emphasis or remove the proper punc- 
 tuation and what was intended to be one thing will be found 
 to be another. If when you are called upon to construe and 
 give effect to a conversation you could have the exact words 
 used, the manner and tone in which they are said, how they 
 came to be said, in what connection, and all and each of the 
 circumstances attending it, and go to make up a part of it as 
 much as the language itself that is used, then you might feel 
 a degree of safety in acting upon your construction of it and 
 affecting the right of others by it ; but without this it is dan- 
 gerous and unreliable. You have a practical illustration of 
 this in the very testimony before you of Capt. Parker. When 
 examined here he is asked the question, " Did Col. Fish ever 
 make any remark to you about making any money ?" "Col. 
 Fish," he said, "asked me at Genl. Schenck's Headquarters, 
 before he assumed the position, what the position was worth. 
 I answered him I did not know what he m.ant. He asked me 
 how much I could make out of it. I told him I could make 
 my pay as an officer, nothing more." Tliis witness has been 
 examined before, and in his affidavit he speaks about this con- 
 versation at Headquarters and that I laughed and Avent away. 
 He forgets to tell you that now, about the laugh, or to call 
 your attention or ask you to consider the probability of my 
 having made any such remark to an entire stranger, as he 
 was to me at that time. 
 
 If the prosecution offer the testimony of Capt. French as a 
 confession, they have entirely failed as I have already shown. 
 The principles of law and common sense upon this subject, I 
 have already commented on. Let me refer you to a few words 
 upon this subject, found in the 214th section of 1st Greenleaf 
 on Evidence. They are as follows : " The evidence of verbal 
 confessions of guilt is to be received with great caution." For 
 besides the danger of mistake from the misappreiiension of 
 witnesses ^ ^ the misuse of ivords," the failure of the i)arty .to 
 express his own meaning and the infirmity of memory, &c.. 
 the zeal, too, which so generally prevails to detect offendeis, 
 especi.illy in cases of aggi-avated guilt, and the strong dispo- 
 sition in the persons engaged in pursuit of evidence to rely on 
 slight grounds of suspicion' whicli are exaggerated into suffi- 
 cient proof, t()<':ether with tlie character of witnos.'^es, &c. , 
 tend tj im[)air the value of this kind of evidence and some- 
 times lead to its rejection. And as Justice Foster says, wo 
 
n 
 
 are to keep in mind that " this evidence is not in the ordinary 
 course of things, to be disproved by that sort of negative evi- 
 dence, by which the proof of plain facts may be and often is 
 confuted." 
 
 But in reference to the question of human testimony. It is 
 a common error to suppose that from the lips of a witness, you 
 desire the/act to which he testifies. You only desire the im- 
 pression which that fact has made upon the witness' mind. 
 This I submit is a most important consideration in the weigh- 
 ing of human testimony. If there is a defect in the mind upon 
 which the impression is to be made, there will be a corres- 
 ponding defect in the impression itself. The human mind is 
 like the plate of the daguerreotypist — if there is a defect in 
 the plate, there will be a like defect in the picture, and it is 
 before you with all its imperfections ; and if from any cause 
 there is a defect in the mind, there will be a like defect in the 
 impression made, and that impression with all its defects is 
 conveyed to you by the lips of the witness. And this is hu- 
 man testimony. Let two witnesses testify to the same occur- 
 rence, a blow for instance in the street. One will speak of it 
 as of the most trifling character, not worthy of notice ; the 
 other as a most severe blow, one calculated to do the utmost 
 mischief. And yet the blow is the same. You only get the 
 impression made upon the minds of the two witnesses, and 
 upon that ground you can alone account for the discrepancy.' 
 In the one case, the party has been inured to such scenes, and 
 looks upon it as a trifling matter ; in the case of the other, he 
 has been unaccustomed to such scenes, and to him it is a mat- 
 ter of the most serious character Theii- minds are different 
 and the impressions made are diff'erent, and consequently their 
 testimony is different ; and hence no testimony can be accu- 
 rately weighed without first discovering the condition of the 
 mind upon which the impression is made, and the power of 
 that mind to retain it and communicate it to others. If the 
 mind is improperly affected by prejudice, ignorance, weak- 
 ness, jealousy, envy, or from any other cause, that is to be as 
 much considered as the words spoken, which are but the mere 
 instruments or vehicles, through which an impression is sought 
 to be conveyed from one mind to that of another, and I trust 
 you will keep these considerations in mind as you examine 
 the evidence in this case. 
 
 5fh Specification. — The next specification is the 5th, con- 
 taining the charges in reference to the Confederate or so-called 
 cotton bonds. The evidence is before you in relation to those 
 
28 
 
 bonds, and I leave it for you to determine whether I deserve to 
 be court-martialed upon that subject, or whether my conduct 
 does not meet the sanction and approval of everyone, who earn- 
 estly and honestly desires to su])press the present rebellion, by 
 the most effective means. I wished to bring some twenty 
 thousand dollars into the service of our government, and at 
 the same time, take it from the pockets of our enemies, or 
 what was tantamount, from their sympathising friends abroad. 
 I put it in the light of commissary stores or any other prop- 
 erty captured from the enemy, and thought then and think 
 now, if we could sustain ourselves upon the enemy, the burden 
 would be much lighter upon our own people, and the taxing 
 of the rebels would be one means at least, of hastening the day 
 of their exhaustion, which would seem to be the point to 
 which the present war is lesolving itself. When the bonds 
 were seized I made my report and recommended this course. 
 I stated all the facts and fully gave my reasons. Had how- 
 ever the General Commanding communicated to me the result 
 of his interview with the Secretajy of War, the bonds never 
 would have been sent forward ; but the General, amidst the 
 multiplicity of his affairs, failing to communicate further with 
 me, and supposing it to be a plan by which they would gladly 
 have the secret service fund provided for, and at the same 
 time, not wishing to be considered as a government formally 
 endorsing and ratifying the arrangement, I proceeded in the 
 absence of orders to the contrary, to put in execution the plan 
 I had matured, by which to realize from the enemy, or its 
 friend abroad, the amount for which these bonds would have 
 sold at that time in a foreign market. The General Com- 
 manding tells you that he neglected to communicate to me 
 the views of the Secretary of War upon this subject, and he 
 gives you the reason, and that it was through that neglect 
 and through a misunderstanding by me of his instructions, 
 that the bonds have been forwarded. I refer you, in addition 
 to his testimony upon this subject, to my official reports made 
 to the Commanding General, and to the testimony showing 
 the efforts made by myself to reclaim them, when I found I 
 had acted under a misapprehension. I am willing to leave 
 this before you without further comment ; I am willing to 
 leave it as a part of the record of my military life, and I feel 
 to-day, that if every one in his official conduct would be ac- 
 tuated by the same motives by which I was induced to take 
 
29 
 
 this course, the present rebellion would be nearer its termi- 
 nation. 
 
 ^th Specification. — The 6th specification charges, that having 
 in my possession, Southern bank notes of the nominal value of 
 ($998) nine hundred and ninety-eight dollars, I did embezzle 
 and wrongfully misapply the same, and that I never delivered 
 ovei , or made any true account of said notes, or their proceeds 
 or any part thereof, to the proper authority. 
 
 Fortunately in this, as in every other case; when the testi- 
 mony is of such a character as to come within the ordinary 
 scope of explanation, I am not only able to entirely prostrate 
 the charge, but to exhibit the grave mistakes and misappre- 
 hensions under which the prosecution has been inaugurated. 
 If I am not able to contradict certain alleged private conver- 
 sations, with which this case seems to abound, and which 
 from their very nature are not susceptible of contradiction, I 
 am able when it comes to matters of open fact and of record, 
 to dissipate the mysteries that have been gathered together, 
 and to sweep away the illusion that has led perhaps the hon- 
 est mind astray. It was no doubt, the theory of the prosecu- 
 tion, that this was a private speculation into which I had en- 
 tered with the witness Mr. Wilson, and this serves to illus- 
 trate, how people who neglecting their own business and de- 
 voting their time to other people's, are led into error, by attri- 
 buting a false or base motive to every action of their neighbor, 
 about the circumstances of which they are profoundly igno- 
 rant — and this one transaction, as it would seem from the tes- 
 'timony of the witness, gave rise to the wildest imaginings, 
 and his name was connected with mine, as he tells you, with 
 untold operations, and this was the only transaction, as he 
 says, that he at any time had with me — but it was sufficient 
 in the eyes of those who were about me, and who, in the lan- 
 guage of the law already cited, were eager from their zeal to 
 detect, and ready to rely on slight suspicions exaggerated into 
 sufficient pi oof, and what is the result? For an act, in the 
 performance of which I acted with an eye single to the best 
 interests of the government, and in the doing of which, ac- 
 cording to their own testimony, the interest of the govern- 
 ment would be the best subserved, I am placed upon trial for 
 embezzlement. Let us look at the evidence in reference to this 
 charge. Mr. Wilson is called, his testimony is found com- 
 mencing on page 101 of the record — he testifies to my hand- 
 ing him the money in the office, for which I took his receipt — 
 
30 
 
 he sold the money and gave me a check for the amount due. 
 Every effort was made by the prosecution to make it appear 
 that this was a private transaction between the witness and 
 myself — he is asked several questions to show this fact, but to 
 all, he answers it was considered a transaction for me in my of- 
 ficial capacity, in which the government was to be benefitted, 
 and by which in point of fact, it was benefitted. At the time 
 he sa} s, in answer to the question by the prosecution, he pre- 
 sumed he was acting for me in my oflicial capacity as an of- 
 ficer of the government, it was with that understanding he 
 gave me a receipt for the money. And the check offered in 
 evidence by the prosecution to show the receipt of the money 
 by me, shows my official endorsement thereon. 
 
 It is hardly necessary that I should make any comment 
 upon the remaining part of this specification, which charges 
 that I never accounted for the amount received. Mr. Wilson 
 testifies that the amoimt received by him was $426.00 — that 
 exact amount you will find in my account; and he also states 
 that the amount received by him from me to sell, at the first 
 instance was about $1,000, and on cross-examination, he states 
 that I afterwards gave him some more bills, which he 
 added to the amount in the package. These two amounts 
 made up the sum of $1,065, on which the actual 
 amount received was the sum of $426, which is the exact 
 amount found in my account; and instead of having embez- 
 zled the government funds in this operation, when you come 
 to get at the exact truth of the matter, there is an error 
 against me upon this one operation, as the account now 
 stands, of $4:6, and yet I am gravely charged with having 
 embezzled two hundred and thirteen dollars and five cents. 
 If I liad had the opi)ortunity of examining these accounts 
 that ray prosecutors have had, I never should have signed my 
 name to that, although it was reported to me as correct, by the 
 clerk of the officer who was appointed to audit it. Three 
 several efforts had been made in vain to have these accounts 
 properly made up, when I applied to the Commanding 
 General to have an auditor appointed. The officer detail- 
 ed to my office for that purpose, having proved incompetent. 
 That account coming from the hands of the auditor and re- 
 ported correct, I signed If I am chargeable with stupidity in 
 signing such an account, my apology is that I never had the 
 time or opportunity to examine it. But what can ray prose- 
 cutors say, when they have the entire account before them, and 
 
31 
 
 charged me with having embezzled $213.05 in a certain trans- 
 action, in which the account itself, without other testimony, 
 upon a proper examination of it, shows an error against my- 
 self, and in favor of the government for the sum of $426, and 
 yet such is the fact and such are the figures. I have been 
 charged with the whole amount I had received, and when sold, 
 should have been credited the difference between that and the 
 amount I actually received for the money sold, instead of that, 
 the account and evidence shows you how it was done, and in- 
 stead of embezzling as charged, there is a balance now re- 
 maining my due upon the transaction, of $426. 
 
 The witness, Mr. Wilson, states to you it was the best possi- 
 ble arrangement that could have been made for the govern- 
 ment — tliat the money was so far south and of sucli a charac- 
 ter, that it would not sell in this market, and gave the reason 
 why he could dispose of it in New Orleans. 
 
 In this connection, 1 refer you to the testimony of Mr. .Mil- 
 ler, and the corrected account made by him, which I offer as a 
 part of this, my written defence. 
 
 7f/i, ^th and 9th Specifications. — The 7th. 8th and 9th speci- 
 fications, I propose to discuss together, as the same evidence 
 bears to a great extent upon each, and the comments upon 
 that portion of the testimony applicable to the one, will nlike 
 be applicable to the others. The 7th charges, that having re- 
 ceived into my custody, two prisoners named Gogensheimer and 
 Hertsler, charged with attempting to pass the military lines 
 without authority, and having in my possession their money, 
 I did release said prisoners and restore them their money upon 
 the solicitation of one B. F. Ullman, and did corruptly receive 
 from said Ullman as a consideration for so doing a diamond 
 breastpin — this about the 25th February, 186H. The 8th spe- 
 cification charges, that having in my possession a large amount 
 of money, including about $3,700 in gold, belonging to or 
 claimed by one L. Marr, I did deliver up said money to Marr up- 
 on the solicitation of said Ullman, and did corruptly receive from 
 said Ullman, as a consiberation for so doing, the sum of two 
 hundred dollars. The 9th specification charges, that hav- 
 ing in my possession a large sum of money, (amount 
 not stated) which had been taken from two men named Irene 
 and Lipzen, who had been arrested under charge of attempt- 
 ing to pass the military lines without authority, did deliver 
 up said money to said parties upon the solicitation of said 
 Ullman, and did corruptly receive as a consideration therefor, 
 
32 
 
 the sum of two hundred dollars. The specific charges made 
 in these specifications, and upon which you are to decide are, 
 that my official conduct was influenced and based upon the 
 corrupt receiving from the witness, Ullman, compensation for 
 my action, but I did what I would not otherwise have done, 
 had it not been for such considerations — that I released these 
 parties and delivered them up their money, not because there 
 was no case made out against them upon which I could hold 
 them — but that I corrujjtly received as a compensafion therefor 
 a diamond pin and the money mentioned, that this was the 
 motive upon which my action was based, and the considera- 
 tion which induced me so to do. This the Court will bear in 
 mind is the only charge upon which they are to pass, and 
 which must be clearly established by the evidence in the cause. 
 The first witness whose testimony I propose to examine in this 
 connection is B. F. Ullman. He comes before you to 
 testify, under the circumstances narrated by himself, with an 
 affidavit before him, extorted under circumstances which he 
 says, to use his own language, would have caused him to sigA 
 anything, no matter what it might have been, to obtain his 
 release at the time. Understanding, as he says, it was neces- 
 sary to testify to something against me, in order to obtain 'hat 
 release, you may take the entire testimony of this witness as 
 it stands and connect with it the testimony of the Jews who 
 have been examined, and admit it all to be true, and it fails 
 entirely to support these charges. 1 am charged with cor- 
 ruptly selling my official action, and for a consideration re- 
 ceived, performing certain official acts — this is the charge 
 which the prosecution is bound to support by the evidence in 
 the cause. This evidence not only fails to establish any such 
 charge, but from the lips of their own witness, negatives any 
 such fact. And it is not for the prosecution to ask, not only 
 in the absence of evidence, but in direct opposition to the tes- 
 timony off'ered by them, that you should arrive at any such 
 conclusion. Mr. Ullman says, on page 421 of the record, 
 ''that I have no knowledge that he ever received any compen- 
 sation or was paid any money by any parties for his services." 
 On page 426 of the record, he says, "I never at any time 
 paid Ool. Fish any money, or made him any presents for the 
 purpose of influencing his official conduct." 
 
 "There never was any such understanding between him and 
 myself, and his official conduct was never influenced by any 
 thing that ever passed between us." And yet you are asked 
 
33 
 
 to find exactly the reverse from what their own testimony 
 proves. I ask you carefully to read over his testimony and 
 examine it in reference to this point — note the replies I made 
 when applied to by him in behalf of parties. In all cases as 
 testified to by him, saying, "If nothing was found against 
 them they would be released and their money restored, but 
 if there was, their money would be confiscated and the parties 
 held." Look at the various schemes he laid and efforts he 
 made to ingratiate himself into my favor, and if you wish, 
 look at the testimony of Lieut. Parker, although I have no 
 desire to resort to such a source to substantiate any thing, but 
 as he is their own witness, offered and vouched for by them, 
 in offering him as a witness, and see how entirely inconsis- 
 tent is his testimony, with the tlieory that UUman had any 
 understanding with me or any influence over me. Within a 
 week or two of Lieut. Parker's leaving the office, and after, 
 as is alleged, I had sold my services to Ullman, Lieut. Parker 
 states, on page 495 of tiie record, as follows, " Mr. Ullman 
 came to me in the morning to the office and asked me to go 
 down and see Col. Fish and use my infiuence with him to have 
 these Jews released, saying we can make something nice out 
 of it." '-He then asked me (the witness) if I could not go 
 down and see Col. Fish myself and ask Col. Fish to allow 
 him (Ullman) to speak to him." Now who on earth can re- 
 concile such conduct as this on the part of Ullman with the 
 theory sought to be established, that I had sold him my ser- 
 vices — that there was an understanding between us, and that 
 my official conduct was influenced by him — if so, what need 
 of this action on his part. But this is not all to be found in the 
 testimony of this witness, Lieut. Parker. He is asked by the 
 Judge Advocate, on page 499 of the record. "What was his 
 (UUman s) business with you and Capt. French ?" He an- 
 swers : "He came first as a friend, afterwards made me several 
 offers to enter into a plan with him after Col. Fish had re- 
 leased prisoners, for me to hold them over for about twenty- 
 four hours^ till he could see thein and tell them they were to 
 be sent JSouth or to prison, and he would scare them, and they 
 would give him money to get released, and after that I was 
 to give the order and have them released, and he would share 
 the money with me." How well Ullman must have known 
 his man, and the correctness of his judgment is verified by the 
 fact that no report was ever made by the witness, Lieut. Par- 
 kei', of any such conduct on the part of Ullman. No ; he 
 
34 
 
 was perfectly safe in the hands of Lieut. Parker, and he knew 
 well that fact. He made much the same offer to Capt French, 
 and on the same page, he says he made application to Capt. 
 French to have prisoners released, and was generally success- 
 ful; they generally got away — they were released. Again we 
 have Ullman's efforts to reach me, his going to the officers to 
 get them to invite me to his dinner, which was afterwards, as 
 ne stated, turned into a supper, at which Capt. French pre- 
 sided. Although I am not amenable to these specifications 
 upon the evidence, as nothing was given to influence my offi- 
 cial conduct, still the theory of the prosecution is that I did 
 in fact receive the things from Ullman. Upon this point 1 
 am willing to leave it to the statements made by Ullman, 
 when he was not under fear, to Mr. Smith, to Mr. Whitney, 
 to Lieut. Parker, when he asked him if he had seen the pin, he 
 (Ullman) had sent it as a present to Col. Fisli — to his putting 
 my name on it — when lie told Lieut. Parker Col. Fish was a 
 damned fool, for if he would work in with him he could make 
 an independent fortune. The testimony of Capt. Morris and 
 Adjutant Walker, who saw me when I opened the box — my 
 official report to Genl. Schenck which refers to other things 
 having been left — my declaration to White that I had received 
 them but never knew where they came from, which the pros- 
 ecution has put in evidence and made testimony, and all the 
 otlier evidence which shows how 1 treated Ullman and the ef- 
 forts he made to get other parties in the office to influence me, 
 because he himself could not do it. 
 
 That testimony cannot be explained upon any other theory 
 than the one always claimed by me. The more closely you 
 examine all of the testimony showing the connection of Ull- 
 man with the office, the more thoroughly will it appear as 
 totally inconsistent with the theory of his having any influ- 
 ence with me. But independent of all these considerations, if 
 you take the testimony as true, and place reliance upon it, 
 then the charges contained in the 7tli, 8th and 9th specifica- 
 tions must fail, lor his evidence fully and clearly negatives 
 them. If, on the other hand, you place no reliance upon his 
 testimony then they must equally fail, for without him there 
 is no testimony on the subject. The prosecution may select 
 either horn of the dilemma they please. If you believe him, it 
 is fatal ; if you disbelieve him, it is alike fatal, and I now ask 
 you, as men upon your oaths, sworn to try this case upon the 
 evidence that is offered end upon which you can rely, is there 
 
35 
 
 from the beginning to the end of this record one tittle of evi- 
 dence to sustain them and nothing else. Now, luhere is such 
 evidence to be found ? You are not to act in the absence of 
 evidence, and I ask the Judge Advocate to point me out the 
 witness or witnesses, or the fact or facts that go to establish 
 any such charges. If it is claimed that UUman gave into my 
 hands the presents of which he speaks, and I had been placed 
 upon trial for improperly receiving them, it would be then 
 another question, and reduce itself down to a matter of verac- 
 ity as between Ullman and all the other evidence in the cause, 
 including his own former statements on the subject, and still 
 it does not in the least degree affect these specifications. The 
 acts and transactions themselves charged fail entirely in carry- 
 ing with them any intrinsic evidence of fraudulent conduct on 
 my part. Strange that in no one instance have I acted in 
 any other way than 1 should have done, or that any member 
 of the Court would have done under like circumstances. I 
 refer to the releasing of the parties and giving up their money. 
 The parties were not arrested by me ; they were sent to me 
 on parole, sometimes a week, sometimes more and sometimes 
 less, after their arrest. No witnesses sent against them — ar- 
 rested merely on suspicion, and from the time of their arrest 
 up to the time of the present trial the prosecution has been 
 unable to find a single particle of evidence upon which they 
 could have been held, or upon which I would have been justi- 
 fied in kee|)ing them longer in confinement, or to show that 
 in a single case where I released a party or returned him his 
 money, there was the least evidence upon which I could have 
 longer detained him. And is not this a most remarkable 
 fact, after such extraordinary exertions, and charging me 
 with this improper action, and ransacking the country asthey 
 have done, they have not been able to show by evidence that 
 in a single case I released a party or gave him back his money 
 when the same sliould not have been done. After a year has 
 elapsed, and all this effort, not a j^article of evidence has been 
 found that would justify detaining a single party I released. 
 The parties were arrested on suspicion, and no doubt 'in many 
 cases the suspicions were correct, but I must have some facts 
 to corroborate suspicion, and without those facts I am bound to 
 make such a disposition of the case, as all the circumstances 
 surrounding it would justify. Some I released to go North, 
 not to come South of a certain line during the rebellion ; some 
 sent South, or such disposition made of them as the good of 
 
36 
 
 the service required. And to show the influence of Ullman 
 over the disposition of such cases, I need only to refer to the 
 case of Gabriel Mayers, on page 450 of the record, who says 
 he wanted to go North to New York. He saw Ullman and 
 gave him a check on New York for $100, for which Ullman 
 Avas to get him released, saying to him, " If I give him $100 
 he gets me out, i gave him the check ; he says then we 
 could go off that night." But strange to say, instead of be- 
 ing sent North, or allowed to go there, they were sent South, 
 their money and property confiscated, and a full report of the 
 case made, which is in evidence belbre you. This man is the 
 one who assumed the name of Lippman, which he gave at the 
 Point of Rocks, and was tlie man who had beibre been arrested, 
 and whose money and property was now confiscated and handed 
 over to the government. For many reasons I do not think it 
 necessary to examine in detail the testimony of the Jews that 
 have been offered in refeience to this branch of the case ; the 
 most potent reason is, that admitting all they testify to be 
 true, it does not in the least affect the issue made u[)on these 
 sj^ecifications; they have been offered to prove outside ariange- 
 ments they made with one of their own faith, by which they 
 were swindled out of their money, and to recover which they 
 were willing to come to Washintj:t()n and make affidavits and 
 to obtain what the witness called his rights. Now the ar- 
 rangements made by these Jews and Ullman, out of my pres- 
 ence and hearing, and without my knowledge, could no more 
 affect me than any member of the Oourt. There is not a wit- 
 ness in the case, from the beginning to the end, who whispers 
 the fact that I ever knew of any such arrangement ; but yet 
 in violation of every rule of law, not following it up by 
 evidence bringing it home to my knowledge, this testimony is 
 now found in the record. Who is there holding an official 
 position that could not be ruined if such testimony as tliis 
 was to be acted upon ? You might as well accuse a judge 
 with improper couduct in deciding a case in favor of a party 
 who had made a contingent arrangement with his counsel, or 
 the head of any department, or accounting officer, who should 
 decide in favor of a party representing a claim, if it should at 
 any time be discovered that that party had made a heavy con- 
 tingent contract with the person whose interests he repre- 
 sented — and I stand in precisely this light. Their own wit- 
 nesses say I knew nothing of them, and there is none to con- 
 tradict. You are to act upon evidence, and upon that alone. 
 
37 
 
 If the evidence is not fonnd to sustain a theory you cannot 
 proceed upon that, though it is not your fault ; you are not 
 to supply testimony or to imagine things in opposition to the 
 evidence, and when there is no evidence connecting me with 
 the arrangements hetween these Jews and Mr. Ullman, then 
 to ask you to act upon that theory is to ask you to commit 
 perjury as much as though you were asked to go upon the 
 stand and testify to a falsehood ; and I ask you where upon 
 this record is to he found the connecting link between these 
 arrangements and myself. The two Jews called in connection 
 with these specifications are Hertzler and Lewis Marr. I do 
 not desire to comment in detail upon their testimony. You 
 have had them before you, and you will have their testimony 
 also befoi'e you. If you will refer to the testimony of Ullman, 
 on page 399, I think you will find the true manner in which 
 Ullman saw Hertzler when he was in confinement. He is 
 asked by the prosecution, "Did you see Mr. Hertzler when he 
 was in confinement ?" He says, "I did, sir." "iState how 
 you were enabled to see him." Answer, "Lieut. Parker was 
 there ; he says, 'Ullman, look in there, there is a lot of Jews 
 in there.' He told the guard, 'Let Mr. Ullman go in if he 
 Avants to,' and I went in." If in this connection you will 
 read the account given by Lieut. Parker in reference to this 
 occurrence, commencing on page 495 and ending on page 497, 
 I am sure you will be satisfied that UUraans statement in 
 that particular is more to be relied upon than that of Lieut. 
 Parker. I am at a loss to understand his evidence. He says — 
 now mark his language on page 496, "Mr. Ullman came up 
 and either told me he was to see the Jews or brought me a slip 
 of paper, which I am not sure ; one or the other took place, 
 he either told me or brought a slip of ])aper." And yet in 
 the same breath he goes on to say, "If Ullman did not bring 
 me an order from Col. Fish to see them, Col. Fish told me 
 himself," thus ignoring his former statement entirely as to 
 what Ullman may have said. Ullman is also asked, "Did 
 Col. Fish have any knowledge that j'ou had this interview 
 with Mr. Hertzler by permission of Lieut. Parker?" He 
 answers, "No, sir, he did not." "Who had charge of the 
 prisoners in confinement ?" "Lieut. Parker.' "If you de- 
 sired to have an interview with any person, to whom did you 
 apply?" "Capt. Parker, Lieut. Parker at that time, gave 
 me liberty to go in." But you have this testimony before 
 you, which you will examine and weigh for yourselves. It is 
 
38 
 
 impossible, without trying your patience too much, to point 
 out all the discrepancies in their testimony, its inconsistencies 
 standing by themselves, and contradictions one with the other. 
 The testimony of Lewis Marr commences on page 309. He 
 was arrested at Wicomico and kept there about seven days, 
 then taken to Genl. Lockwood and detained there several days, 
 and then paroled to come to Baltimore, without any specific 
 charges — no witnesses — only acting upon suspicion. After 
 two weeks from his arrest he is sent to Baltimore, where I de- 
 tained him another week, and finding no evidence against 
 him, I ordered his release, and what is remarkable, no evidence 
 has been found against him to this day to show that I could 
 do anything else than release him. 1 did not make the arrest 
 and then release him ; he was arrested by others and held by 
 tliem as long as they could consistently do it, and then turn- 
 ed over to me. I took one week to examine into it ; was that 
 too long or too short ? Who can judge ? But his ideas of a 
 Provost Marshal are somewhat peculiar. He is asked if he did 
 not think the Provost Marshal should have time to investigate 
 such a matter. He says, '"iVb." Question, "^'You thought 
 he ought to do it at once?" Answer, ''Yes, right off. " 
 Question, "You thought when you offered to swear it was 
 your money, tlvat was sufficient." Answer, "Yes, I suppose 
 so, it ought to be sufficient." He tells you that UUman fol- 
 lowed him out of the office, and being a perfect stranger in 
 the city, having received Ullman's card, he went straight to 
 his house and waited for him. UUman says he met him near 
 the corner of Fayette and Calvert streets, coming from and 
 going in the direction of Col. Fish's office. His testimony 
 about the lawyer is to me perfectly incomprehensible. On 
 page 311, he is asked, ''Did you say anything about a law* 
 yer ?" "Yes, sir, I had a lawyer, Mr. John H. Ing " "You 
 told Capt. French so." "No, I suppose he knew it." "Did 
 ('apt. French say anything about any lawyer?" "No, sir." 
 On page 32fi, he is asked, "I. id your lawyer ever make appli- 
 cation to any one ?" He answers, ^^Isuppose he did " "Do 
 you know whether he did or not?" Answer, "At least he 
 told me so." On page 323, he says, "My lawyer did not go 
 witli me to Col. Fish^ but he went with me to Capt. French — 
 Capt. French's office, several times." And thus his testimony 
 stamls on p-ige 311, "I did not tell Capt. French I had a 
 lawyer, nothing said about it." On page 321, "I suppose my 
 lawyer did make application, at least he told me so;" and on 
 
39 
 
 page 323, "My lawyer went with me to Capt. French's sev- 
 eral times." You recollect this Marr's appearance, and the 
 manner of his making his statements — "Over a year ago he 
 left the South for Europe" — that was his own language — 
 ^^ my only object." Europe seems to have been the destina- 
 tion of all these various parties when they were coming this 
 way — and to recover from the Confederacy sick wives 
 and children when they were going the other. But 
 this man in particular, was bound for that point ; it was his 
 sole object, in leaving the Confederacy, and yet we find him 
 still here, in no business, except four months in this case, 
 which he says was his business. 
 
 Hertzler, the other party named in these specifications, was 
 not arrested by me, but at the Point of Rocks, and sent to me 
 in like manner as the others, with no specific charges or 
 any witnesses against him. He, like the others, had been 
 arrested and held on suspicion, and from that time to the 
 present, the government has not produced a single witness 
 to show any ground upon which the party could have been long- 
 er held, or that I acted in any other way than the circumstances 
 of the case required. If you will look at tlie testimony of 
 Ullman, in reference to this branch of the case, on [)ages 
 382, 383 and 384 of the record, you will find a complete 
 history of this case, what 1 said and what I did. That it 
 was in this case that Mr. Stein, of the firm Stein & Bros., 
 a very rich house, interceded, and was a witness examined 
 at the hearing, and he (Ullman) is unable to say, that his 
 interference had any influence in obtain ng their release, as 
 other parties had interfered besides himself, and the true 
 character of these transactions is biougiit out by the an 
 swer of the witness to a question by the Court on i>age 436, 
 "Did you know before you went to the office with these men 
 to receive the money, that the money would be returned to 
 them?" Answer, "I did not, sir." And I submit, had 1 for 
 a moment desired to have made money out of parties like these, 
 with the thousands in my hands, I couhl have selected a safer 
 and more satisfactory way than to have transacted my busi- 
 ness with Mr. Ullman. 
 
 10^/i Specification. — The tenth specification depends in a 
 great measure upon the testimony already commented upon in 
 connection with the 7th, 8th and 9th specifications, or more 
 properly speaking, upon no evidence at all, as none has been 
 offered to substantiate the charge contained in it. It charges. 
 
40 
 
 that having, from time to time, a large number of prisoners 
 in my custody, and large sums of money in my possession, 
 &c., I did knowingly permit one. B. F. Ullman to have free 
 access to such prisoners, for the purpose of selling to them his 
 services in obtaining lor them their release, and did refuse au- 
 dience to responsible counsel iu their behalf, and did refuse to 
 release the parties, or return them their money, until they 
 had })aid, or agreed to pay, said Ullman large fees for his ser- 
 vices in their behalf. There is no evidence ofl'ered, whatever, 
 on the part of the prosecution, to sustain this charge. 
 
 Mr. I Uman positively denies it, and says I had no knowl- 
 edge whatever ot his arrangements with parties outside, and 
 there is no evidence in the case which proves that upon any 
 single occasion did 1 ever allow Mr. Ullman to visit a prisoner 
 in my custody. Such never was the fact, and no witness can 
 or has been called to prove it. An attempt was made by the 
 prosecution to prove this part of the case by the witness Park- 
 er, but this, as was the attempt made to prove by him the 
 charge made in reference to the Wenner goods, has proved a 
 miserable failure, he does not undertake to refer to but one 
 instance, and in that 1 have already shown he is fatally con- 
 tradicted by tlie witness Ullman, as also by Hertzler himself, 
 ana that his own statement contradicts itself. Had the evi- 
 dence which lie gives iu reference to this subject, fallen from 
 the lips of a respectable and credible witness, it would then 
 even have leached no practical result, as it fails entirely to 
 prove anything ; it is the most miserable apology for an effort 
 to condemn a man without evidence that it has ever been my 
 fortune to witness. 
 
 I am not heie to blame the witness, Parker, I desire to have 
 nothing to do with him; but I do protest against the relying 
 upon any one just fresh from the cess pools of corruption, to 
 blacken the name and reputation of any man. This immacu- 
 late Parker, who hides behind the protection of the law, to 
 shield iiimself from being criminated iu the meanest kind of 
 pilfering, whose reputation and character is offensive to the 
 moral nostrils of the })eople, this man, when trying to bolster 
 up tliis part of the case, aiid asked to describe those lawyers 
 who had called to visit prisoners, so that I might be enabled 
 to call upon them for the truth of the matter, in his sneering, 
 haughty manner, says, "I never considered them of sufficient 
 importance to take notice of tliem ; 1 can't describe them." 
 Yet i am to be tried lor not giving them audience, and pay- 
 
41 
 
 ing them proper respect and attention, when the witness for 
 the government, and the man having charge of the prison- 
 ers, did not consider them worthy of notice, or of sufficient 
 importance to leave their names, or have fixed upon his 
 mind their appearance. And the prosecution is unahle to 
 give either name or description of those who were so badly 
 treated at my hands. Not one has been found to testify to 
 any such facts, though they have ample opportunity to give 
 in their evidence in Baltimore, and sufficient public notice 
 of that opportunity. Not a breath comes from the lips of 
 any one except from Parker, and his is but the faint breath- 
 ings of a dying man. 1 propose to leave him in company 
 with his host of imagined lawyers, that he may in silence 
 enjoy the utter contempt with which he regards that class 
 of the community, simply reminding him, that if he allows 
 himself to become impregnated with the atmosphere of con- 
 traband rooms, he may, at no distant day, require their 
 services, when he may be unable to decline answering upon 
 the ground that it may criminate himself. 
 
 llth Specification. — The Uth specification is the one charg- 
 ing me with having received four hundred and eighty dollars 
 from detective White, knowing-at the time that it was a bribe 
 paid to said White to allow certain parties to go South, and 
 after receiving it, that I discharged said parties, and sent them 
 North. I need only refer you to the evidence in reference to 
 this charge. I did receive this money, and by the order of 
 the Commanding General, I ordered it to be confiscated to the 
 use of the government, and returned it in my account as so 
 much money received, which was paid as a bribe, and being 
 so paid, confiscated to the government, and in relation to 
 which I made ray full report to the Commanding General and 
 received his approval, and in doing this, I only pursued the 
 policy which had been acted upon by others in the service of 
 the government, who treated money paid as a bribe, the law- 
 ful property ot the government. I accounted to the govern- 
 ment for the money received, entering it in the account as a 
 bribe paid to the detective. 
 
 The specification is at fault in charging that / discharged 
 the party. I sent him under guard to the Provost Marshal 
 at Philadelphia, where he was discharged, by giving his pa- 
 role not to go South of a certain line during the rebellion. 
 Be desired to go South ; he was sent North, as a punishment, 
 which, as the Commanding General has explained to you, 
 
42 
 
 was the practice of the department in like cases, where parties 
 desired to go South, they were sent North, and where they de- 
 sired to go North, they were sent South, if that was deemed 
 the proper punishment. And in looking at the testimony of- 
 fered against me in this connection, one fact has been forced 
 upon my mind, that whenever any one was to be approached 
 with a bribe, it was one or the other of the men by whom I 
 Avas surrounded. Those offering the bribes seemed to know 
 their men, whilst not a man has been produced who ever 
 dared to make me such an offer. 
 
 "i^tli Specification. — The 12th specification is abandoned. 
 
 \?,tli, \Uh and loth Sjyecijications — May be considered to- 
 gether ; they relate to the sending of parties South. The 
 general practice of the department, during the spring of 1863, 
 has been explained by ttie General Commanding, and that 
 from his general instructions, I might be considered as having 
 the matter within my own discretion. That practice was con- 
 tinued until it was found it would be necessary to put a stop 
 to it, and the practice was discontinued. The General., testi-. 
 fied, that during the time it continued, his general orders to 
 me were of such a character as to leave that matter, a^; also 
 other matters appertaining to the office, to my discretio.n. ;. he 
 could not undertake to act in individual cases, and those mat- 
 ters were left to be disposed of by the proper officers. . .These 
 specifications also charge, that the parties were sent South at 
 the request of one B. F. Ullman,' who had taken a fee for ob- . 
 taining such passes, which was known to me, and that the 
 parties were sent by the direction and procurement of myself. 
 The theory of the prosecution is, that 1 was here prostituting 
 my office to the same base and sordid influence of Ullman ; 
 that in direct violation of my duty, I was violating every 
 principle of action by which I should have been governed, and 
 rendering myself liable, not only to the censure of my Com- 
 manding General, but to punishment for proving false to the 
 trust reposed in me ; that I was actuated by impr<^per mo- 
 tives, and that 1 caused those things to be done for a sinister 
 purpose. Now, what is the evidence in the case upon these 
 points, for by that evidence you are to be governed ; you can- 
 not go beyond what the evidence warrants. Adopting the 
 theory, that I caused this to be done, and that it was an im- 
 proper act, that I did it from an improper motive, in viola- 
 tion of the rules of the department, that I did it to benefit 
 myself, %vould it be consistent with such a thfiory, that I 
 
43 
 
 shoulcVliave published it to the world, to every one in the of- 
 fice, that I should have employed those in the office to do 
 those acts I knew to be illegal, and with the self-consciousness 
 that I was doing it for private gain— and bringing it home to 
 their knowledge, should I have made it matter of official re- 
 cord, spreading my own vile actions open before the world, 
 would I have detailed a guard, when my mere name to a pass 
 would have been all that was needed? But the evidence of- 
 fered by the prosecution, negatives the entire charges, and 
 shows conclusively I had no knowledge in reference to these 
 matters. The fourteenth specification charges, that Lewis 
 Morse was sent by my direction and procurement. Now look 
 at the testimony of .vlorse for a moment, and see how the mat- 
 ter really was. His testimony is found commencing on page 
 643 of the record. 
 
 He applied to Ullman — Ullman told him to call at 8 o'clock 
 in the evening. Mark the hour. The witness proceeds to 
 say, *'I did call at that hour, and he took me to the office. I 
 saw Capt. French there, and my baggage was examined, and 
 I was sent to the depot. I did not see Col. Fish at all, whilst 
 I was in Baltimore. I was going to bring away my brother." 
 That is the testimony of this witness upon this point, corrob- 
 orated by Ullman, who says, he never spoke to me on the 
 subject, all his interviews, in relation to it, were with Capt. 
 French, and that I knew nothing about it, to his knowledge. 
 Add to this the orders sending them South, and detailing the 
 guard, one signed by the express order of Capt. French, in 
 my absence from the office, and after my business hours, and 
 the other by Lieut. Stirling. Is it not drawing largely upon 
 the imagination to charge that the parties were sent by my 
 direction and procurement, actuated by corrupt and improper 
 motives ? Again, I ask you to look at the testimony. Thos. 
 Bernhard Rees, another of the parties charged with having 
 been sent South by me. It commences on page 303 of the re- 
 cord. He states, "I went to the Provost Marslial's office with 
 Ullman ; I saw Capt. French, and he questioned me — he told 
 me to report at 2 o'clock with my baggage. This was ray first 
 interview with Capt. French, and I understood, from being 
 told to report with my baggage at 2 o'clock, that it was all 
 right. I took that for granted, and Ullman said it was all 
 right. I reported with my baggage, which was examined, 
 and then told to come back at seven, which I did. I did not 
 see Col. Fish at all during the time I was in Baltimore." 
 
44 
 
 And then the witness was asked this question, *'Did Capt, 
 French leave the room at any time during the time you were 
 there?" And he answers, "Not to my recollection." 
 
 The other witness examined in reference to this point was 
 Mr. Nelson, from Boston, and I call your particular attention 
 to his testimony. It is found commencing on page 299 of the 
 record. His wife and children were lying ill at Richmond, 
 and he says, "I was anxious, to go and bring them up. I 
 applied to Ullman ; he went to the office with me. I had a 
 carpet bag and a dress for my wife with me. I asked one of 
 the officers if I could take that with me; he said, '7 could take 
 anything Hiked.' I got there and found my child was dying. 
 I saw a few officers in the office, one a Captain and one a 
 Lieutenant, who examined by baggage. I did not see Col. 
 Fish." There were with this witness the other parties named 
 as having been sent South by me, and this witness states, that 
 after this interview with the Captain and Lieutenant, they 
 did nothing more until evening, when they left, and the or- 
 der, sending them South, was signed by the witness, Thomp- 
 son, in my absence, under the express orders from Capt. 
 French. 
 
 The Court asked of this witness, this very important ques- 
 tion, "Whilst you were in the office with Capt. French, did 
 Mr. Ullman leave to go out?" He answers, "A'o, he loas 
 there ail the time." Thereby corroborating what Ullman 
 says, that he never approached me on the suliject, and that I 
 knew nothing about it ; and he is then asked by the Court, 
 "With whom did Mr. Ullman have the conversation in the 
 office?" And he answers, ''I believe it was with a Lieu- 
 tenant." 
 
 These are the witnesses examined in reference to their go- 
 ing South. You may add to this, the positive testimony of 
 Ullman, saying, that I had notliing to do with these transac- 
 tions, that I knew nothing of his arrangements, and then the 
 orders sending them South, and detailing the guard, and I 
 have nothing more to say upon tliese specifications, only, that 
 had I been called upon to produce evidence to prove the nega- 
 tive of these charges, and in doing so, I had offered the evi- 
 dence that has been offered here, and a jury should have found 
 against me, I do not hesitate to say, there could not be a judge 
 found who would not grant a new trial ; and where, I ask, is 
 the evidence that casts even a shadow towards sustaining the 
 affirmative. 
 
45 
 
 l&h Specification. — The 16th specification charges, that af- 
 ter having caused the government brand to he removed from 
 a certain sorrel horse, with intent to defraud, 1 did convert 
 said horse to my own use. I hardly deem it necessary to say 
 a word in reference to the specification. Their own evidence, 
 that of the Quarter-master, is sufficient, and gives a full his- 
 tory of the transaction. The horse was an exchange made by 
 him with me, and the horse I gave him in exchange was 
 turned over to the government at Washington. 
 
 The eifort to remove the brand was as public as the act of 
 any officer of the regiment, and I had as much right to do 
 that, as I had to do any other act with property that had be- 
 come my own, and I only desire to ask you one question in 
 reference to this, and that is, that after all their labors and 
 efforts, and considering what I have passed tlirough, and by 
 whom surrounded, has it not struck you as a little remarka- 
 ble, that my enemies should be obliged to resort to such a 
 charge as this. 
 
 17th Specification. — The remaining specification to this 
 charge, and which is in the form of an additional specifica- 
 tion, is the silver watch, valued at $15.00. The evidence of- 
 fered by the prosecution disposes of this specification, by dis- 
 proving the charge contained in it. It is charged, that I 
 gave the watch to the witness, and in so doing, I misappro- 
 priated the same. The witness denies this statement, and 
 says, I loaned it to him, and tells you the reason. It is their 
 own witness, and the only one upon wliich they have to rely 
 in this matter, and as his testimony disposes of the raatttr, it 
 is not necessary to comment upon it. 
 
 But it exhibits one remarkable fact ; you see it is an addi- 
 tional specification ; you note the charge, and the manner in 
 which it must have been brought up, and the combination 
 there must have been against me in the office, and how they 
 caught at straws, and feeble ones at that, without proving 
 that the watch ever belonged to the government, or that I 
 was ever called upon to account for it : and they make this 
 charge, which, from its character, must have originated with 
 some one in the office. And the loaning of the orderly of a 
 Avatch, of the value of $15.00, to enable him to perform his 
 duty, in the absence of any other time-piece, has been so dis- 
 torted by those around me, that the machinery of the govern- 
 ment has been set in motion^ and I am court-martialled for 
 such an act. If you desire a strong illustration of how my 
 
46 
 
 actions have been distorted and misconstrued, and how Msely 
 I have been represented, look, I pray you. at the 12th specifi- 
 cation;, in reference to the Cohen arrest. Although abandon- 
 ed, it serves to show how, in consequence of these misrepre- 
 sentations, other parties have been led into error in reference 
 to my conduct. I am charged with having caused the arrest, 
 and then equally sharing the plunder, and that I refused to 
 do anything in the matter of restitution, until I was threat- 
 ened by public exposure by Mr. Pike, who, when called, says, 
 I treated him as a gentleman, and doing all I could to have 
 the money restored, and causing it to be done. Look at this 
 charge, and then at the evidence in relation to it, and I leave 
 it with you as a fair illustration as to how my actions have 
 been misconstrued, and how charges have been brought 
 against me. 
 
 Charge 2d. — \st Specification. — We are now brought to a 
 consideration of the second charge, which is, "The using false 
 vouchers, knowing the same to contain false statements, for 
 the purpose of obtaining the approval of false and fraudulent 
 claims against the government, contrary to the statute in such 
 cases made and provided " 
 
 This is the charge, and upon which I am to be tried, and 
 whatever may be the specifications under it,they are to be exam- 
 ined in reference to it, that I knowingly used false vouchers, 
 containing false statements, to realize fraudulent claims. The 
 1st specification is in relation to the voucher for $300, fur- 
 nished Thompson to go to Europe There is no questioning 
 about my furnishing him with the |JOU, and at the same time, 
 took the voucher and receipt, which are all in the usual and 
 printed form. The money was paid to Thompson, and it was 
 the duty of Lieut Sterling, who had charge of the accounts at 
 that time, to make the entry, charging the government with 
 the amount I had paid out to Thompson, and this he did, as 
 Thompson tells you, and had it embodied in an account which 
 he had made out before Thompson's return. This was the 
 only entry tliat could have been made at that time, and the 
 proper one ; so that all this was done before Thompson had 
 returned, and yet the specification charges, that I knew he 
 had not performed the service, and had not expended more 
 than twenty dollars ; and this, when according to the evi- 
 dence, I was obliged to telegraph him to borrow money in 
 Montreal. 
 
47 
 
 2c? Specification.- — The 2d specification charges, that I caused 
 the said Thompson to make and sign an account against the 
 United States, and receipt in writing for ninety-six dollars 
 and ninety -four cents, for expenses, &c., of said trip, when 
 I knew that said trip was not made in the service of the 
 United, but that a large portion of it, viz : from New York 
 to Montreal, was made to escape arrest, and that I certified 
 to said account for the purpose of procuring the allowance 
 of a ftilse and fraudulent claim against the United States. 
 Comment is unnecessary upon this specification. Taking 
 them both together, the facta in relation to them are very 
 few and simple, yet they are distorted, like every other ac- 
 tion of mine, into all kinds of imagined fraud. Thompson 
 had started for Europe ; he had received $300, which was 
 charged to him ; when he returned, he made out his ac- 
 count, including subsistence. He tells you that I refused 
 to allow it, telling him to make out his account for actual ex- 
 penses, and that his subsistence would be met by way of his 
 salary, as an agent of the government. Tliis was done, and 
 the bill rendered accordingly, which was right aud proper. 
 When tliat was charged to the government, it presented a 
 new state of tJacts, and a change should have been made in 
 the former entry by Lieut. Steiding, and to make the trans- 
 action properly balance, the item of $300 should have been 
 charged to me. It was properly charged to the United 
 States when Thompson received it. I paid it to him- and 
 in point of fact, never received a dollar back. But on his 
 return, and making the entry of actual expenses, the former 
 one should have been transferred, in order to make the entries 
 stand correct — and I should have to look to Thompson for the 
 difference between his actual expenses and the three hundred 
 dollars, foi which he was bound to account to me. I ordered 
 this to be done, as Thompson tells you, and had it been done, 
 there would never have been any confusion in the entries 
 made in the accounts. The theory of the specifications, how- 
 ever, is, not that they were improperly entered in the account, 
 but that they were false accounts in themselves, which I caused 
 Thompson to make out for services never performed. I do 
 not think these specifications need more notice. But in rela- 
 tion to the account generally, I beg leave to say^that after 
 its going through so many hands to be put in proper order, 
 and pretended to be friendly by the auditor appointed to ex- 
 amine it for. my signature — you have at last discovered, at the 
 
48 
 
 latest moment of the trial, that it is all wrong from begin- 
 ning to end, and that instead of attempting to swindle the 
 government, the balance is largely the other way. Although 
 this may not speak well for proficiency in hook-keeping, or 
 proper attention to it upon the part of those through whose 
 hands it has passed, yet it completely annihilates the theory 
 of fraud connected therewith, and with which alone you have 
 to do. 
 
 3d Specification. — The third specification is in relation to 
 the entry of nine hundred and ninety-eight dollars, charged 
 as counterfeit and broken bank bills. No evidence has been 
 offered in reference to this, and of course needs no comment. 
 
 3d Chakge. — The 3d charge I do not understand, as relied 
 upon. It relates to the money received from A. Gr. A. Con- 
 stable, belonging to deserters. The testimony of Mr. Dun- 
 ning, and the letter book, show the practice of the depart- 
 ment in relation to that, and in what manner it was disposed 
 of. I have never been called upon to dispose of it in any other 
 way, or to render any other account. It is alleged as belong- 
 ing to the United IStates, when in fact, it belonged to the par- 
 ties from whom it was taken, and always paid over to them, 
 after they wtre received back in the army, and their identity 
 established. 
 
 I was arrested the same day Major Hayner came from the 
 Eastern Shore, to assume the duties as my successor, having 
 been appointed on my resignation. I did not see him before 
 my arrest, and had no opportunity to turn over to him, or to 
 any one else, any papers whatever ; not even the opportunity 
 to obtain such as I desired to offer as evidence in my defense, 
 and 1 have never yet been given an opportunity, or called 
 upon, to turn over anything pertaining to the office. The 
 list is now before you, containing the entries and officially 
 endorsed. 
 
 4th Charge. — The specifications connected with the 4th 
 charge, 1 do not desire to discuss. I endeavored to discharge 
 my duty according to my best judgment, and I protest against 
 being made the subject of criticism by such a creature as Par- 
 ker. His testimony, in reference to the ball, is proved to be 
 a lie, by Marshal Van Nostraud and Capt. Morris. He says, 
 I was there with a woman with me from Miss Emma Mor- 
 ton's, and that I danced. You have all the circumstances 
 connected with my being present upon that occasion, and the 
 taking of the woman home, who was in a difficulty ; and all 
 
49 
 
 this evidence proves, beyond the shade of the shadow of a 
 doubt, that Capt. Parker lied, when he was upon the stand, 
 and that lie knew it, when he was doing it. I have been to 
 those places ; I endeavored to make myself acquainted with 
 them, and the inmates of the houses, not in a manner to dis- 
 grace the service of the United States, which is the only of- 
 fence known to military law in connection with such places, 
 but to get that information best obtained in such places, and 
 which was of importance to the service. You have the testi- 
 mony of the Commanding General upon that subject, which 
 fully sustains me in my course. The most important inform- 
 ation I ever obtained, was through such sources, and there is 
 now a party in confinement at Fort McHenry, from the South, 
 Lieut. Col. Lamar, 17th Louisiana Infantry, who had been 
 in the neighborhood of Washingtpn and Baltimore for months, 
 obtaining information of the fortifications, and whom the War 
 Department had used every efibrt to trace out, and was finally 
 arrested by myself, on information derived from an inmate of 
 one of those houses. 
 
 I have now, in a hurried manner, called your attention to 
 some of the leading points of the specifications in the order in 
 which they are presented ; there is, of course, a host of testi- 
 mony to which I have not called your attention. You will 
 have that testimony befoie you, and I ask you to carefully ex- 
 amine and compare the testimony of a witness with itself, then 
 with the testimony of others, and then apply it to the specifi- 
 cation in question, recollecting that I am not upon trial for 
 anything except the specific charges presented. When you 
 proceed to examine this case for a final result, I ask you to 
 analyze first the specification upon which you are about to act, 
 ascertain exactly and minutely what is charged in the specifi- 
 cation, and then you will know exactly what it is necessary to 
 prove under that charge, and you will be prepared to exam- 
 ine the testimony and ascertain whether the precise thing ne» 
 cessary to be proved, is found in the evidence, to be established 
 as the rules already referred to require. I am to be tried 
 upon nothing but what is specifically charged against me, and 
 you are to be governed strictly by the issue that is made up. 
 No false issues are to be made. The question is not, whether 
 Mr. Ullman, in his own language, sent me a present or left it 
 on the desk, but did I do certain acts, charged specially in 
 consideration that he would give me the money, or property, 
 named in the charge. Does the evidence prove that I allowed 
 
€0 
 
 &y official conduct to be controlled as cliarged, and for the 
 consideration named in the specification? The question is 
 not whether Capt. French saw me wearing three hundred and 
 sixty-five different diamonds, or whether Lieut. Parker saw 
 me wearing eight thousand dollars worth ; hut the question 
 is, does the evidence in the case establish the fact that I em- 
 bezzled a certain diamond cluster pin, which had been seized, 
 and converted the same to my own use, when it was the pro- 
 perty of another, as is alleged in the specification. This is 
 the way in which every specification is to be treated, and by 
 so doing, the record will be strictly adhered to. 
 • There has been a great deal of testimony offered, having no 
 reference to any of the specifications. Capt. French is asked, 
 if he had seen me wearing diamonds, and if I changed fre- 
 quentlyy and' in this instance, Capt. French lost himself, he 
 abandoned his usual caution, he was thrown off his guard, 
 and the true man was unmasked in his answer. You will re- 
 collect-that the answer was given with unusual quickness for 
 this witness. He answers, "I should say he had a new dia- 
 mond on nearly every time I saw him." Now this was either 
 true or false. If true, then Capt. French saw me with 365' 
 diamonds on, as he saw me every day in the year. If it was 
 false, he knew- it at the time he swore to it, but it came out 
 unguarded, it was an accidental letting out of the true man, 
 by the merest accident. It was not in accordance with his 
 usual style, as you could perceive, and he would undoubtedly 
 have bee-n very thankful if he could have recalled it. There 
 are witnesses who know just how far to go to have effect, and' 
 they go no further, and they are very dangerous witnesses.. 
 There-are others, like the witness Parker, who are not gov-' 
 erhed by any limits ; your difficulty is to keep them within 
 reasonable bounds and believing distance. Such witnesses' 
 are never much to be feared, and the testimony of this wit- 
 ness, together with his affidavit, furnishes a striking illustra- 
 tion of this remark. You will perceive that in his affidavit, 
 he does not mention a word about the opening of the valise,- 
 and my disturbing the goods, to all those who were present. 
 No mention was made of any such thing, but when he comes, 
 here, and in addition to being a witness, is clothed with a lit- 
 tle brief authority, and it is found that the Wenner goods, 
 and the charge growing out of them, pinches, and is likely to 
 fail, all that is necessary, is for Capt. Parker to learn the- 
 fact, and jack knives, handkerehiefs, gloves and French. 
 
5^3 • 
 
 covers are fl3'^ing in every direction." He had' not thbii'glit of 
 it before, but now it is fresh and vivid in His memory. ' Un- 
 fortunately for him, however, iii this respect, every one of the"' 
 parties named by him, as being preisent upon that occasion," 
 pronounce the statement utterly false, and they plainly tell" 
 you, that in that particular he has indulged in what seems to" 
 be with him a confirmed habit, tliat of lying. I wish you to 
 examine carefully that affidavit^ — you* will be able to obtain 
 valuable instruction. How this witness bore up against 
 strong temptations, his moral heroism, that not even elegant 
 diamonds could shake, his extensive knowledge, and means of 
 information, are wonderfully displa,yed. He is able to say, 
 that he knew of his own knowledge, that my expenses 
 amounted to more than double my pay, and many facts equal- 
 ly remarkable are found in that statement. ' ' 
 
 In this affidavit, he gives an entirely different version of 
 the Hertzler matter ; he does not even say, that Ullman saw*' 
 him, but does Say, that those men had, as he should say,' 
 $250,000, and Ullman requested me to release them, and that' 
 I told him he need not trouble himself about the business, for- 
 if the men were guilty, they would be held and the goods, 
 confiscated. That is his account of this transaction, which he 
 gives in his affidavit, and you recollect his present testimony- 
 in reference to it. If he could only be- induced to make one 
 more statement, it would be a matter of curiosity to compare 
 the three together. I think the Court will agree with me in 
 awarding due credit to the sagacity of Gol.' Olcott, when be- 
 not only subjected Parker to the double oath system, but for- 
 tified it by the certificate of credibility of Capt. French. If 
 a gentleman came in, one oath was considered sufficient, or 
 perhaps none ; but in other cases, two were administered, and 
 according to that they failed to have a single gentleman be- 
 fere them, because every affidavit taken there, bears the cer- 
 tificate of Capt. French, when they tell you he was not pre- 
 sent, when they either signed or swore to their affidavits. 
 
 The object of the explanation, was to relieve Capt. French, 
 but his conduct was not susceptible of any such explanation, 
 and hence the absurdity ; for Col. Olcott would not for a mo- 
 ment, wish us to understand him as meaning, that when a 
 person came there who could not be believed on one oath, they 
 would administer two, to bring him up to tlie standard 
 point ; and yet such is the necessary result of the attempted 
 explanation. According to this new system of administering 
 
52 
 
 oaths, what would be the ratio, or how many would hare to 
 be administered to certain parties who have been examined 
 on this trial. Instead of numbering, I would suggest that 
 they should adopt the measuring system, and in place of 
 counting out the requisite number, you measure out the 
 quantity required to meet the necessities of the subject. 
 Many of the witnesses examined in this case would have 
 given us no trouble in this respect, as they were perfectly 
 accommodated in any form. One to be sure, preferred to 
 keep on his hat, but the balance were satisfied with any 
 way that might be the most convenient. But whatever may 
 be the attempted explanation, the hand of Captain French 
 is seen at every shuffling of the cards, and the only ques- 
 tion with him was, whether the one or the other should 
 be trumps. 
 
 Having called your attention to the evidence bearing upon 
 the several points involved in the cause, I do not intend to 
 recapitulate ; it would be taxing your time and patience to 
 too great an extent. You have seen the positions in which 
 I have been placed, the difficulties I have had to encoun- 
 ter, the dangers to meet, you have seen by whom I have 
 been surrounded, and upon whom I have been obliged to 
 rely, you have seen the opportunities they had of ruining 
 almost any man, you have seen actions and conversations 
 developed that could only have been done by those around 
 me, and you have seen how t ley have been distorted and 
 misconstrued, how false motives, attributed to actions, have 
 been made to give tinge and color to those actions, and 
 you have seen how this course, pursued by those around me, 
 has caused charges to be brought against me, that should 
 cause the blush of shame to rise upon the cheek of every 
 honest and high-toned gentleman, you have seen the extra- 
 ordinary eiForts made, and I ask you, as gentlemen com- 
 posing this Court, is it not surprising that more of a doubt- 
 ful or suspicious character could not have been brought 
 against me. People of all kinds, of all faitlis, strangers to 
 yourselves and me, have been called into requisition. 
 
 It is an old saying, that you may set a rogue to catch a 
 rogue. People may adopt this very doubtful policy if they 
 think proper — my own opinion is, that if you have any volun- 
 tary connection with a rogue in any way, you are sure to get 
 the worst of it ; but I do protest against the employment of a 
 rogue to degrade an honorable man into a would-be thief. 
 
63 
 
 If a robbery has been committed, you pursue one course, but 
 do not employ a rogue to establish in the first place the fact of 
 the robbery having been committed, and then employ him to 
 ferret out the thief — and above all, when he fails in his labors, 
 do not pollute the altar of justice by offering him as a wit- 
 ness to substantiate that which he has failed to do without it. 
 In view of the character of some of the charges made against 
 me, and in order that you may the better appreciate all of the 
 surrounding circumstances, I desire to make some personal re- 
 marks. 
 
 [ Here read the statement of Col. Fish.] 
 
 I have brought before you my reputation and character for 
 honesty and integrity as a man. If they are to be entitled to 
 no weight and consideration, then let it be known to the ris- 
 ing generation of our country^ that all incentive to honorable 
 action is removed, that those sterling qualities of character, 
 which in the primitive days of our Fathers, were considered 
 as a shield with which we could protect ourselves against all 
 that envy, jealousy, hate or the machinations of our enemies 
 could accomplish, are of no longer any account. I have laid 
 before you my character as a soldier, and ask for it, at your 
 hands, buch consideration as soldiers can give. And it is for 
 you to say and determine, whether this is to be overborne and I 
 am to be crushed by what had been ofi'ered upon this trial. 
 If fall I must, I fall with the proud satisfaction, that as a sol- 
 dier I have been true to the country that gave me birth, true 
 to the cradle of liberty in which I was rocked, and true to 
 those instructions under which I have been reared and educa- 
 ted. That as a man, as a father, husband and child, I have 
 been true to the obligations resting upon me. 
 
 My cause, myself, and all I hold dear and sacred this side 
 the grave, is about to be placed into your hands. You will 
 not be able to discover all of the hidden springs that have 
 been put in motion to encompass my ruin, but I think you 
 may find sufficient in this record to furnish food for reflection. 
 I ask to be judged as you would wish to be judged under like 
 circumstances ; I entertain no vindictive feelings against any 
 one ; I leave all to their own reflections, for another, higher 
 than man, has said, "To me belongeth vengeance and re- 
 compense ; their foot shall slide in due time, for the day of 
 their calamity is at hand, and the things that shall come upon 
 them, make haste." I now submit my cauae, myself, and all 
 I have, into your hands, and in doing so, I cannot close with- 
 
out expressing to the members of the Court, my heart-felt 
 thanks for the uniform kindness and courtesy, with which I 
 have been treated through this long and laborious trial, and 
 to those friends who have kindly furnished me with material 
 aid in conducting this defence, and by their sympathy, have 
 sustained me through the trying ordeal I have been called 
 upon to pass, I now retire, with the fond hope that I may 
 again go forth to do battle for my country, and that erelong, 
 the hopes of wife and child, the declining faculties of an aged 
 mother, may soon be revived by the noiseless messenger car- 
 rying to them the glad tidings, that a father, husband and 
 child has been restored, and tliat at last, justice has triumph- 
 ed in this, a tribunal organized for its administration. 
 
 WM. S. FISH, 
 Colonel 1st Conn. Cavalry. 
 
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