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 William /\.Hsi-mmoncl 
 SLurijeoTi General U,S-A 
 
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 SMITHSONIAN DEPOSIT 
 
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 DEFElSrCE 
 
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 BRIG. GEN'L ¥1. A. HAMMOND. 
 
 SURGEOI^ GENERAL U. S. ARMY. 
 
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DEFENCE 
 
 BRIGADIER GENERAL WM. A. HAMMOND, 
 
 SUKGEON GENERAL U. S. ARMY. 
 
 The accused has been arraigned and tried upon the follow- 
 ing charges and specifications : 
 
 Charges, and Specifications -preferred against Brigadier General William A. Ham- 
 mondj Surgeon General United States Army. 
 
 CHARGE I. — -"Disorders and neglects to the prejudice of good order a.nd 
 military discipline." 
 
 Specification 1st. — "In this; that he, Brigadier General William A. Ham- 
 mond, Surgeon General United States Armj^, wrongfully and unlawfully con- 
 tracted for, and ordered Christopher C. Cox, as Acting Purveyor in Baltimore, 
 to receive blankets of one William A. Stevens, of New York. This done at 
 Washington city, on the seventeenth day of July, in the year of our Lord one 
 thousand eight hundred and sixty-two." 
 
 Specification 2d— "In this; that he. Brigadier General Williavi A. Ham- 
 mond, Surgeon General as aforesaid, did, on the first day of May, in the year of 
 our Lord one thousand eight hundred and sixty-three, at Washington city, 
 wrongfully and unlawfully, and with intent to favor private persons, resident in 
 Philadelphia, prohibit Christopher C. Cox, as Medical Purveyor for the United 
 States, in Baltimore, from purchasing drugs for the army in said city of Balti- 
 
 Specification 3d— "In this; that he, the said Brigadier General William A. 
 Hammond, Surgeon General United States Army, did unlawfully order and cause 
 one George E. Cooper, then Medical Purveyor for the United States in the city of 
 Philadelphia, to buy of one William A. Stevens blankets, for the use of the Gov- 
 ernment service, of inferior quality ; he, the said Brigadier General William A. 
 Hammond, then well knowing that the blankets so ordered by him to be pur- 
 chased as aforesaid were inferior in quality, and that said Purveyor Cooper had 
 refused to buy the same of said Stephens. This done at Philadelphia, in the 
 
State of Pennsylvania, on the twenty-eighth day of May, in the year of our 
 Lord one thousand eight hundred and sixty-two." 
 
 Specification 4th — In this ; that he, the said Brigadier General William A. 
 Hammond, Surgeon General as aforesaid, on the fourteenth day of June, in the 
 year of our Lord one thousand eight hundred and sixty-two, at the city of Wash- 
 ington, in the District of Columbia, unlawfully, and with intent to aid one Wil- 
 liam A. Stephens to defraud the Government of the United States, did, in writing, 
 instruct George E. Cooper, then Medical Purveyor at Philadelphia, in substance 
 as follows : 
 
 'Sir : You will purchase of Mr. W. A. Stephens eight thousand pairs of blan- 
 kets, of which the enclosed card is a sample. Mr. Stephens' address is Box 2500, 
 New York. The blankets are five dollars per pair;' and which blankets so or- 
 dered were unfit for hospital use." 
 
 Specification 5th — "In this ; that he, the said Brigadier General William A. 
 Hammond, Surgeon General United States Army, on the sixteenth day of June, 
 in the year of our Lord one thousand eight hundred and sixty-two, at the city 
 of Washington, did corruptly, and with intent to aid one William A. Stephens 
 to defraud the Government of the United States, give to the said William A. 
 Stephens an order, in writing, in substance as follows : 'Turn over to George E. 
 Cooper, Medical Purveyor at Philadelphia, eight thousand pairs of blankets;' 
 by means whereof the said Stephens induced said Cooper, on Government ac- 
 count, and at an exorbitant price, to receive of said blankets, which he had be- 
 fore refused to buy, seventy-six hundred and seventy- seven pairs, and for which 
 the said Stephens received payment at Washington in the sum of about thirty- 
 five thousand three hundred and fourteen dollars and twenty cents." 
 
 Specification 6th — "In this ; that he, the said Brigadier General William A. 
 Hammond, Surgeon General United States Army, on the thirty-first day of July, 
 in the year of our Lord eighteen hundred and sixty-two, at the city of Philadel- 
 phia, in the State of Pennsylvania, well knowing that John Wyeth & Brother 
 had before that furnished medical supplies to the Medical Purveyor at Philadel- 
 phia which were inferior in quality, deficient in quantity, and excessive in price, 
 did corruptly, unlawfully, and with intent to aid the said John AVyeth & Brother 
 to furnish additional large supplies to the Government of the United States, and 
 thereby fraudulently to realize large gains thereon, then and there give to George 
 E. Cooper, then Medical Purveyor at Philadelphia, an order, in writing, in sub- 
 stance as follows : 'You will at once fill up your store-houses, so as to have con- 
 stantly on hand hospital supplies of all kinds for two hundred thousand men for 
 six months. This supply I desire that you will not use without orders from me.' 
 And then and there directed said Purveyor to purchase a large amount thereof, 
 to the value of about one hundred and seventy-three thousand dollars, of said 
 John Wyeth & Brother." 
 
 Specification Tth— "In this; that he, the said Brigadier General William A. 
 Havimond, Surgeon General United States Army, about the eighth day of Octo- 
 ber, in the year of our Lord eighteen hundred and sixty-two, at Washington 
 city, in contempt of, and contrary to the provisions of, the act entitled 'An act 
 to reorganize and increase the eflBciency of the Medical Department of the Army,' 
 approved April 16, 1862, did corruptly and unlawfully direct Wyeth & Brother, 
 of Philadelphia, to send forty thousand cans of their 'Extract of Beef to vari- 
 
I 
 
 ous places, to wit : Cincinnati, St. Louis, Cairo, New York, and Baltimore, and 
 send the account to the Surgeon General's Office for payment ; and which 'Ex- 
 tract of Beef so ordered was of inferior quality, unfit for hospital use, unsuit- 
 able and unwholesome for the sick and wounded in hospitals, and not demanded 
 by the exigencies of the public service." 
 
 Specification 8tli— "In this ; that he, the said Brigadier General William A. 
 Ilammojid, Surgeon General United States Army, about the frst day of March 
 in the year of our Lord eighteen hundred and sixty-three, at Washington city 
 in disregard of his duty, of the interests of the public service, and of the re- 
 quirements of the act entitled 'An act to reorganize and increase the efficiency of 
 the Medical Department of the Army,' approved April 16, 1862, did order and 
 direct that the Medical Inspectors should report the result of their inspections 
 direct to the Surgeon General." 
 
 CHARGE II. — "Conduct unbecoming an officer and a gentleman." 
 
 Spfcification 1st— "In this; that he. Brigadier General William A. Ham- 
 mond, Surgeon General United States Array, on the thirteenth day of October 
 in the year of our Lord eighteen hundred and sixty-two, at Washington city, in 
 a letter by him then and there addressed to Dr. George E. Cooper, declared in 
 substance that the said Cooper had been relieved as Medical Purveyor in Phila- 
 delphia because, among other reasons, 'Halleck,' meaning Major General Henry 
 W. Halleck, General-in-Chief, requested, as a particular favor, that Murray might 
 be ordered to Philadelphia ; which declaration so made by him, the said Briga- 
 dier General William A. Hammond, Surgeon General as aforesaid, was flilse." 
 
 An additional charge and specifications preferred against Brigadier General 
 William A. Hammond, Surgeon General United States Army : 
 
 CHARGE III —"Conduct to the prejudice of good order and military dis- 
 cipline." 
 
 Specification 1st— "In this; that he, the said Brigadier General William A. 
 Hammond, Surgeon General United States Army, on the 8th day of November 
 A. D. 1862, at Washington city, did, unlawfully and corruptly, .order and cause 
 Henry Johnson, then Medical Storekeeper and Acting Purveyor at Washington 
 city, to purchase three thousand blankets of one J. P. Fisher, at the price of 
 $5.90 per pair, and to be delivered to Surgeon G. E. Cooper, U. S. A., Medical 
 Purveyor at Philadelphia." 
 
 Specification 2d— "In that he, the said Brigadier General William A. Ham- 
 mond^shoMi the 3d day of December, A. D. 1862, at Washington city, unlaw- 
 fully and corruptly purchased, and caused to be purchased, of J. C. McGuire k 
 Co., large quantities of blankets and bedsteads, and which were not needed for 
 the service." 
 
 By order of the President of the United States : 
 
 Judge Advocate General. 
 
In submitting to the consideration of the Court a case 
 which has occupied nearly three months of incessant labor, 
 and has been stretched by the prosecution over a very exten- 
 sive field of enquiry, the accused feels that a few prefatory 
 words may not be inappropriate. 
 
 The patient and courteous attention the Court has given 
 to the case, justifies him in the expectation that they will 
 weigh carefully, and with candid minds, the views of the 
 law and the testimony it becomes his duty to develop, and 
 he hopes that beyond this, they will appreciate the peculiar 
 circumstances surrounding and influencing his responsible 
 and greatly complicated duties, which he thinks should be 
 measured by no contracted rule deduced from the past ex- 
 perience of the service, but ought to be estimated in the 
 light of a new and suddenly developed necessity, which, tax- 
 ing to the utmost the resources of the country itself, de- 
 volved upon the Department over which the accused was 
 called to preside, duties and responsibilities to which its 
 previous machinery was very inadequate, and which de- 
 manded prompt and energetic action. The accused is very 
 far from indulging in any self-laudation^ but common justice 
 he thinks requires that whatever there was peculiar in the 
 surroundings of his official position should be fairly consid- 
 ered. A system of administration adequate to supply the 
 wants of less than twenty thousand men during a time of 
 unbroken peace, stands in striking contrast to the require- 
 ments of a Department called upon to minister to the myriad 
 w^ants of a million of men. It was likewise essential that 
 as this great country in its struggle against rebellion had 
 attracted the regards and admiration of the world by the 
 rapid and wonderful development of its resources in all other 
 l)ranches of the national service, the administration of its 
 Medical Department should also be equal to its new expe- 
 rience, and that the soldiers of the State should not only go 
 into the field fully supplied with medical stores, but that in 
 camp and hospital, on the field and in the bureau, our sys- 
 tem and its practical working should at least be equally ef- 
 ficient with that of any of the leading European nations, 
 of whose experience in frequent and protracted wars we 
 had become the heritors. 
 
It was, therefore^ with no little ambition thus to admin- 
 ister his Department, and with large views of his duties and 
 responsibilities that the accused went into office. 
 
 In his construction of the powers conferred upon him by 
 the law, the then existing regulations, themselves law, and 
 the former practice of the Bureau itself, he does not consider 
 himself mistaken ; for his experience has but the more 
 strongly satisfied him that for the energetic and thoroughly 
 intelligent administration of the Surgeon General's office, 
 there should be resident in that officer the power of prompt 
 action, when circumstances, sudden in their origin and in 
 the very nature of things known to him in advance of, and 
 more completely than to his subordinates, require such 
 action. He will presently fully discuss the law of the case, 
 and trusts to make clear to the Court the correctness of the 
 view by which he has been governed. Before doing this, 
 however, he has a single reference to make to the imputa- 
 tions upon his official integrity and personal honor involved 
 in the charges and specifications upon which he has been 
 tried. 
 
 To lose an official position, even though it be as high and 
 honorable as the one he holds, is of small relative import- 
 ance ; but to have a reputation hitherto unstained and un- 
 suspected, held up to the notice of his fellow-citizens and 
 the scrutiny of his military peers, upon allegations of fraud, 
 corruption, and even of personal untruthfulness, is more 
 difficult to bear. Upon this part of the case he points to 
 the twenty-four hundred pages of record before you, on 
 which it has been sought to impress the proof of his corrupt 
 conduct, and he invites to it your closest scrutiny, in the ab- 
 solute confidence of an integrity of purpose and conduct its 
 volumes fully vindicate in despite of a prosecution that has 
 spared no labor to convict, and of the marked peculiarities 
 of which he will not at this time trust himself further to 
 speak. 
 
 The moment that lie found that his official conduct was 
 called into question, he sought with earnest and persistent 
 effort for this opportunity of vindication, and he has been 
 sedulously careful to invite the fullest scrutiny of all that he 
 
8 
 
 has done. He Las desired neither evasion nor concealment, 
 and he now submits his case to the consideration of the 
 Coiirtjwhose members can have no feeling beyond the soldierly- 
 desire to reach such conclusions as may be justified by the 
 substantial merits of the case. 
 
 At the very threshold of the enquiry then we are met by 
 the question : What are the powers and duties of the Sur- 
 geon General ? 
 
 The first charge is "disorders and neglects to the prejudice 
 of good order and discipline." 
 
 And the first specification is that the accused "wrongfully 
 and unlawfully contracted for and ordered Christopher C. 
 Cox, as Acting Purveyor in Baltimore, to receive blankets 
 of one William A. Stephens of New York. This done at 
 Washington City, on the seventeenth day of July, in the 
 year of our Lord, one thousand eight hundred and sixty-two." 
 
 It is sufficient for the present enquiry to take the order of 
 the Surgeon General, p 34 of tlie record, as the basis of this 
 specification, without enquiring as to what preceded it, but 
 for the purpose of the argument assuming that this was the 
 first step leading to the order given by Dr. Cox to Stephens, 
 on the 38th page of the record. With this must also be 
 associated two other facts ; first the telegram from Dr. Cox 
 to the Surgeon General, dated 2nd July, 1862, on page 00, 
 and the telegram of Dr. Cox to Mr. Stephens, on the 4th of 
 July, 1862, page 00, and that the blankets were good and 
 at a fair price. 
 
 The facts will then appear in substance as follows : Dr. 
 Cox had received an order to send a supply of blankets to 
 Fortress Monroe. He had none on hand, and could not pro- 
 cure them in Baltimore, and sent an agent to New York to 
 get them. Of these facts he informed the Surgeon General 
 by telegram of the 2nd of July, 1862. On the 3d of July 
 he telegraphed Stephens in New York to send them — on the 
 4th he telegraphed him not to send them, as he was supplied. 
 He did not communicate these two last telegrams or the fact 
 that he was supplied to the Surgeon General. 
 
 On the 10th of July the Surgeon General ordered him to 
 purchase from Stephens. 
 
The question is, liad the Surgeon General power by law 
 to direct this purchase. 
 
 The act under which the accused was appointed to office, 
 to wit: the act of 16th of April, 1862, does not create the 
 office of Surgeon General, nor does it define or limit his 
 powers, except in some two or three particulars ; nor does it 
 prescribe the mode of action for the powers which he may 
 lawfully exercise. 
 
 The 2d section provides "that the Surgeon General to be 
 appointed under this act shall have the rank, pay and emolu- 
 ments of a Brigadier General. There shall be one Assistant 
 Surgeon General, and one Medical Inspector General of 
 hospitals ; * * and the Medical Inspector General shall 
 have, under the direction of the Surgeon General, the super- 
 vision of all that relates to the sanitary condition of the 
 army, * * * imder such regulations as may hereafter he 
 established. 
 
 Section 3d. There shall be eight Medical Inspectors, * * 
 who shall be charged with the duty of inspecting, * * 
 and who shall report to the Medical Inspector General under 
 such regulations as may hereafter be established. * * 
 
 Section 4th. All these officers shall, immediately after the, 
 passage of this act, be appointed * * by selection from 
 the medical corps of the army, or from surgeons in the vol- 
 unteer service, without regard to their rank when so selected, 
 and with sole regard to qualifications. 
 
 Section 5th. The Medical Purveyors shall be charged, im- 
 der the direction of the Surgeon General, with the selection 
 and purchase of all medical supplies. * * J»i all cases of 
 emergency they may provide such additional accommodations 
 for the sick and wounded of the army, and may transport 
 such medical supplies as circumstances may render necessary, 
 under such regulations as may hereafter he established ; and 
 shall make prompt and immediate issues upon all special re- 
 quisitions made upon them under such circumstances by 
 medical officers ; and the special requisitions shall consist 
 simply of a list of the articles required, the qualities required, 
 dated and signed by the medical officers requiring them." 
 
 The substance of the whole act bearing upon the questions 
 
10 
 
 involved in these issues has been inserted to avoid repetition 
 when the question of the powers of the Surgeon General, 
 involved in the 8th specification of the first charge, come to 
 be considered. 
 
 It is thus clearly apparent that the Legislature, by this 
 act, recognize the existing office of Surgeon General, and 
 also the office of Purveyor. Neither of these offices is cre- 
 ated by this law ; both are embraced in its provisions. 
 
 The rule of interpretation, perfectly consonant with the 
 plainest common sense, is settled. We are to look back for 
 the law creating these offices, and defining the duties ap- 
 purtenant to each. 
 
 The designation of the respective offices marks the duties 
 appurtaining to them. The Surgeon General, unless there 
 be some superior known to the law, implies the head of the 
 Medical Department. The word purveyor means one who 
 selects and purchases supplies, generally under the direction 
 of another. A purveyor of the Medical Department carries 
 with it the idea as inseparable from it, of an officer charged 
 with the selection and purchase of medical supplies under 
 the direction of the head of the Department, unless by law 
 there is a restriction on the powers of that superior. 
 
 But we are not left to philological speculation on this sub- 
 ject. It has received judicial construction from the highest 
 tribunal in the country whose decision is law until changed 
 by constitutional legislation. 
 
 The office of Surgeon General was created by the act of 
 3d March, 1813, 3 Stat, at large, p. 819, 20 ; § 7, and ^'his 
 powers and duties" were to "&e prescribed by the President 
 of the United States." The office of Apothecary General 
 was created by the same section, with like limitation as to 
 his powers^ but that office was dropped when the military 
 peace establishment was reduced by the act of 2d March, 
 1821, 3d Stat. 616, § 10. 
 
 It is well settled as any other rule of construction, that 
 when power is given to the President by law over any one 
 of the several branches of the Executive Department, the 
 head of such Department acts as the President, and orders 
 issued, or regulations promulgated by him, are orders and 
 regulations of the President. 
 
11 
 
 Wilcox vs. Jackson, 13 Pet., 498: U. S. vs. Eliason, 16 
 Pet., 291 : Williams vs. U. S., 1 How., 614, are all cases 
 directly in point, and equally so is that of Freeman vs. U. S., 
 3 How., 556. 
 
 We have then the law creating the office, and express au- 
 thority given to the President to define the powers and du- 
 ties of the Surgeon General. 
 
 The earliest regulations on this subject which are now ex- 
 tant are those of Sept, 1818, issued " By order (signed) 
 D. Parker, Adj. & Ins. Genl.," [which were added to in 
 March 1819,] and an original copy of both of which is ex- 
 hibited to the Court with this paper. 
 
 By the first paragraph the Surgeon General is made '^the 
 director and immediate accounting officer of the Medical 
 Department. He shall issue all orders, and instructions re- 
 lating to the professional duties of the officers of the Medi- 
 cal Staff; and call for and receive such reports and returns 
 from them as may be requisite for the performance of his 
 several duties. 
 
 The Apothecary General was, with his assistant, empow- 
 ered to ''purchase (according to an estimate therein pro- 
 vided for) all medicines , &c., required for the 'public service 
 of the army" — {p. 4.) 
 
 This was the germ of the medical purveyorship. Thus 
 the law continued to 1832, when new regulations signed, 
 ''By order of Maj. Genl. Macomb, K. Jones, Adjt. Genl.," 
 dated 13th Aug., were promulgated under authority of the 
 War Department. The first paragraph of these is almost 
 totidem verbis, that of the regulations of 1818. There were 
 then in the service Medical Directors who were charged with 
 almost the identical services by the act of 16tli April, 1862, 
 imposed on the Medical Inspectors, and they had to report, 
 by the 2d paragraph, to the Surgeon General. The 13th 
 paragraph, p. 5^ contains the same provision as to medical 
 supplies to be purchased by the Apothecary, as in the pre- 
 vious regulations. 
 
 The next regulations were issued in 1840 by J. E. Poin- 
 sett, Secretary of War. 
 
 The first paragraph is as follows : "The Surgeon General 
 
12 
 
 is stationed at the city of Washington, and is under the di- 
 rection of the Secretary of War charged with the adminis- 
 trative details of the Medical Department, and has complete 
 control of all the officers belonging to it." The words in 
 italics are, except in the designation of the officer, the words 
 used in the 5th section of the act of 16th April, 1862, 
 in giving the power of purchase, &c., to purveyors. 
 
 Paragraph 14, p. 3. The Medical Purveyors luill under 
 the direction of the Surgeon General * * * purchase all 
 * (medical supplies.) 
 
 Here we have the same phraseology used in giving power 
 to the Surgeon General under the direction of the Secretary 
 of War, as is given to the purveyors in their office under 
 the direction of the Surgeon General, and it would be ex- 
 ceedingly difficult, it is thought, logically impossible to 
 make a distinction between the two. 
 
 In 1850, Sept. 25, new regulations were promulgated by 
 C. M. Conrad, Secretary of War. The first sentence of the 
 first paragraph of these regulations is copied from those of 
 1840. The second is as follows : ''He will assign Surgeons 
 and assistant Surgeons to regiments, posts, or stations, and 
 will issue all orders and instructions relating to their pro- 
 fessional duties, and all communications from them, lohich 
 may require the action of the Secretary of War, or the Gen- 
 eral commanding the army will be made direct to him." 
 
 In the 3d paragraph "He will require from the medical 
 purveyors quarterly accounts current of moneys received 
 and expended by them, with estimates of the funds required 
 for the ensuing quarter ; and the returns of articles received 
 and issued with duplicates of the invoices of all supplies put 
 up for, and delivered or forwarded to the several Surgeons 
 or Assistant Surgeons of the army and the private physi- 
 cians employed. 
 
 The 4th section provides still further for the accounting 
 by the purveyors to him, and through him to, and with the 
 Treasury Department. 
 
 The 5th that the Medical Directors shall report to him, 
 &c. 
 
13 , 
 
 Article 7, p. 10, — The Medical Purveyors ivill, under the 
 direction of the Surgeon General * * purchase all medi- 
 cines, hospital stores, &c., required for the Medical Depart- 
 ment of the army, &c. 
 
 The 18th provides for the issuing of the supplies so pro- 
 vided by them. 
 
 The 19th and 20th for their accounting to the Surgeon 
 General. 
 
 Thus stood the law, and the regulations under it, without 
 any material modification of them at the passage of the act 
 of the 16th April, 1862. There are regulations in 1856, 
 '57, and '60, but they do not modify or change those al- 
 ready referred to. 
 
 We have seen how far that law in terms changed the law 
 as it then stood in relation to the Surgeon General, and the 
 Medical Purveyors. That it did not in express terms repeal 
 it is beyond dispute. Did it effect such repeal by implica- 
 tion? 
 
 On this point there is scarcely room for the most severe and 
 accurate criticism to raise a question of doubt. The case of 
 Wood vs. the United States, 16 Pet., 362, in the Supreme 
 Court, involved the question of the repeal of a law by impli- 
 cation, and if not conclusive is very instructive in this case. 
 Judge Story delivering the opinion of the Court says, 
 *'The question then arises whether the 66th section of the 
 act of 1799, ch. 128, is repealed, or whether it remains in 
 full force. That it has not been expressly or by direct terms 
 repealed is admitted ; and the question resolves itself into 
 the more narrow inquiry, whether it has been repealed by 
 necessary implication. We say by necessary implication, for 
 it is not sufficient to establish that subsequent laws covers 
 some or even all of the cases provided for by it ; for they 
 may be merely affirmative, or cumulative, or auxiliary. — 
 But there must be positive repugnancy between the provisions 
 of the new laws, and those of the old ; and even then the 
 old law is repealed by implication only pro tanto to the ex- 
 tent of such repugnancy." 
 
 The rule thus distinctly enunciated by the Supreme Court 
 is directly, and especially applicable to this case. We have 
 
14 
 
 here a statute, not creating an office, but providing for an 
 office already existing, and prescribing a selection for that 
 office from particular classes of persons ; not prescribing the 
 powers and duties of the officer, but necessarily implying 
 them as well settled. There is therefore not only no repug- 
 nancy between the two laws, but an emphatic though silent 
 recognition of the old law, both as to the Surgeon General, 
 and the Medical Purveyor. Indeed the phraseology of the 
 5th Section is such as to admit of no doubt that Congress re- 
 cognized the existence of the former law and regulations then 
 in existence. For iu the second sentence of that section they 
 in terms provide new duties for the Purveyor, to be perform- 
 ed under such regulations as shall thereafter be established, 
 recognizing the power of some superior authority to make 
 regulations, and (indirectly) the existence of regulations un- 
 der which all other duties were to be performed. !Not a word 
 is said of regulations in respect to the selection and purchase 
 of supplies and their distribution generally ; as to all such 
 duties as were theretofore imposed by regulations on the pur- 
 veyors, and which were necessarily subjects of regulation, 
 without which indeed there could be neither system nor ac- 
 countability. But these new duties were to be performed 
 under new regulations thereafter to be established, so as to 
 make the whole homogeneous and consistent, and to bring 
 under one head all the administrative details of the depart- 
 ment. 
 
 Every rule of interpretation combines to make the recog- 
 nition of existing regulations part of the new law. The very 
 phraseology of the act, the power of direction given to the 
 Surgeon General and the power of selection and purchase 
 under such direction are borrowed from the regulations then 
 existing, and give an unmistakeable significance to the inten- 
 tion of the Legislature. 
 
 But this is not all. The Supreme Court, in the case of 
 The United States vs. Freeman, 3 Howard, 364 : have re- 
 moved all doubt on this subject. They say " the correct rule 
 of interpretation is, that if divers statutes relate to the same 
 thing, they ought all to be taken into consideration in con- 
 struing any one of them, and it is an established rule of law 
 
15 
 
 that all acts in pari materia are to be taken together as if 
 they were one law. If a thing contained in a subsequent 
 statute he within the reason of a former statute, it shall he taken 
 to he toithin the meaning of that statute." 
 
 Nothing could be more apposite to the question under con- 
 sideration. The reasons of the former statute creating the 
 office and giving to the President the right to define and 
 limit the powers and duties of the officer when the army was 
 small and the country in the midst of peace and prosperity, 
 have ten-fold more force and potency Avhen applied to a con- 
 dition of intestine war — when -a million of men are in the 
 field, and the country is torn with the fury of hostile armies ; 
 when the Medical Department is to be reorganized, and its 
 powers and duties multiplied, and so vastly extended, and 
 where the detail of its duties must depend on so many con- 
 tingencies. 
 
 But the opinion proceeds at page 365. "If it can be gath- 
 ered from a subsequent statute in pari materia, what mean- 
 ing the Legislature attached to the words of a former statute 
 they will amount to a legislative declaration of its meaning 
 and will govern the construction of the first statute." Here 
 too we find the same reason prevailing ; for it is obvious that 
 the Legislature in this last act intended to recognize the ex- 
 istence of regulations by which the Surgeon General was re- 
 cognized as the head of the Department, having control over 
 the purchase and distribution of the medical supplies. 
 
 Again at page 367 the Court says, "The Army regulations 
 when sanctioned by the President, have the force of law, be- 
 cause it is done by him by authority of law," p. 366. " The 
 President sanctioned those regulations, and by doing so, del- 
 egated his authority as he had a right to do to the Secretary 
 of War." 
 
 It is impossible on these citations to escape from the con- 
 clusion that the Act of 16th April, 1862, left in full force 
 the regulations then existing, and the power of the Presi- 
 dent to modify or repeal them. 
 
 Finally the same Court has said in The United States vs. 
 Eliason, 16 Pet., 302 : The Secretary of War is the regular 
 constitutional organ of the President for the administration 
 
16 
 
 of the Military establishment of the nation : and the rules 
 and orders promulgated through him must be received as the 
 acts of the Executive, and as such be binding on all within 
 the sphere of his legal and constitutional authority. 
 
 Taking these rules as our guide, it cannot successfully be 
 denied that the Surgeon General had the power to control 
 the purveyors in their purchases ; to direct what they should 
 purchase, when they should purchase, from whom they 
 should purchase ; and prohibit them from purchasing at par- 
 ticular places or from particular j^ersons. For the abuse of 
 such authority he would be held amenable to the judgment 
 of a Court Martial ; for a proper and faithful exercise of it 
 he is responsible to his country. 
 
 And such has been the received construction in the De- 
 partment itself as is abundantly shown in this case, by the 
 evidence in the record of the orders given by the Surgeon 
 General Findley to purchase from the Wyeths and others. 
 
 But we go further. We maintain that he had authority 
 in the exercise of a sound discretion to make purchases him- 
 self. For the power given him to direct the purveyors in 
 their selection and purchase, implies the power in himself to 
 make such purchases if he shg-U see fit. They are to be 
 charged with the selection and purchase. But that is sub- 
 ordinate to the power of the Surgeon General to direct such 
 selection and purchase, and included in that general autho- 
 rity to him as the less is included in the greater. And such, 
 as is shown in this record by the contracts made by his pre- 
 decessor, was the received construction of the office at the time 
 of his accession to it. There must be something morally 
 wrong, some bad motive^ some corrupt intent, to subject him 
 to trial for the exercise of the power. 
 
 The power given the purveyor is intended to be auxiliary 
 to the authority granted to, and the duty imposed upon the 
 Surgeon General, because it would be physically impossible 
 for him in the multitude of the onerous duties imposed on 
 him, to give his personal attention to the procuring of the 
 supplies. It is not and was not intended to be an exclusive 
 and independent power — nor is that required by the policy 
 of the law, or the character of the duties with which they 
 
IT 
 
 are charged. It would be inconsistent with all the residue 
 of the power granted to him so to construe it, and it is in all 
 respects consistent with those powers to recognize him as the 
 head having the power to do the thing and them as the 
 agents acting under his directions. 
 
 Most of these positions apply with still greater force to the 
 8th specification of the first charge, as to his giving orders 
 to the inspectors to report directly to him. 
 
 In the first place there was no Inspector General till Au- 
 gust, 1862. From the time he did report for duty in August, 
 18B2, he made no report to the Surgeon General except an 
 annual report and reports on special duties, with which 
 he was charged hy the Surgeon General. Such is the dis- 
 tinct and positive proof on the record. 
 
 But this order is merely cumulative. It does not prohibit 
 the Inspectors from reporting to the Inspector General. Its 
 utmost scope is to obtain from them that information which 
 every one must see was essential to the proper discharge of 
 his duties in providing for the health of the soldiers, guard- 
 ing against the dissemination of disease, administering 
 to the relief of the sick and wounded, and which had previ- 
 ously by tacit custom been sent direct to him by the Inspect- 
 ors. It is too apparent he had no other means of procuring 
 the material knowledge so essential to the due administra- 
 tion of his office, and without which he would have been 
 justly held to accountability for neglect or incapacity, and 
 it fell vv'ithin the necessary scope of his powers to require 
 from all his subordinates every species of information which 
 they could contribute to enable him to organize and carry 
 out the schemes of medical treatment which daily exj^erience 
 enabled him to ripen and perfect. Moreover it is shown that 
 at the time he so ordered the Medical Inspectors to report to 
 him, the regulations which the law requires to give it eifect 
 had not been established. 
 
 As though the prosecution had anticipated this construc- 
 tion of the law, and to guard against a failure on that ground, 
 they have followed up the first specification of the first charge 
 by a second specification, charging that the accused not only 
 wrongfully and unlawfully, but also with intent to favor 
 2 
 
18 
 
 private persons resident ia Philadelphia, did prohibit Chris- 
 topher C. Cox, as Medical Purveyor for the United States in 
 Baltimore, from purchasing drugs for the army in said city 
 of Baltimore. 
 
 It is not specified who the private persons were in Phila- 
 delphia^ thus intended to be benefitted, nor that Dr. Cox was 
 prohibited from purchasing every where else except in Phila- 
 delphia, nor that he was directed to purchase from any par- 
 ticular individuals — it is he was prohibited from purchasing 
 in Baltimore. Greater uncertainty, less precision, a broader 
 net for the introduction of loose and irrelevant proofs under 
 the cover of showing the intent have rarely been presented to 
 a court, and the record shows it was availed of to an extent 
 that is almost marvellous. Indeed in no other way could 
 they have introduced the proof they have put upon the record 
 of the arrangement made by the Sanitary Commission to 
 supply the hospitals in and about Washington daily with 
 fresh, wholesome marketing and vegetables, and by which 
 they designed to show a collusion and injurious association 
 to the injury of the patients between the accused and that 
 noble charity. Fortunately for the accused, and the inter- 
 ests of humanity, that effort not only signally failed, and 
 stands rebuked by the evidence of Dr. Abbott and Mr. 
 Knapp, but it is clearly shown by the testimony of the latter 
 that the accused did not fixvor the purchases in Philadelphia, 
 preferred the market of Baltimore, and did not relinquish 
 that preference until careful enquiry had shown that Phila- 
 delphia was more reliable and cheaper. 
 
 We come back then to the prohibition to Dr. Cox as the 
 remaining ground of this specification. If we are right in 
 the construction of the law, there is nothing in the evidence 
 which has the weight of a feather in proving the intent 
 charged. 
 
 It is beyond dispute that nearly a year before the time 
 named in this charge, the accused had established five princi- 
 pal purchasing purveyorships, of which Baltimore was not 
 one : that in despite of this order, which was publicly an- 
 nounced and of which Dr. Cox had notice. Dr. Cox continued 
 to buy and to buy largely in Baltimore, while the accused was 
 
19 
 
 laying up vast stores of hospital supplies in otlier cities where 
 they could be more advantageously purchased, and whence 
 they could he more conveniently distributed. That they 
 could be purchased more advantageously in New York and 
 Philadelphia is distinctly shown, both by the testimony of 
 Surgeon J. R. Smith as to Philadelphia, and the concurrent 
 testimony of the bills, and witnesses scattered through the 
 record. 
 
 Now no rule is better settled both in the judicial forum and 
 that of common sense and common justice in the applica- 
 tion of evidence than that vv^hich prohibits the imputation of 
 a wrong motive when a fair and honest one is equally appar- 
 ent. We are not obliged to resort to the rule in this case, 
 for it is proven that the order referred to in the specification 
 was but intended to carry into effect the general order already 
 mentioned, disregarded by Dr. Cox, to the extent, (as is 
 shown from the tabulated statement of the amounts expend- 
 ed in the several cities certified from the office of the Sur- 
 geon General,) that after the promulgation of the order of 
 May, 1862, establishing the purchasing depots, Dr. Cox 
 actually purchased in Baltimore to an amount quite equal to 
 the ratio of the purchases in Philadelphia and New York, 
 taking either the population or the trade of the three cities 
 as the basis of the calculation. 
 
 There is then not a shadow of suspicion, much less of direct 
 proof in support of the first two specifications of the first 
 charge, and it is confidently believed the 8th specification is 
 equally groundless. 
 
 Before discussing in detail the testimony bearing on the 
 different specifications, it is proper to exhibit the relation 
 borne to the record by the chief witness of the prosecution^ 
 Surgeon George E. Cooper, late Medical Purveyor at Phila- 
 delphia. Upon his shoulders mainly rests the case of the 
 Government. Smarting under rebukes administered in no 
 hostile spirit, and attributing to the accused reflections upon 
 his conduct with which lie had nothing whatever to do, this 
 Ajax of the prosecution came into Court, with a positiveness 
 of statement, and an earnestness of testimony, that rapidly 
 built up allegation after allegation, and his large memory of 
 
20 
 
 events seemed as exliaustless as the constantly recurring 
 necessities of the case. 
 
 It gives the accused no pleasure to exhibit this witness to 
 the Court in his true colors, and he will indulge in no harsh 
 words in connection with him, but let the record tell the 
 story of his utter discredit. If in the face of the crushing 
 testimony against him, the Court can by any possibility ad- 
 judicate this case on the basis of what he has said, the ac- 
 cused feels that he is simply wasting the time of the Court 
 by a defence, for it will surely be difficult to find in the his- 
 tory of contested cases, an instance in which, in addition to 
 the flagrant self-contradictions of the Avitness, such a mass of 
 unimpeached testimony has borne a witness to the earth, 
 as in this case. 
 
 At the beginning of his testimony, Dr. Cooper volunteers 
 the statement that he received a present, through the accused, 
 of whiskey from John Wyeth, with whom he was not ac- 
 quainted, and that the accused at the same time asked him to 
 recommend the Wyeths to Surgeon General Finlay. Frank 
 Wyeth swears, on the contrary, that the whiskey was con- 
 signed to Cooper by them, through Adams' Express, and re- 
 ceived by him, without any knowledge or agency of accused, 
 and that the Wyeths had no need of recommendation to Dr. 
 Finlay, to whom, on his own order, they had in the year 
 previous, furnished over eighty thousand dollars worth of 
 supplies. 
 
 Cooper says when he so recommended the Wyeths to Dr. 
 Finlay, he did not knov*^ them, and afterward he swears he 
 had formed the acquaintance of the Wyeths while in Balti- 
 more, and before he had his interview with Dr. Finlay on 
 the subject ! He says that before he went to Hilton Head, 
 he had known the Wyeths ; then says he did not know 
 Frank when he returned ! He says that when he went to 
 their store, on his return from Hilton Head, he had a con- 
 versation with John Wyeth, which Frank Wyeth flatly 
 contradicts, and gives the conversation that passed on that 
 occasion between himself and Dr. Cooper ! He says that he 
 bought everything from the Wyeths — "■ hospital stores, 
 books, instruments, and everything else," all which he sub- 
 
21 
 
 sequently reiterates ; and yet later in the testimony he swears 
 he got nothing hut drugs and medicines of them ! 
 
 He says he examined the liquors and teas at the West 
 Philadelphia Hospital, and they were all bad ; and Drs. 
 Hayes, Baldwin and Kowe, who were the Surgeons in charge, 
 contradict him, and testify that they were all used in the 
 hospital service, for which they were fit, except a small lot 
 of tea ! 
 
 He says that in the latter pai't of the first week in June, 
 1862, Wm. A. Stevens brought to his ofiice a sample of 
 blankets of which he said he had 8,000 pairs, and when it 
 became necessary to prove by Paton the value of these 
 blankets, and Paton fixed as the latest day when he eould 
 have seen them at Cooper's ofiice, the second of June ; he 
 produces a letter from Stevens to him of June 2d, stating 
 that Hayes had the day before sent to him (Cooper) the 
 sample blankets, together with a letter to himself (Stevens) ; 
 while Stevens swears positively he never saw the sample of 
 blankets so referred to ! He swears that on the 15th June 
 he wrote a letter to the accused, which he copied upon paper 
 used in his office at Philadelphia, which copy he produces 
 and puts on the record, and that the original of that letter 
 was put away in a pigeon-hole of his desk, of which he gen- 
 erally carried the key, and to which his clerks had not ac- 
 cess ; while not one of his clerks ever saw any such paper in 
 his ofiice, all testifying to his unvarying use of a wholly dif- 
 ferent character of paper ; they also proving that they had 
 free access to his desk and drawers, and that they were never 
 locked but when he had money in them on Saturdays ! Be- 
 sides all which Captain Elliot, one of them, and a confiden- 
 tial clerk, swears he had constant access to his desk, and 
 frequently arranged the papers in the pigeon-holes ! 
 
 He is positive in his recollection that he saw the accused 
 in Philadelphia as early as July 29th, 1862, while Dr. J. 
 K. Smith, as well as the letter on record of the 29th of July, 
 and the telegram of the 30th, establish the fact that the ac- 
 cused had not at tlie time left Washington ! 
 
 He says Magruder's requisition in August, was left by the 
 accused at Wyeth's store to be put up and to be received, 
 issued and paid for by him (Cooper,) that accused wrote on 
 
22 
 
 it what was to be put up by Wyeth, and what by himself: 
 and that said requisition was brought to him by Frank 
 Wyeth, and that only after repeated requests : while Frank 
 Wyeth positively swears that the requisition was left with 
 him by accused because he had not time to go to Cooper's 
 office, with instructions to take it to Cooper ; and that he did 
 so take it to him within a few hours after he received it, and 
 that the order to furnish was given by Cooper. 
 
 He swears that he examined Tiklen's Extract of Beef at a 
 time when it is shewn by the proof it was not even manufac- 
 tured. He swears that he gave no orders to VvTyeth for Sul- 
 phate of Cinchonia, and we put on the record three ! 
 
 He swears lie traded his horse and saddle to John Wyeth 
 for a horse and buggy, and that he did not return either 
 horse or buggy — he then swears he did return the wagon, 
 because he did not want to be under obligations to Wyeth ; 
 and then on re-esamination he swears he returned it, because 
 it was part of the bargain 1 
 
 He swears he was buying of Paton, in June, 1862, ten 
 pound white blankets, at 45 cts. a pound, and the proof is clear 
 that there is no such thing known in the market as a ten 
 pound white blanket, except for family use ! 
 
 He admits that without the knowledge or consent of Dr. 
 Murray, his successor in the office of purveyor, he caused to- 
 be copied by one of the purveyor's clerks, a private letter to 
 Dr. Murray from Dr. A, K. Smith, which he says he found 
 in his office, and which copy he was also bold enough to 
 produce and put in evidence, because it seemed to bear on 
 the case of the accused. 
 
 He swears that in a conversation with Medical Inspector 
 Vollum, he did not use certain language of bitter hostility 
 to the accused. And Inspector Vollum swears he did t 
 He swears that he did not use language about the accused, 
 also shewing his hostility in conversation with Dr. A. K. 
 Smith ; and yet Dr. Smith proves positively that he did I 
 He swears that in connection with the letter to him from the 
 Surgeon General of 13th October, he tlid not use in relation 
 to the accused the v>^ords to which he was directly interroga- 
 ted on cross examination ; and Frank Wyeth proves that he 
 shewed him that letter, and speaking of the accused, said, 
 
23 
 
 "here's a letter from Bill Hammond, the g — d d — d son of 
 ah — h, this goes to the Secretary of War to-night!" and 
 the letter in question a ^private letter to him, at that ! 
 
 But to repeat all the instances of similar contradictions and 
 misstatements the record discloses would fatigue the Court, 
 and the accused will only add two or three conclusive in- 
 stances. Dr. Cooper swore with great positiveness that he 
 never wrote a letter to the accused, bearing date June 16th, 
 18G2, and subsequent to his interview with Stevens about the 
 blankets, and that he received no communication from him 
 in that connection, except the telegram of the 17th of June : 
 he swears that in his interview witli accused of 3d May, 
 1862, he was directed to make all his purchases from the 
 Wyeths, and acted in obedience to such instructions, and 
 that on the 31st of July he was instructed to purchase from 
 them upwards of $200,000 of the requisition for two hundred 
 thousand men, which he only obeyed in part ; and yet we 
 produce and put on the record two letters from the accused to 
 Mm — one of date 17th June, and the other 29th July, 1862, 
 and received by him on the 18th June and 30th July re- 
 spectively, which utterly destroy all confidence in any of the 
 statements so made by him. 
 
 As these letters not only bear directly upon the value and 
 credibility of Dr. Cooper's testimony, but throw a flood of 
 light over three of the principal specifications, we will brief- 
 ly discuss the evidence by which their authenticity and the 
 fact of their reception by Cooper are established. That they 
 were pertinent and admissible as evidence the Court has in 
 accordance with settled law, already decided. 
 
 Now, if we establish that these letters vfere written by 
 the accused, and that they were received by Dr. Cooper at 
 the time of the endorsements upon them, we add to the con- 
 tradictions already indicated in the case of this witness and 
 destroy any possible vestige of doubt as to his utter unrelia- 
 bility, because the letter of the 17th June, demolishes his 
 sworn statement that he had written no letter to the Surgeon 
 General on the 16th of June, or any letter in connection 
 with the blanket transaction except those put on the record. 
 That he must have written to the accused on the 16th of 
 June about Stevens and the blankets, is clearly shewn by the 
 
24 
 
 • 
 
 whole tenor of the reply of the Surgeon General of the 17th. 
 It says, "I telegraphed you to-day immediately on receipt 
 ^'of your letter to do as you thought best about Steven's 
 "blankets. His offer to me was at $5, and I thought the 
 "sample worth the money. I mentioned the price merely 
 "that you should not pay more than that sum for them, — 
 "Are you sure that those he offers at |4.60, are the same 
 "that he asked me $5 for." 
 
 Now the only letter upon the record and sworn to by 
 Cooper as having been written by him to the Surgeon Gren- 
 eral on the subject of these blankets, is the infamous one of 
 the loth of June, in which his bitterness of feeling to the 
 accused finds vent in suggestions of the grossest insult to 
 his superior officer, and which letter was never sent to or 
 received by the accused, and which Cooper has sworn was 
 copied by him on the blue lined paper "in use in his office," 
 but which paper not one of his clerks, as they have proved, 
 ever saw there, or heard of being there, and which co})y he put 
 away in one of the pigeon holes of his locked desk, which 
 desk the same clerks prove was not kept locked but open to 
 their free access, and to the pigeon holes of which, one of 
 them, Captain Elliot had access and had frequently assorted 
 the papers in it for Cooper ; yet without ever seeing this copy, 
 or anything whatever written upon the same character of 
 paper. 
 
 This letter of Jimelo, said not 07ie loord about the price 
 of the hlankets, offered to him hy Stevens. 
 
 That being the only letter then that according to Cooper's 
 testimony he had written to the Surgeon General on this 
 subject, how was it 'possible for the accused to knoiu on the 
 17th that Stevens had offered the blankets to him, Cooper, at 
 $4. GO, a7Kl how could the accused have ivritten to Cooper on 
 the 11th, ''are you sure that those, he Stevens, offers at 
 $4.60 are the same he asked me $5 for f and how could he 
 have said further in the same letter, "whenever I send you 
 orders to make particular purchases, it is of course with the 
 full understanding on my part, that if you see any ob- 
 jections you will refer the matter back to me for instructions, 
 
 AS IN THIS CASE." 
 
 The very text of the letter shews conclusively that after 
 
25 
 
 Stevens had the interview with him ahout the blankets, and 
 for the Jirst time, Cooper learned anything about their price 
 being $4.60^ icldch icas on the morning of the l&h of June, 
 when as he swears himself and Stevens proves, $4.60 was 
 named to him as the price. Dr. Cooper did write to the 
 Surgeon General, naming the offer of Stevens and referring 
 the matter of the purchase to his superior for instructions. 
 
 Immediately upon the receipt of this letter by the Sur- 
 geon General, follow in natural sequence, the telegram of 
 the ITth June telling Cooper to do as he thought best about 
 the blankets, and later in the same day this letter, more 
 fully reiterating the substances of the despatch, and giving 
 the views of the accused upon the subject. This is the natu- 
 ral, logical and unavoidable conclusion. But beyond all 
 this, the testimony amounts to absolute proof, for we estab- 
 lish the letter of June 17th to be in the handwriting of the 
 Surgeon General by five witnesses, all conversant with it, 
 and we prove the endorsement of its receipt by Dr. Cooper 
 to be in his handwriting by the same number of competent 
 witnesses, who having been at the time the clerks in his of- 
 fice, and in daily and familiar contact with his handwritings 
 are the best witnesses that could have been produced on that 
 point ; and not resting there, we prove it to have been about 
 the time stated in the endorsement in the possession of Dr. 
 Cooper, by Captain Elliot who swears to that fact. 
 
 Against this overwhelming testimony, the prosecution in 
 faint rebuttal, puts on the stand three or four highly 
 respectable gentlemen, who have known Dr. Cooper at in- 
 tervals for several years past, have had occasional corres- 
 pondence with him, and who professing to be unable wholly 
 to decipher the endorsement, do not, with the exception of 
 Dr. Laub, express an opinion that it is not his writing, while 
 one of them. Dr. Murray, rather inclines to the belief that 
 it is, and even the expert who was called does not venture 
 to say it is not ; and then, "most lame and impotent con- 
 clusion," the Judge Advocate produces Dr. Cooper himself 
 to disprove the whole matter, and he denies that he put the 
 endorsement on the letter, but when sharply interrogated 
 by the prosecution as to whether "he ever saw the letter 
 while he was Purveyor in Philadelphia in June, 1862,'' he 
 
26 
 
 goes on to quote to the Court various passages in the letter 
 as '■^heing fa7niliar to Mm," with the extraordinary state- 
 ment that it is impossible for him to say whether he saw 
 them in that letter or elsewhere, "but they are familiar to 
 me !" They were familiar to him because tliey were in that 
 letter, and because when he received it on the 18th of June 
 and endorsed the fact of such receipt on its baclj;, he read 
 them in it, and it is sheer folly in the face of competent 
 proof in a grave issue like this, to deduce from what Dr. 
 Cooper says, anything but a reluctant confession of the fact 
 that he had received the letter in question, which on repeated 
 enquiry by the Judge Advocate he does not venture to deny. 
 Some of tliese rebutting witnesses found it difficult to read 
 the words of endorsement, because the pencilling had been 
 so much rubbed out, and in this connection we only think it 
 necessary to say that the clerks in Dr. Cooper's office at and 
 before the date of the endorsement, Marochetti, Nesbitt, 
 Hammond, Garigues, and Elliott, are all able to read it 
 sufficiently to pronounce positively that Cooper wrote it. 
 
 The letter of July 29, 18G2, is also conclusive in its refu- 
 tation of the testimony of Dr. Cooper. 
 
 He has sworn the Surgeon General was in Philadelphia 
 on the 29th of July. The letter shews that he was not. He 
 has sworn that the first and only notice he had of the re- 
 quisition of July 31st, was received through John Wyeth. 
 The letter embodies a previous notice. He swears that on 
 the 31st July he received instructions from the Surgeon Gen- 
 eral, to purchase from Wyeth & Bro. by far the largest part 
 of that supply for two hundred thousand men. The letter 
 shews that the accused desired that all articles should be 
 bought from dealers, and states that the system of buying 
 all from one person, which prevailed under the old regime, 
 v/as not the correct principle, thus positively contradicting 
 the alleged instructions Cooper swears he had given him to 
 buy everything from the Wyeths. 
 
 That this letter was written by the accused is also fully 
 established by the witnesses, who prove the letter of 17th 
 June, and that it was endorsed as received on the 30th of 
 July, by Dr. Cooper, is established by proof of his hand- 
 
27 
 
 writing on its back ; by Nesbitt, Hammond, Garigues, Mar- 
 ochetti, Elliot and Bower. 
 
 The fact of its receipt by Cooper is further established by 
 Nesbitt, to whom Cooper read it at the time of its receipt ; 
 and by Elliot, who saw it in his possession ; while Cooper 
 himself, on being pressed by the Judge Advocate, to say 
 whether or not he ever saw it while Purveyor at Philadel- 
 phia, does not venture, though denying the genuineness of 
 the endorsement, to swear that he had not so seen it, but as 
 in the case of the former letter of June 17th, gives his recol- 
 lections of a passage from it, which he says "is familiar to 
 him." The rebutting testimony on this point is equally in- 
 conclusive as in the previous case, from persons but slightly 
 familiar with his hand-writing, while an examination of the 
 testimony of the expert will shew the small value of his 
 judgment based on comparison. 
 
 This witness, it may be remarked, gave his opinion from a 
 recent comparison of the Avriting of Dr„ Cooper, with no 
 previous knowledge of its characteristics ; never having seen 
 him write, and never having corresponded with him. This 
 species of proof is held in very slight esteem by many settled 
 rulings, and its judicial value may be seen by reference 
 among others to the case of "Gurney vs. Langlands," 5 
 Barnwell vs. Adolphus 930 : where the Court upon argument 
 held that the opinion of Inspectors of franks for the Post- 
 ofUce, whether the loriting is in a ^^ natural or imitated charac- 
 ter," is of little weight, and refused a new trial, asked on 
 the ground of the rejection of such evidence. 
 
 The statement of Dr. Cooper as to his usually placing his 
 endorsements of receipt at the bottom of the folded paper, 
 may well enough apply to his public and purely official let- 
 ters, but as this was not an official one, does not affect the 
 positive testimony referred to. 
 
 With this commentary on the character of the evidence of 
 the witness Cooper, and the degree of credit to which he is 
 entitled, we proceed to examine the third specification of the 
 first charge and the evidence adduced in support of it. 
 
 The gravamen of that specification is that the accused 
 ordered and caused Cooper to buy the blankets from Stephens, 
 (known in the record as the purchase from Hess, Kessel & 
 
28 
 
 Co.,) he, the accused well knowing they were inferior in 
 qimlity, and that Cooper had refused to buy them. 
 
 The only witness in support of this allegation is Cooper 
 himself. Let us examine that testimony, not by the lights 
 thrown upon it from various points to exhibit its value, but 
 assumins: that he is a disinterested credible witness. 
 
 Cooper says the samples of these blankets had been left by 
 Stephens at W3^eth's, some days before the 28th of May, 
 1862 ; he had seen them and had declined to purchase them ; 
 that on the evening of 28th May, 1862, he saw the accused 
 at Wyeth's ; Wyeth asked him why he did not buy Steph- 
 ens blankets ; the accused turned to him and said, why don't 
 you buy them Dr. ? (p. 196.) I said they are an assorted lot, 
 and I don't luantto buy different qualities of blankets to put in 
 the hospitals." This is his direct, clear unembarrassed state- 
 ment ; not a word said about inferior qualities. But the 
 Judge Advocate follows it up by a direct leading question, 
 prompting the ready answer, did you say anything of the 
 quality? A. ''I said I was buying a different quality at a 
 comparatively cheaper price. ' ' Not satisfied with the answer 
 of his witness, the Judge Advocate presses him still further. 
 Q. Better or worse? A. ''Better." Now did he say this 
 to the accused? Did he say he was buying a better quality, 
 or a ^'different" quality? He says to the Judge Advocate, 
 "better." But he does not say he said so to the accused. 
 And this is made the more clear by what immediately follows 
 on the same page, (196.) Was anything said about his 
 having shown them to you before? A. "I stated that I 
 had refused to buy them because they "wei^e an assorted lot." 
 
 But to remove all doubt on this subject, we have but to 
 turn to the cross examination, p. 389, he says, "I did say 
 on that evening to the Surgeon General, that I did not like 
 the blankets, they were not the hind I luas purchasing, and 
 that they luere comparatively dear" and at the bottom of p. 
 390, 391, in reply to the question whether anything "was 
 said between the Surgeon General and yourself about the par- 
 ticular prices of the different qualities of the blankets ?" He 
 says "there was nothing said about that particularly, noth- 
 ing but the general remark that they were comparatively 
 dear;" and again, p. 392^ my objection "was to their not 
 
29 
 
 being of the kind I was using, and to their being compara- 
 tively dearer than what I coukl purchase." Now the gist 
 of the allegation is that the ^Surgeon General well knew ^'■iheij 
 were inferior in quality. ' ' The proof is he was told Cooper had 
 refused to buy because he was buying a different quality, at a 
 comparatively cheaper price^ and because they were an assort- 
 ed lot, they were not the kind he was purchasing, and were 
 comparatively dear," and this repeated again and again. The 
 proof comes far short of the specification. They may have 
 been blankets of an excellent quality ; the price may have 
 been a perfectly fair price, every word of the witness 
 may be literally true, and the specification not proved. 
 Cooper says he was buying ^'■better" blankets, but he does 
 not say he so told the accused, he only told him he was buy- 
 ing a different kind at a comparatively less price. Nor does 
 Cooper anywhere say the blankets were in fact '•'■inferior'^ 
 in quality, but the extent is he could get those he liked bet- 
 ter at a comparatively less price. 
 
 This however is all on the assumption that he has cor- 
 rectly reported his interview with the accused, and the direc- 
 tion he received from him. No one is here to contradict 
 him. But there are strong circumstances in evidence tend- 
 ing to discredit the narative he has given. 
 
 The plain import of his testimony is that Stephens had 
 left his sample blankets at Wyeth's and had rather impor- 
 tuned him to buy them ; that Stephens was a friend of the 
 accused, and had supported or advocated in his paper " Vani- 
 ty Fair," the pretensions of the accused to his present office ; 
 that the accused being in the office at Wyeth's in the even- 
 ing, Cooper passing through the store to see him, saw Stephens 
 standing there, and passing him by entered the office and 
 remarked that he saw the Vanity Fair man down stairs, I 
 said he was the sub-Editor of Vanity Fair, and immediately 
 John Wyethj who was present, asked, '' why don't you buy 
 his blankets, Cooper?" and the accused said '^■why don't 
 you buy them, Doctor?" After some remarks further, 
 the accused said, " it is policy to keep the press on our side," 
 and after some further talk, said " buy them ; " the next day 
 Cooper saw Stephens at his office, and told him " I had been 
 directed to purchase the blankets from him." The evident 
 
30 
 
 intention of this ingeniously contrived story, is to create a 
 belief that when Cooper came into the room, John Wyeth 
 had heen posting the accused about Stephens blankets, and 
 the accused was ready and willing to oblige his supporter 
 at the expense of the public interest. 
 
 The testimony of Stephens, unhappily for this pretty 
 device, testimony which has no contradiction in any part of 
 it, except by Cooper ; coming from a man whose social posi- 
 tion is well developed, and whose evidence will stand the 
 severest scrutiny — the testimony of Stephens is destructive of 
 some of its best points. 
 
 Mr. Stephens says he had only seen Cooper once before, and 
 was introduced to him by John Wyeth ; that he exhibited 
 the samples of blankets to him, and Cooper did not refuse to 
 buy them, but objected to them as an assorted lot ; that he 
 never objected to the quality or the price. On the evening 
 in question. Cooper asked him to come to his office in the 
 morning ; that he had gone to Wyeth's that evening for 
 medicine, and only saw Cooper as he was passing through 
 the shop. The next morning he called at Cooper's office^ 
 and on his entering, Cooper closed the door, asked him to 
 take a cigar and seat, and proposed to put his business 
 through quick ; that he did not say he had been directed to 
 purchase the blankets, or anything of the kind, and the 
 business was closed at once. Stephens says he had never 
 seen the accused but once up to that time, nor did he see 
 him again until long after that time ; his interview was a 
 brief one, and he had never written a line in the paper Van- 
 ity Fair, or any other, in support of the accused, and he did 
 not know the accused was at Wyeth's when he went there, 
 nor did he then see him. 
 
 liere, then, are direct, irreconcileable, contradictions be- 
 tween these two witnesses as to material facts, coloring the 
 whole transaction, both of which cannot stand, and the re- 
 cord is full of conclusive evidence to show which is Avorthy 
 of credit. 
 
 The gravamen of the 4th Specification is, that on June 14, 
 1862'3 the accused unlawfully and with intent to aid Stei>hens 
 to defraud the Government of the United States, instructed 
 Dr. Cooper, Purveyor at Philadelphia, to purchase from said 
 
31 
 
 Stephens 8,000 pairs of Llankets at $5 a pair^ wliicli blankets 
 were unfit for hospital use ; and the 5t]i kSpecification charf»-es 
 that the accused did on the 16th of June, 1862, corruptly 
 and with intent to aid Stepliens to defraud the Government, 
 order in writing said Stephens to turn over to said Cooper, 
 8,000 pairs of blankets, by which means he induced Cooper 
 on Government account, and at an exorbitant price, to re- 
 ceive 7,677 pairs of said blankets, which he had before re- 
 fused to buy, and for which Stephens received $35,314.20. 
 
 The allegation of an intent to defraud, in the 4th Speci- 
 fication, is based entirely upon the charge that the blankets 
 thus ordered to be purchased, were unfit for hospital use ; and 
 it is therefore only necessary to shew that the};- loere fit for 
 hospital use, and the specification is fully disproved. It is 
 easy to do this, for the respective Surgeons to whom they 
 were exhibited in the presence of the Court, testified to their 
 fitness for such use, and Dr. Cooper alone denies it. We will 
 not, however, stop with this answer to the specification, but 
 proceed to consider it in connection with the 5th, the essence 
 of which is, the alleged fraudulent intent and the positive 
 order to Cooper to receive the blankets, without anv discre- 
 tion on his part. 
 
 Let us then discuss the specifications together, for they 
 are not separable in the argument, the order to Cooper in 
 the 4th being part of the transaction, of which the order to 
 Stephens set out in substance in the 5th is but a sequence 
 and the necessary result of the order to Cooper. 
 
 To build up these specifications, the prosecution exhausted 
 much time, devoted great labor, and manifested a skill, per- 
 sistency, and ingenuity worthy of a better cause. It has all 
 been thrown away. 
 
 The proof triumphantly vindicates the Surgeon General 
 from the imputations thus cast upon his honor, in protection 
 of which against these aspersions, let it be remembered he 
 threw open the door to the fullest enquiry, letting in, with- 
 out objection, much irrelevant testim.ony, and relyino- with 
 unshaken confidence upon the integrity of his motives and 
 conduct, which he knev/ any truthful testimony must vin- 
 dicate. 
 
 The substance of the facts given in evidence by the prose- 
 
32 
 
 ciition in connexion with these two charges, mnj be con- 
 densed as follows ; it being the purpose of the accused to set 
 them out with entire fairness, and so far as he can, within 
 the time limited for his defence, in extenso. 
 
 The case then supposed to be made is : that about the 1st 
 or 2d June^ 1862, Dr. Cooper, the Medical Purveyor at Phila- 
 delphia, received from Mr. Stephens samples of white Union 
 Macldnaw blankets, as they are called, 8 pound to the pair, 
 the price of which Avas stated to be $5 per pair ; that on or 
 about the 2d June, 1862, he exhibited this sample to Mr. 
 Paton, an importer of blankets in New York, and Mr. Paton 
 says he could have duplicated them for from $3.25 to $3.50 
 per pair, and he thinks they corresponded with the samples 
 which have been exhibited in Court, and which are part of 
 tbe lot of 8,000 pairs delivered by Stephens under the order 
 of the accused, set out in the oth Specification ; that these 
 sample blankets remained in Cooper's office in Philadelphia 
 until the 13th day of June, when they were taken away by 
 Stephens, and then and up to that time Cooper had refused 
 to buy the blankets ; that in the meanwhile Stephens had 
 written a letter to the accused offering to sell him 8,000 
 pairs of such blankets at $5 per pair. That Stephens, hav- 
 ing taken his samples from Cooper's on the 13th June, 
 transmitted them to the accused by express, and they were 
 received by him on Saturday the 14th June ; that Stephens, 
 on the same day he despatched the samples, wrote a letter to 
 the accused, to wit., the 13tli June, in which he informed 
 him he had sent the samples by express, and the blankets 
 which he had in his former letter put at $5 per pair, could 
 now be sold at $4.60, if he took the whole lot of eight thou- 
 sand pairs ; that on Saturday, the 14th June, the accused, 
 after the receipt of the samples, wrote the two letters or or- 
 ders set out in the 4th and 5th Specifications to -Cooper and 
 to Stephens respectively ; the one to Stephens being ad- 
 dressed to hira at his residence in Girard street, Philadel- 
 phia, although in the letter to Cooper, he had given Cooper, 
 Stephens' address to his box in the post-office, New York ; 
 that Cooper received the letter of the 14th on Sunday, the 
 15th June, and immediately Avrote to the accused a letter, of 
 
33 
 
 which a copy is put in the record ; on the morning of the 
 16th June, Stephens called upon Cooper at his office, showed 
 him the letter of the accused, and told him the price of his 
 blankets was $4.60 per pair ; Cooper agreed to receive them 
 under the order of the accused, given to him, of the 14th 
 June ; they were received by him, on or after the 2l8t June ; 
 the bills were certified by him to the Surgeon General's of- 
 fice, and paid without his knowledge ; that he never received 
 from the accused any reply to his letter of the 15th, un- 
 less the telegram of the ITth June, telling him to do as 
 he pleased about the blankets, was a reply, and that came 
 after the transaction was closed ; and that all the letters, to 
 wit : Stephens' first letter to the accused ; his second letter 
 of the loth June ; the letters of the accused to Cooper and 
 Stephens of the 14th June, and Cooper's said letter of the 
 15th June, are not to be found among the files or records of 
 the Surgeon General's office. 
 
 This unquestionably creates a strong suspicion as to the 
 whole transaction. The case made by the accused is not de- 
 pendent wholly on the fading or treacherous memory of wit- 
 nesses, but resting on contemporaneous writings, forming 
 links in the chain of the transaction, and explaining much 
 that is otherwise mysterious, sustained and welded together 
 into a complete chain by the oral testimony of living actors in 
 that business, leaves no room to doubt that so far as the ac- 
 cused is concerned he is free from a shade upon the perfect 
 integrity of his connexion' with the matter. 
 
 The answer is : — 
 
 It is proved by the letter written by Stephens to Cooper, 
 and produced in evidence by the prosecution, that the sample 
 blankets received by Cooper on the 1st or 2d June, 1862, 
 were sent by Hayes, and not by Stephens. They were not 
 samples of the lot of 8,000 pairs subsequently sold by 
 Stephens on the 16th June. It follows that Mr. Paton did 
 not see a sample of this last lot. Stejihens swears he him- 
 self never saw the samples so sent by Hayes. 
 
 It is proved by Vail, Spaulding, Andrews, Hayes and 
 Townsend, that the samples of the blankets so sold on the 
 16th June, were not delivered to either of the brokers until 
 3 
 
34 
 
 four or five days before the sale was completed. It is proved 
 by Stephens that he wrote to the accused his first letter before 
 he saw the sample, and he received the sample on the 12th 
 June, that he transmitted that sample by express on the 
 same day from New York to Philadelphia, and the next 
 morning, the 13th June, took it from the express office him- 
 self, and carried and exhibited it to Cooper^ and then failing 
 in making a sale to him, despatched it by express the same 
 day to the accused at Washington : that on the evening of 
 the same day he wrote the letter of the 13tli June, and put 
 it into the lamp post-office after the hour of delivery, so that 
 it could not have reached Washington before Sunday, the 
 15th June. , 
 
 It is needless to enquire how it is, wherefore, when, by 
 whom those original letters were taken from the office of the 
 Surgeon General. We do not know. That the office was 
 tampered witli by some one is shown by Dr. Smith's evi- 
 dence and by the fact that letters were taken from it. Two 
 of these letters are before the Court, one produced by the 
 Judge Advocate from the papers of Surgeon Laub, the other 
 produced by the accused, and coming to his possession as 
 mysteriously as that did to Surgeon Laub. The authen- 
 ticity of the papers is beyond dispute. We will presently 
 see this is not all of the proofs. It is charged, and the at- 
 tempt has been made to show that these blankets were unfit 
 for use in hospitals ; had a foul and oifensive odor, and were 
 purchased at an exorbitant price. 
 
 The proof on these points is equally decisive. As to their 
 unfitness for hospital use in their present condition, a suffi- 
 cient and complete answer has been already given. But Dr. 
 Cooper and Mr. Guillou, to whom he says he exhibited them, 
 say the odor was very oflPensive when they were received. 
 To this we reply, Dr. Cooper is the only witness to show 
 they were the same blankets as those of which Mr. Guillou 
 has testified : the clerks in Dr. Cooper's office, those who re- 
 ceived them when they were first delivered, and those who 
 delivered them when they were disbursed ; who marked each 
 bale so disbursed, who were daily conversant with them 
 while they remained in the purveyor's office; to wit : Mr. 
 
35 
 
 Garrigues, Elliot, and Nicliols ; Mr. Spaulding, who sold 
 them, and Mr. Townsend, the broker, who purchased them, 
 and Stephens, who searched for the four missing bales in the 
 office of the purveyor, all concur in an emphatic denial of 
 such offensive odor. It cannot be true that they had such, 
 odor. 
 
 The price has been assailed. The answer is a mass of 
 overwhelming proof to show that such blankets were exceed- 
 ingly scarce in the market ; that there was not more than 
 one other lot like them, and that was at Watson's ; the lot 
 afterwards purchased by Townsend ; that the price at cash 
 sales were rapidly rising in the market, and we have the con- 
 current testimony of Carville, Vail, Spaulding, Toy, and the 
 several brokers who were familiar with the transaction, that 
 the sale to the Government at $4.60 per pair at that time, 
 upon the terms in which it, the Government, was in the 
 market was a fair sale. The weight is shown to have been 
 what is purported to be — eight pounds to the pair. 
 
 Moreover, it is in evidence that Medical Director King had 
 received instructions to prepare largely extended hospital ac- 
 commodations in Philadelphia, for the sick and wounded from 
 the inhospitable and bloody fields of the Peninsula, that Cooi> 
 er's supply of blankets was short, and the demand communi- 
 cated to him by Dr. King was pressing. There was no time for 
 the accused to wait. His duty and his humanity called up- 
 on him for prompt and energetic action. He received an 
 ofi'er of 8,000 hospital blankets in a rising market at $5 per 
 pair ; he knew the urgent need of the service — he has sworn 
 lie never received, and he now solemnly avers he never re- 
 ceived that letter of the 13th June ; he acted at once, yet al- 
 ways as he said to Cooper in his letter presently to be 
 noticed, subject to the considerate action of the purveyor, he 
 ordered the blankets, and has not for a moment regretted it 
 to this day, but justifies and vindicates that order. 
 
 A labored effort has been made by the prosecution in con- 
 nexion with these two charges to show that Stephens realized 
 a large profit from the sale of this lot of 8,000 pairs of 
 blankets. The only purpose such a fact could serve, would 
 be to show the price was exorbitant. This Court has no 
 right to sift the transaction for any other purpose, and that 
 
36 
 
 only so far as it may tend to sIioav the Government was de- 
 frauded. Nor can it be of any service to the prosecution, if 
 the evidence stops here. For whatever profits Stephens may 
 have realized ; however exorbitant the price may have been ; 
 however fraudulent the scheme by which such exorbitant 
 price was realized, unless they go further, and show the ac- 
 cused so associated in it that they can say these orders were 
 given for the purpose — with the intent to enable Stephens to 
 })erpetrate this fraud — they cannot impeach the accused, or 
 find him guilty of these specifications. And he challenges 
 an enquiry to that point, into any fact which shows com- 
 plicity by him with any of the parties concerned in that sale. 
 He has endeavored, with the aid of counsel, to discover any 
 fact not fully and completely explained which so connects 
 him with Mr. Stephens as to show any guilty knowledge 
 on his part of irregularity on the part of Stephens, or 
 anything but a fair business transaction. Indeed, there is 
 nothing to show that he knew until long afterwards, that 
 the sale had been completed. 
 
 To make this matter more clear, it is proved by Mr. 
 Stephens, and by the letter of the accused to Cooper of the 
 17th June, that he had no personal acquaintance with Ste- 
 phens beyond a brief interview with him in the winter of 
 1861-2 ; that Mr. Stephens was backed by Dr. Hartshorne, 
 of Philadelphia, a man of known high repute, who was, in 
 the language of the accused in that letter, responsible for 
 him, and notwithstanding that, he in terms authorized 
 Cooper not to take the blankets if he did not like them. So 
 far his personal connection with the matter. 
 
 But in point of fact, the testimony of tlie New York mer- 
 chants and brokers, and of Adolph and Toy, of Philadel- 
 phia, take away from the sale every taint of exorbitant price 
 or fraudulent design. The transaction itself shows that 
 Stephens bought at |4 cash, when the importers would 
 not have sold to Government on credit ; that he had to pay 
 two and a half per cent, for his money, an additional one 
 per cent, for the delay, and also the costs of transportation ; 
 to lose the value of the wrappers, and take two-thirds of his 
 payment in certificates of indebtedness at a discount. The 
 rates at that time ranged from 96 to 98, so that he realized 
 
3Y 
 
 on this purchase rather less than ten per cent, , and had to 
 take the risk of waiting months for his pay. The result of 
 the operation shows no exorbitant price ; while tliere is no- 
 thing from which it can rationally be inferred, that the ac- 
 cused was actuated by any wrong motive in giving the 
 order which he did. 
 
 The remaining point of this 5th Specification is, that in 
 consequence of the order to Stevens from the Surgeon Gen- 
 eral, to turn over the blankets to Cooper, he Cooper was 
 compelled to receive them, though they were at an exhorbi- 
 tant price, and he had previously refused to buy them, thus 
 depriving him of that discretionary power which as Medical 
 Purveyor it is charged he was entitled to exercise. Now was 
 Cooper so robbed of discretion in the premises, or was he in a 
 position to receive or reject the blankets in question, as he 
 thought fit? Unquestionably the latter is proved to have 
 been the case. We will demonstrate it. The proof is that 
 on the morning of June 16th, Stevens presented to him the 
 order, or memorandum from the Surgeon General directing 
 the blankets to be turned over. In this both Cooper and 
 Stevens concur. The transaction began on the 14th June, 
 with the communication from the Surgeon General of that 
 date. It was a continuing transaction on the 16th, when 
 the conversation between Cooper and Stevens occurred. 
 
 Stephens swears he had no such order as Cooper has de- 
 scribed ; the letter of the accused of June 17th also shows 
 it, and it is not true that the interview closed the transac- 
 tion. Dr. Cooper knew that it did not, for he has sworn 
 that if the blankets had not corresponded loith the samples^ 
 he would not have received them, and he knew just as 
 well as do the members of this Court, that up to the point 
 of actual inspection and receipt, he not only had the right 
 the Government invariably reserves to itself to reject an 
 inferior article or one that does not come up to sample, but 
 it was his duty to do so, and it is in proof by Cooper him- 
 self, that the delivery was not until the 21st of June, thus 
 giving him five days from the interview with Stevens and 
 the delivery of the goods for action as to their receipt or 
 rejection. Five days pregnant with information and instruc- 
 tion to Dr. Cooper, for as we have already clearly shewn, he 
 
38 
 
 wrote to tlie Surgeon General on the 16tli, after Stevens Iiad 
 told him the price was $4.60, and referred the matter to his 
 superior, as the reply of the accused of the lYth clearly 
 shows ; and then on the morning of the next day, the iTth, 
 he got a telegram from the Surgeon Gfeneral telling him ^'to 
 do as he thought best about the blankets," which clothed him 
 with absolute discretion to reject them, even if he had 
 been previously directed to purchase or receive them, and 
 this was followed by the explicit letter from the accused of 
 the ITth, also, which he received on the 18th, in which the 
 Surgeon General asks him if he is sure the blankets offered 
 at $4.60 are the same as those offered the writer at $5 — tells 
 him that ivhenever oi^ders are sent him to make particular pur- 
 chases it is of course luith the full understanding that if he 
 sees any objections to the purchase he is to refer the matter 
 bach to the Surgeon General for further instructions as he had 
 done in this case ; that the Surgeon General did not know 
 much about Stevens, having never seen him but once in his 
 life — and closes with this absolutely conclusive passage, ''if 
 YOU don't avant his blankets, don't buy them at any 
 
 PRICE ! ' ' 
 
 In the face of such proof as this it is worse than idle for 
 Dr. Cooper to talk about the Surgeon General having taken 
 the matter out of his hands, and the fact that he had com- 
 plete discretionary power in the premises is entirely too 
 plain to require further discussion. 
 
 The next specification in order is the 6th, the points of 
 which are, that on the 31st July, 1862, the accused know- 
 ing that the Wyeths had before that time furnished the 
 Medical Purveyor at Philadelphia supplies inferior in quali- 
 ty, deficient in quantity, and of excessive price ; did cor- 
 ruptly, unlawfully, and with intent to aid said Wj^eth & 
 Bro. to furnish further supplies, and fraudulently realize 
 large gains therefrom, give Dr. Cooper, the Purveyor, an 
 order to fill up his store houses so as to have constantly on 
 hand, hospital supplies for 200,000 men for six months, and 
 then and there directed said Cooper to purchase a large 
 amount thereof to the value of $1*73,000, from said Wyeth 
 & Bro. 
 
 As to the guilty knowledge of the accused involved in 
 
39 
 
 this specification, Doctor Cooper is the sole witness, except 
 so far as Keffer may be considered auxiliary to the extent of 
 his testimony as to the single Lottie of alcohol opened in 
 his presence, when in the true spirit of a hawker he was 
 trying to vend his own wares, and as to the luminous chem- 
 ical suggestions he throws out upon the nature of fusel oil, 
 and the tests by which its presence is distinguished, gathered 
 from his workmen in the back shop. 
 
 Having sufficiently examined the value of any testimony 
 given by Dr. Cooper, we content ourselves with calling the 
 attention of the Court on this point to the letter to him from 
 the Surgeon General of date July 29th, which he is shewn to 
 have had in his possession at the time specified in the allega- 
 tion, and the contents of which are in direct accordance with 
 the suggestions Cooper says he made at that time to the 
 Surgeon General, and equally in conflict with the oral in- 
 structions he says he then received from him. On the other 
 hand Cooper admits that although previous to the personal 
 interview with the Surgeon General of July 31, he had 
 knowledge of these alleged deficiencies as to the quantity and 
 character of those supplies, and their excessive price, he had 
 never made to the Surgeon General any communication on 
 the subject, oral or written^ and although the Regulations 
 require the Hospital Surgeons to make reports to the Pur- 
 veyors of any such deficiency, he himself had not re- 
 ceived a single official complaint from them, except from 
 the Chester Hospital in regard to some of the liquors. It 
 is not to be credited that at that interview he communicated 
 to the Surgeon General the fact and extent of such deficien- 
 cies as he has stated, nor does Kefier sustain his statement, 
 his testimony being confined to the bottle of alcohol opened 
 in his presence, the short measure of which is clearly ex- 
 plained by the testimony of Mr. Harrison Smith, Dr. A. K. 
 Smith, Mr. Frank Wyeth, and Hughes, who bottled the al- 
 cohol. 
 
 We are however not obliged to rest here ; for the prompt 
 action of the Surgeon General in sending first. Inspector 
 General Perly to investigate the afiairs of the Medical Pur- 
 veyor's office at Philadelphia, and subsequently Surgeon 
 Coolidge, to examine into the character of the medical sup- 
 
40 
 
 plies in the Hospitals and Purveyor's office at that pointy 
 the moment complaints were made to him, is a pregnant 
 circumstance to show that such information was not com- 
 municated to him by Cooper at the time charged in the Spe- 
 cification. 
 
 We say next that in point of fact, the defects in quality or 
 deficiency in quantity of any of the supplies furnished by 
 Wyeth & Bros., so alleged, are shewn by the proof to have 
 been nothing beyond the isolated accidents inseparable from 
 the execution of such large orders, which involved in their 
 putting up great labor and minute details, under the pres- 
 sure of circumstances demanding the utmost despatch in their 
 preparation and delivery. 
 
 As to the character and quality of the drugs, medicines, 
 and medical supplies furnished by this house, the concurrent 
 testimony of every Surgeon who has been examined, viz : 
 Dr. J. H. Thompson, who used them in the Burnside Expe- 
 dition, when the purchase of them was directed by Surgeon 
 General Finlay — Surgeons Magruder, J. J. Hayes, A. K. 
 Smith, L. A. Edwards, R. 0. Abbott, L. Baldwin, J. B. 
 Rowe, E. P. Vollura, John M. Cuyler, Wm. Thompson, R. 
 H. Coolidge, J. Hopkinson, J. Letterman, and Drs. Mur- 
 ray and Cox, Medical Purveyors, Mr, Farr, of the house of 
 Powers & Weightman, who i'urnished them by far the 
 largest part of their medicines, and who also put them up 
 according to the supply table, Mr. Locke, who made the 
 alcohol they supplied, and the high reputation of which is 
 established by the standard authority of Wood & Bache's 
 Dispensatory — and Mr. Harrison Smith, who purchased their 
 liquors, teas and bottles, establishes the high character of 
 the supplies they furnished. 
 
 Add to this, the admitted fact, that prior to the 31st July, 
 no official complaint was made to the Surgeon General, of 
 the quality or character of their medicines or the manner in 
 which they were j)ut up, it cannot be doubted that the 
 Messrs. Wyeths dealt in entire good faith v>^ith the Govern- 
 ment ; while the isolated cases in which defective articles 
 were found in the large requisitions they furnished, are 
 shewn to have been met by them the moment their attention 
 
41 
 
 was called to the matter, by a prompt replacement witli un- 
 exceptionable articles. 
 
 It may be as well at this point to dismiss with very brief 
 comment, the matter of the whiskey ordered by Surgeon 
 Vollum, which Dr. Cooper had put into tin cans through a 
 misapprehension of the order of Dr. Vollum, although with 
 the whole transaction the Surgeon General had nothing to 
 do ; although many days of valuable time were wasted by 
 the forced and wearying presentation of the subject to the 
 Court. 
 
 To this branch of idle enquiry the accused interposed an 
 objection, but at once withdrew it on the assurance of the 
 Judge Advocate that he was to be connected with the enquiry 
 by subsequent proof, which pledge was never verified ; the 
 accused being in fact wholly unconnected with the matter, 
 as seemed sufficiently clear at the time, his utter ignorance 
 on the subject continuing down to November, six months 
 after the transaction, when his attention being called to the 
 condition of some of the whiskey that had found its way in- 
 to some of the hospitals at Washington, he ordered it to be 
 an^ysed and withdrawn from use, except for external appli- 
 cation. The Court cannot have forgotten with what gusto 
 the Judge Advocate presented to his witnesses the unpleasant 
 looking mixture he had extracted from one of these cans, 
 ferreted out from the recesses of a hospital, carefull}^ sealed 
 up, and guarded in its transit thence to the cupboard of the 
 Reeder Commission — where it was stowed away with the 
 odds and ends of that Board of Investigation, and the hat- 
 boxes of the witness Brastow, until it came to be submitted 
 to the critical analysis of Professor Breed, who in his episod- 
 ical attention to other pursuits for several years, seemed to 
 have forgotten his Chemistry. 
 
 Let the Court, if it really deems it necessary, contrast 
 with all the fanciful hypotheses and violent strainings, after 
 undiscernable poisons in this whiskey, the complete exhaus- 
 tion of the whole story of its condition when it was shown to 
 the Court, developed in the masterly analysis of Doctor 
 Woodward and Professor Schaeffer, each word of whose tes- 
 timony demonstrated their right to be considered Chemists, 
 
42 
 
 and that they had fully and patiently evolved from the tur- 
 bid liquid the evidence of its original soundness, good quality 
 and perfect freedom from adulteration, and the proof of 
 that chemical action which beginning with the Tannic acid 
 imparted to the whiskey by tlie wood of the barrels in which 
 it was originally put, resulted in the destruction, to a great 
 extent, of the Fusel Oil in it as in all whiskies, and left it 
 as a necessary result of the oxidation that ensued, in the 
 peculiar condition in which tlie Court enjoyed the privilege 
 of seeing it. 
 
 So far the defence has been limited to the evidence of the 
 order having been given by the accused to purchase the 
 alleged large amount from, the Wyeths, his knowledge of 
 the defects complained of, and the fact whether such com- 
 plaints were founded in fact, if any such were made. 
 
 But there is another point founded on this allegation which 
 he feels bound to notice before leaving it, and that is the 
 amount of that requisition. 
 
 In asking the attention of the Court to that matter he 
 takes the liberty to refer to a public document, part of the 
 history of the country, to show that such large orders#for 
 supplies were not made in the dark, nor from any corrupt 
 motive, but as part of his immediate duty, looking to the 
 end of having supplies secured before the price of every 
 article should have been increased by the necessary course 
 of events, and that he might have them ready for every 
 emergency. 
 
 In his report to the Secretary of war, date lOtli November, 
 1862, published among the documents transmitted to Con- 
 gress, at page 9, he says : " large depots of medical supplies 
 have been established at New York, Philadelphia, Balti- 
 more, Fortress Monroe, Washington, Cincinnati, Cairo, 
 St. Louis, and Nashville, and have proved of incalculable 
 advantage to the sick and wounded. Moj-eover, large sums 
 have been saved by the accumulation of stores before the 
 recent advance in prices took place." 
 
 It is in evidence in this cause, in repeated instances, unde- 
 signedly stated by Dr. Cooper, and confirmed by other wit- 
 nesses, and it is obvious to reason that such large depots 
 
43 
 
 were absolutely necessary. It requires but a glance at the 
 supply table for three months for a hundred men — still more 
 to cast your eye on the very requisition in controversy, and 
 see the vast amount called for by it, and the manner in 
 which those supplies were required to be put up, in small 
 phials, in safe packages, to satisfy any one, that it would 
 require a long time and great care and labor to prepare even 
 for a thousand men. In this city alone and its surroundings 
 there were in the months of July and August, 1862, nearly 
 20,000 men in hospital : the struggle between Lee and Pope 
 was going on, and it would have been such gross neglect of 
 duty as would have justly subjected the accused to the cen- 
 sure of his superiors and the public if he had failed to make 
 ample provision for impending events. But this is only a 
 limited view of the matter. The West and South and South- 
 West, all were alive with the evidences of coming conflicts, 
 and they also vs^ere to be provided for. Every article in the 
 supply table was rising daily in the market, and on all ac- 
 counts it was his duty to exercise a wise forecast in making 
 ample provision, so that no one should suffer by his neglect 
 and the treasury would be relieved by his nrudence. 
 
 Here again we have a motive tending fully to explain the 
 amount of that requisition, a motive which his judgment, 
 his humanity and his patriotism could not overlook. 
 
 If from his past experience and information as to the char- 
 acter, quality and quantity of the drugs, medicines and hos- 
 pital supplies furnished by the Wyeths ; the promptitude, 
 skill, energy and despatch with which they had theretofore 
 furnished them ; looking to the threatening aspect of the 
 armies in the field, and knowing the condition of the hos- 
 pitals ; anxious to be provided in time for every contingent 
 event, and that the supplies should be on hand to meet every 
 hurried demand, he had given directions to have the larger 
 portion of that order filled by them, there would have been 
 no just or reasonable ground of complaint in a military 
 point of view, nor room for suspicions as to his integrity, 
 much less would it afibrd a scintilla of proof of a corrupt 
 motive. When the pressure of circumstances so momentous 
 as those surrounding him furnishes a reason for his conduct, 
 
44 
 
 it would be not only unjust but cruel to impute to him a bad 
 or dishonest motive. If we can see in this order any other 
 than a desire to benefit the Wyeths ; if we can see a high 
 sense of duty and responsibility underlying the whole trans- 
 action ; if we can see the wounded and the dying on the 
 battle-field, and the sick and wasted in the hospitals stretch- 
 ing forth their hands and crying for help, and the officer 
 charged with the duty has made ample provision for them 
 in anticipation of their needs, we should not stop to criticise 
 too severely and ask whether in furnishing those supplies 
 he did not mean to help a friend. The burthen of proof is 
 upon him who alleges such a bad motive, and he must put 
 it beyond a peradventure. There must be no room to doubt. 
 The act must be so characterized as to leave no question as to 
 the motive being wrong. If it were not so, God help every 
 officer who does not carry with him a glass in his bosom 
 by which his motives are to be seen, for by his acts he is 
 not to be judged. 
 
 It is denied distinctly, emphatically, positively, in the de- 
 tail and in the aggregate, by the accused, that any base or 
 sordid motive, any desire to favor a friend at the expense of 
 his duty entered into or formed any part of this order for 
 the supplies ; it is denied with equal directness and distinct- 
 ness, that he gave any direction to have any particular part 
 of it supplied by the Wyeths ; it is denied that he received 
 from Dr. Cooper the information which he says he then gave 
 as ±0 the failure of the Wyeths in their former transactions 
 either in the quality, weight, or quantity of their supplies ; 
 and at the same time he maintains that if be bad .received 
 such information from Cooper, not vouched for by any 
 report from any officer having charge of those drugs, medi- 
 cines and supplies, and relying upon his own personal know- 
 ledge and the information of others as to the manner in 
 which they had theretofore filled their contracts, he would 
 have been fully justified in giving the order, aad the proofs 
 in this cause already given would have sustained him in so 
 doing. 
 
 The 1th. specification of this first charge gives rise to the 
 question as to the true construction of the Act of the 16th 
 
45 
 
 April, 1862, as well as that of the motives of the accused 
 in himself ordering extract of beef from the AVyeths. It is 
 that contrary to the provisions of that act he did corruptly 
 and unlawfully direct Wyeth & Brother to send 40,000 cans 
 of their extract of beef to the d ifferent places named in the 
 order, and send the account to the Surgeon General for pay- 
 ment ; and which extract of beef so ordered loas of inferior 
 quality, unfit for liospital use, unsuitable, and univliolesome for 
 the sick and wounded in the Jiospitals^ and not demanded by 
 the exigencies of the public service. 
 
 The specification is skillfully drawn. It exhibits the in- 
 genuity of the special pleader. Yet if it were subjected to 
 the crucible of the courts administering the common law, it 
 is fatally defective, and on demurrer would be pronounced 
 bad. It includes a number of distinct offences. So much 
 so that it defies the ingenuity of the accused to determine 
 what specific allegation he is to meet. Is it that every 
 purchase made by him since the enactment of the law is 
 wrongful and unlawful ? Is it that to make it unlawful and 
 wrongful it must be corruptly made? Is it, in the particular 
 case, that the article purchased was inferior in quality ? or 
 that it was unfit for hospital use ? or that it was unsuitable 
 and unwholesome for the sick and wounded in hospitals ? If 
 it shall appear from the law that he had the power to pur- 
 chase ; that the article was sound, wholesome, admirably 
 adapted to the battle-field, to sudden emergencies, to a thou- 
 sand cases, but not suited for hospital use, can the specifica- 
 tion be maintained? or must all the averments of the speci- 
 fication be proved ? or is proof of any one or more of them 
 sufficient to sustain a conviction ? 
 
 In some circumstances these would all be material ques- 
 tions for the consideration of the Court, and the accused 
 might confidently, as he does, insist that every fact thus 
 severally and specifically alleged, not by way of aggrava- 
 tion, but as constituting parts and parcels — necessary in- 
 gredients in the offence intended to be assigned must be 
 'proved to the satisfaction of the Court ; that they in combi- 
 nation constitute the offence charged, and cannot be found 
 in part in order to sustain the specification. 
 
46 
 
 Not waiving any one of these points of objection, but re- 
 lying on them, the accused, as he has done throughout this 
 case, meets the accusation in each and every of its particu- 
 lars, satisfied that the more rigidly his administration of 
 his office, and all his acts connected therewith are examined 
 and criticised, the more triumphant will be his acquittal of 
 any charge or allegation affecting his honor as a man, or 
 his duty as an officer. 
 
 The fact that he gave the order set out in the specifica- 
 tion is not disputed. It was done, as all his other acts were 
 done, in the conscientious discharge of the duties imposed 
 on him by law. His construction of that law has been 
 given in part ; but that construction does not fully cover the 
 case now put. 
 
 The assumption on the part of the prosecution is, that he 
 is thereby prohibited from making any purchase ; that all 
 selections and purchases are to be made by the Purveyors ; 
 and every purchase made by the Surgeon G-eneral is wrong- 
 ful and unlawful. 
 
 It is a grave question. It deserves to be considered with 
 all the care which its importance in this particular case re- 
 quires ; but still more in its bearings on analogous cases in 
 other branches of the service. 
 
 The statute does not say, in terms, all purchases shall be 
 made by the Medical Purveyors. The words are: "The 
 Medical Purveyors shall he charged, under the direction of 
 the Surgeon General, with the selection and purchase/' &c. 
 They are to be charged. The laio does not charge them. 
 The law does not say they are ^'■hereby charged,," but shall 
 be charged. By whom are they to be charged? They are 
 to be charged under the direction of the Surgeon General. 
 The words of the statute do not in terms prohibit a pur- 
 chase by him who, as the head of the office, is to direct 
 another. Nor do they, by necessary implication, exclude 
 the Surgeon General himself from purchasing. They do 
 exclude the Purvej'^or from purchasing of his own voli- 
 tion. He must have the direction of the Surgeon Gen- 
 eral. And so in regard to the Commissary and Quarter- 
 master's Department, and the various other bureaus of 
 
47 
 
 the several principal branches of the executive authority. 
 In each and all of these the power is given to direct pur- 
 chases to be made ; to appoint agents for that purpose ; to 
 devise checks and balances to secure a proper accountability. 
 Here the only difference is, that the law points out the 
 agents to be employed, so that neither Inspectors, nor Direc- 
 tors, nor Surgeons in the line or in liospitals, shall be 
 charged with the duty of selecting and purchasing, unless 
 they are also Purveyors. 
 
 An illustration may be drawn from the laws empowerino- 
 the Quartermaster General, and the Commissary General 
 and the head of the Ordnance Bureau to make contracts. 
 They all make contracts subordinate to the superior author- 
 ity of the Secretary of War ; they all delegate the authority 
 to their subordinates to make contracts or obtain the neces- 
 sary supplies. Undoubtedly contracts so made are valid 
 contracts, and would bind the Government, although there 
 may be no statute authorizing them. Nor could the officer 
 making them be charged with a wrongful and unlawful act, 
 and subjected to a Military Court, unless it could be further 
 shown that they were corruptly made. And so an officer in 
 the field commanding an army, or having a detached com- 
 mand, has and must have, by virtue of his office, power to 
 make contracts for supplies, with which the Quartermaster's 
 Department is charged by law. Tlie illustrations are nu- 
 merous, and recur readily to the mind of every one practiced 
 in military affairs. But they are none of them strictly 
 analogous. None of them are cases where, by the express 
 words of the law, a particular subordinate officer is to be 
 charged, under the direction of his superior, with power to 
 purchase, and the discretion is left to the superior. Such is 
 the case here. 
 
 And the whole scheme and policy of the administration of 
 the Medical Department, as developed in the act creating the 
 office of Surgeon General, and the laws artd regulations sub- 
 sequent to it, and the practice of the office grown into a 
 usage, as shown in the proof, are consistent with this view. 
 He is the administrative officer. The rest are subordinates, 
 given to him as aids to effect the purposes of his office. He 
 
48 
 
 cannot multiply himself, so as to carry out all the details of 
 the service, hut he is held accountable to the country for a 
 faithful supervision of those subordinates, and a wise, pru- 
 dent, and faithful discharge of his own powers and duties. 
 Among these duties none is more important than the prepa- 
 ration, in due time, of fitting supplies to meet the constantly 
 recurring demands of his office. The Purveyor is given to 
 him for that purpose, but he is made entirely subordinate, 
 w'ithout power to make a purchase except under his direc- 
 tion, and no Purveyor, as we have seen, can make a pur- 
 chase unless he is '■^ charged " wnth that duty, under the 
 direction of his superior. It follows that as the duty of 
 providing the supplies exists, and is imposed on the Surgeon 
 General by virtue of his office, and the regulations of the 
 President, and the usages of his office, he must have the 
 power both to purchase himself and to charge a Purveyor 
 with that duty under his direction. The power then exists, 
 and he may lawfully exercise it himself or charge a Pur- 
 veyor with it. 
 
 If the power exists, and whether it does or not, we pro- 
 ceed to examine the manner in which, and the circumstances 
 under which it was exercised in this case. And if ever the 
 exercise of a questionable authority was justified or excused, 
 the evidence discloses a condition of things which af- 
 fords justification and excuse to the accused for the acts set 
 out in this specification. If the Court shall doubt as to the 
 power of the accused, exercised as it has been by his prede- 
 cessors, without objection or complaint, it is far better to 
 leave the remedy to Congress than by their judgment to 
 subject him to censure, if he has acted in good faith, be- 
 lieving he had the power. 
 
 The remaining questions under this specification are : Did 
 he act corruptly ? Was the extract of beef, so ordered by 
 him, inferior in quality? Was it unfit for hospital use? 
 Was it unsuitahle and umuholesome for the sick and w^ounded 
 in the hospitals ? Was it or not demanded by the exigencies 
 of the public service? 
 
 The history of the introduction of this article into the 
 service of the army is exceedingly well given in the testi- 
 
49 
 
 mony of Mr. Coleman. The origin of its manufacture by 
 Wyeth is also very clearly shown in the proof. There was 
 at the time this order was given, no other preparation of the 
 like kind known to the Department, but that of Mrs. Mur- 
 ringer. Such is the concurrent testimony of all the witnesses 
 except Dr. Cooper. 
 
 It had been tried on the Peninsula, and its virtues in part 
 ascertained, and antecedent to the order in question the 
 bloody field of Bull Run had demonstrated the value of the 
 preparation, and the Court cannot have forgotten the testi- 
 mony of Inspectors Coolidge and YoUum, whose simple and 
 touching narratives of its use on that occasion, brought so 
 vividly to view the picture of the thousands of wounded 
 and suffering soldiers, who, after the sad catastrophe of 
 that battle, were in the absence of almost all other suste- 
 nance nourished and kept alive by the timely supply of this 
 very article, administered to them for successive days by 
 these witnesses, who were thus enabled to save, as they 
 have sworn, the lives of thousands of our soldiers not sim- 
 ply by the intrinsic nutriment of the extract, but because 
 of the peculiar facility and rapidity of ■ its preparation for 
 use. 
 
 Such testimony is sufficient of itself to justify its pur- 
 chase by the accused ; but the proof in its favor goes much 
 beyond this ; for although the prosecution consumed many 
 days, and questioned a score of witnesses upon this point, 
 the only instances in which unfavorable testimony was eli- 
 cited, were the cases of Doctor Brinton, who tried a can of 
 it on the road to Gettysburg and thought it did not agree 
 with him, but who nevertheless testified that he issued large 
 quantities after that battle, to the amount of thousands 
 of cans, and never heard any complaint, save from one Sur- 
 geon, who thought some of the cans he received were defec- 
 tive ; and Surgeon Perrin, who wrote from Cincinnati that 
 twenty hundred and forty cans of the lot sent to him were de- 
 composed, assigning therefore as his reason, a test, which 
 both Drs. Woodward and A. K. Smith, clearly proved to 
 be entirely valueless. Some Surgeons were also examined, 
 who preferred beef tea freshly made for use, in permanent 
 4 
 
50 
 
 hospitals, but who had no personal experience of this par- 
 ticular article, and whose speculative opinions do not weigh 
 against positive proof. On the other hand Dr, Weir Mitchell, 
 of Philadelphia, one of the most accomplished physicians 
 in the country — Surgeons Brewer, Hoif, A. K. Smith, Cuy- 
 ler, Thompson, Hopkinson and Letterman, besides Surgeons 
 Coolidge and VoUum, all bear witness in unequivocal terms, 
 from their own experience, and some of them from an exten- 
 sive use of it, to its good quality, its great facility of prepa- 
 ration, its highly nutritious elements, and the fact that it is 
 a most valuable preparation for Field Hospitals, and the 
 exigencies of the battle field, while several of them even 
 prefer it to the fresh tea for permanent establishments. — 
 Surgeon Brewer was conclusive in his proof of its efficacy, 
 and Surgeon Hoff testified that in his experience on the 
 Mississippi where he issued large quantities, he could 
 not have got along without it. Purveyors Creamer and 
 Kittenhouse, who issued thousands of cans from St. Louis 
 and Cincinnati never received a complaint from any quar- 
 ter either as to its value or condition. Additional evidence 
 in its favor is also furnished in connection with the identical 
 lot of which Surgeon Perrin too hastily complained, in 
 the testimony of Inspector Coolidge, who tested in his 
 own family, and with a wounded officer in this city, a 
 number of cans forwarded by Dr. Perrin by direction of the 
 Surgeon General for examination. 
 
 Such proof as has been thus briefly summed up, must set- 
 tle the question of the allegations of its inferior quality, un- 
 wholesomeness, and unfitness for use witli the sick and 
 wounded. 
 
 The remaining question is, whether it was demanded by 
 the exigencies of the public service. The prosecution, with 
 all the power of the Government at its disposal, for the estab- 
 lishment of its theory, has been unable to discover more than 
 a few thousand cans remaining on hand in the storehouses 
 at Philadelphia, Washington, Cincinnati and St. Louis, and 
 that residuum made up in fact not only of Wyeths and 
 Bowers', but of Tourtellot's, Tilden's, Ellis', and Mrs. 
 Murringer's — a supply which may be exhausted by the con- 
 
51 
 
 tingencies of momently impending conflicts, whose sad cata- 
 logues of sick and wounded will we think, sufficiently vindi- 
 cate the wise prevision of the Surgeon General, in providing 
 for contingencies only too certain to follow in the train of a 
 bloody and protracted war. 
 
 And here allusion may be made to the fact that in order 
 to obtain for his department medical supplies of certain pu- 
 rity and less price the accused, more than fifteen months 
 ago, established manufacturing laboratories in New York 
 and Philadelphia. Does this look like favoring private per- 
 sons? 
 
 The second charge is of conduct unbecoming an officer and 
 a gentleman, and the only specification is that the accused 
 on the 13th October, 1862, wrote a letter to Dr. Cooper, 
 stating that he, Cooper, had been relieved as Medical Pur- 
 veyor at Philadelphia, because among other reasons Major 
 General Halleck requested as a particular favor, that Surgeon 
 Murray might be ordered to Philadelphia, which declaration 
 of the accused was false. 
 
 There is scarcely any part of this prosecution which more 
 clearly shows the venom of the principal witness brought to 
 sustain it than this. He avails himself of a private letter, 
 written in the kindest spirit, and in the confidence of the 
 relations which the whole record shows had up to that time 
 existed between himself and the accused, to inflict a deadly 
 wound upon his honor, of a character from which every 
 gentleman shrinks, and which repels every one from him. 
 whether in his official or his social relations. There is in 
 this a degree of malignity, and a want of high toned prin- 
 ciple exhibited, which alone should make us look upon all 
 his testimony regarding the accused with the gravest sus- 
 picion. 
 
 A charge thus made with a specification so distinct, should 
 be supported by the clearest, and most direct evidence. 
 There must be no want of recollection, no doubt, no hesita- 
 tion, no room for misapprehension in the proof brought to 
 support it. The memory of the witness who is assumed to 
 sustain it must be as distinct and. clear as if the fact had been 
 recorded at the time, and if possible it should be corrobora- 
 
52 
 
 ted by some circumstance. The distinct affirmation of a fact 
 made by an officer should have the same weight with his 
 peers^ (although not admissible as evidence) on his trial, as 
 if he had sworn to it, for it may be assumed without fear 
 of successful contradiction that in ninety and nine cases out 
 of a hundred the officer who would make such a statement in 
 writing would swear to it. 
 
 We have in this case the averment of a fact in writing, 
 made by the accused at the time of the occurrence — made 
 without any adequate motive to say what was false, yet made 
 under all the solemn obligations which can bind a man of 
 honor, holding a high rank in the confidence of his Govern- 
 ment, and when the means of contradiction and the danger 
 of discovery were both convenient and certain. For he knew 
 the temper of the man to whom he was writing, and his 
 promptitude and energy when he was aroused. 
 
 Now after the lapse of more than fifteen months passed in 
 the midst of a pressure of public aflairs, tasking his mind 
 and memory to their utmost capacity of endurance, General 
 Halleck is called to prove that he made no such request as 
 the accused deliberately said he had made of him in October 
 1862. General Halleck, as was to have been expected, does 
 not contradict him. He says at page 6T6, he wrote a letter 
 about the 1st October, 1862, to the accused in relation to 
 Surgeon Murray, which letter is put on the record at p. 67*7. 
 At p. 678, "to the best of his recollection," he says, he did not 
 make any other communication to the accused upon that sub- 
 ject, not even orally. This is the whole of it. This is no 
 such denial as is absolutely required to disprove the assertion 
 of the accused. The prosecution has undertaken to prove 
 that assertion to be untrue, and they must prove, not that 
 the witness does not recollect, hut that he does recollect, and re- 
 collecting positively denies the fact. 
 
 But this is not all. On the same page Gen. Halleck says 
 he received a communication from Dr. Murray ; "to the best 
 of his recollection," [the very words used in chief,] he said in a 
 private letter, "I should like to go east on hospital duty." 
 I do not think he designated any place ; and I wrote the 
 letter to the accused immediately after receiving Dr. Mur- 
 ray's letter, probably the same day." 
 
53 
 
 That letter of Surgeon Murray to General Halleck will be 
 found on pp. 716, 717 of the record, and in it he says, p. 
 717, ''I want to be ordered to Hospital duty in Philadelphia, 
 New York, or some point north of these places. Philadel- 
 phia ivould suit me best." '^If you will send a memorandum 
 to the Surgeon General's office, requesting him to order me to a 
 Hospital in Philadelphia it will be done at once." 
 
 The accused does not say Gen. Halleck asked him to make 
 Murray purveyor, or to give him hospital duty, but to assign 
 him to duty in Phihadelphia, and he was not at that time as- 
 signed to duty as Purveyor. Hoiv did he knotv that Murray 
 desired to go to Philadelphia, and how did he Jcnoio that he 
 had so loritten to Gen. Halleck f It is quite clear tJwse facts 
 ivere known to him, and they must have come through Gen. 
 Halleck, for the letter was a private letter, and although Gen. 
 Halleck does not in his letter to the accused ask that Murray 
 shall be sent to Philadelphia, yet no rational mind can resist 
 the conclusion from the evidence on this subject that Gen. 
 Halleck did make the request in some personal interview, 
 and in the vast amount and weight of other matters by 
 which he was overwhelmed, has forgotten it as he forgot 
 that Murray, his friend, applying to him for aid, and whose 
 cause he espoused, asked him to do precisely what the ac- 
 cused says he did do, if not send a memorandum^ at least 
 request the accused to order Murray to Philadelphia. 
 
 It is no reproach to General Halleck to suppose he has 
 forgotten a comparatively trivial private matter, while it 
 would be unmitigated disgrace to the accused to find him 
 guilty of fabricating a falsehood so idle and purposeless as 
 that with which he is herein charged. 
 
 The accused knows that he made no intentional misstate- 
 ment of the wishes of Major General Halleck, and he is posi- 
 tively sure, and avers that he had a conversation with him, 
 in the course of which reference was made to the transfer of 
 Doctor Murra}'' to Philadelphia, and he cannot believe that 
 a Court of the high character of the one required to decide 
 this question, will do him the injustice of attaching crimi- 
 nality to a matter so easily and naturally explained by the 
 suggestive circumstances surrounding it. 
 
54 
 
 As to the third charge and the two specifications under it, 
 the accused hesitates to make any reply. 
 
 He is charged with conduct to the prejudice of good order 
 and military discipline. 1st, that on the 8th November, 
 1862, he did unlawfully and corruptly order and cause Hen- 
 ry Johnson, Medical Storekeeper and acting Purveyor at 
 Washington City, to purchase three thousand blankets from 
 from one J. P. Fisher, at the price of $5.90 per pair, to be 
 delivered to surgeon Cooper at Philadelphia. 
 
 There was a clerical mistake in the order to purchase these 
 blankets from J. P. Fisher, it should have been T. J. Fisher. 
 The order was not given by the accused personally, but by 
 one of his assistants, and that fact stands out palpably as 
 known to the prosecution. Yet much was sought to be 
 made of this, as though it were a badge of concealment. 
 The proof on the part of the government is conclusive, first, 
 that the blaukets were required by Cooper. His letter is in 
 the record. Second, that he could not get them in Phila- 
 delphia. Third, that T. J. Fisher offered them to the ac- 
 cused when they were thus needed, and the accused directed 
 Mr. Johnson to buy them at a price which was below the 
 market price, and Johnson did buy them and they were sent 
 to Cooper. The witnesses are T. J. Fisher, Mr. Waterbury 
 and acting Purveyor Johnson. 
 
 It is difficult to conceive the motive which prompted this 
 specification, when not only is there a total absence of proof 
 on the part of the prosecution to show any corrupt motive in 
 the accused, but the evidence produced by them, indepen- 
 dent of the explanation given by Mr. Fisher and Mr. Water- 
 bury, shows the public need demanded the blankets to be 
 sent to Cooper, and there is not a particle of proof to show 
 that the charge was too high; and the very "direction" 
 given by the accused to the Acting Purveyor was within the 
 letter and spirit of the Act of 16th April, 1862. 
 
 And the second Specification of this charge, that he did 
 on or about the 3d December, 1862, unlawfully and corruptly 
 purchase or caused to be purchased of J. C. McGuire & Co., 
 large quantities of blankets, and bedsteads, tcliich were not 
 needed for the public service, is like its immediate predeces- 
 
55 
 
 sor, a wonder and surprise, for it is not only not proved, but 
 is disproved by the prosecution itself. 
 
 ■ Under these two specifications and this third charge, the 
 prosecution has taken a roving-commission; has put Bras- 
 tow and Breed on the trail ; the witnesses have moused 
 about in the storehouses and hospitals, explored the Insane 
 Asylum, and with marked evidences of unsound condition 
 in themselves, have found unsound whiskey not fit for any 
 kind of use, and unsound chemistry to demonstrate its un- 
 fitness ; unsound tea, and a most uncertain source of its 
 supply -, and that the unhappy inmates of the hospital who 
 fell into' the hands of this corrupt and reckless head of the 
 Medical Department, were deprived of the right of spending 
 their hospital money, not the money of the Government, as 
 their hospital stewards and surgeons saw fit, and compelled 
 to take wholesome fresh, daily, hospital supplies at cheaper 
 rates, furnished in a more convenient mode. Beyond this 
 they have found that Fisher and McGuire supplied better 
 articles at a cheaper rate, with more expedition and^ cer- 
 tainty than any one else, [so swears Dr. Laub, and he is no 
 friend of the accused] ; that Kid well and Cissell supplied 
 drugs and medicines, and even extract of beef, at Philadel- 
 phia prices ; and Cozzens, Tarragona and other wines of fine 
 quality at a fair price ; they have also found that in some 
 instances the accused directed articles to be purchased by the 
 Purveyor in charge, in others approved contracts made by 
 him, and in others ordered him to procure supplies, which 
 the Purveyor translated into orders to get them from par- 
 ticular persons. 
 
 And this is no distorted or exaggerated statement of the 
 outline of these two specifications— specifications as earnestly 
 pressed as those involving the dealings with Stephens and 
 Wyeth, but they lacked the support of Dr. Cooper or his dis- 
 tinguished friend Mr. Keffer, the distiller of alcohol, who rubs 
 his^irit on his hands to see whether the fusel oil in it will 
 glue them together, and who examines liquors at a hospital 
 by the request of certain physicians, one of whom did not 
 know him, the other was not there, and had never seen him, 
 and neither of whom had asked him to do any such thing. 
 
56 
 
 If Cooper and Keffer could have "been added to Breed and 
 Brastow — Brastovv brought up in a country store, to attain 
 knowledge and skill in the inspection of blankets^ teas 
 and liquors, and to head a commission to investigate the con- 
 dition and aifairs of the medical department of the largest 
 army in the civilized world — if they had only been associated 
 in the explorations here, there is no telling what might 
 have been the result. As it is they had only Dr. Laub to 
 tell the truth so far as his memory would assist him, and 
 Brastow and Breed to give the coloring. 
 
 Under these specifications the prosecution has introduced 
 the proof in regard to the quality of the bedsteads supplied 
 to the Department ; their number and value ; and with 
 the contracts present made by Dr. Finley, the immediate 
 predecessor of the accused, with Fisher in the month of 
 April, 1862, and in progress of execution when the accused 
 came into office, has strenuously labored to exclude those 
 contracts from the notice of this Court, while it has as 
 strenuously endeavored to charge all the bedsteads furnished 
 under them to the administration of the accused, especi- 
 ally and particularly those furnished to Dr. Satterlee. It 
 has endeavored to show that Fisher charged widely dif- 
 ferent prices for the same article, and the higher price was 
 approved, and when driven from this ground by the force of 
 the irresistible testimony of Fisher and Dr. Murray, the 
 prosecution falls back on the last contract made by Dr. Mur- 
 ray with Mr. Fisher as proof of the exorbitant character of 
 the others, and, such is the tenacity of purpose with which 
 a conviction is sought to be obtained, when Mr. Fisher shows 
 conclusively that he lost money on that contract, and only 
 took it to avoid a greater loss on material prepared and on 
 hand to fulfil a previous contract which he well believed he 
 had made, the prosecution again falls back on the oral or- 
 ders which it is supposed were from time to time given by 
 the accused, and does not yield when it is proven the accused 
 never gave Fisher an order in his life. It would be a waste 
 of time to pursue this matter further. There is an absolute 
 failure of proof. 
 
 And so, as to the blankets referred to in the same specifi- 
 
5Y 
 
 cation — needed by the Government — bouglit by Fisher for 
 cash — sold to the Government on credit — a good article at a 
 fair price — purchased by the Purveyor by direction of the 
 accused, what can be said upon the proofs here to show a 
 corrupt motive in so plain a case of a simple discharge of 
 duty. 
 
 And so as to all the supplies furnished by McGuire and 
 Fisher, in fitting up the numerous and extensive hospital 
 churches with promptitude, energy and despatch for the re- 
 ception of the sick and wounded, the wasted, and worn sol- 
 diers from battle-field, and hospital, who were being crowded 
 into this city. 
 
 If there is an act in the life of the accused which merits 
 commendation, it is this very action, now made the ground 
 of accusation, which enabled him to provide, as fast as they 
 arrived, for the thousands of soldiers then poured into this 
 city needing medical aid and treatment, and who without 
 his earnest, ceaseless, watchful care and providence at that 
 time must have been subjected to great suffering. 
 
 Dr. Laub himself confirms all this. But it may stand 
 alone on the testimony of Mr. Fisher, who although at that 
 time and long afterwards personally unknown to the accused, 
 deservedly enjoyed, and still enjoys among his fellow citi- 
 zens a reputation for integrity, fidelity and truthfulness that 
 has no superior. 
 
 It remains, after the brief discussion of the several charges 
 and specifications to which the attention of the Court has 
 been invited, to task their patience for a few minutes longer 
 in calling to their notice various matters which have formed, 
 as it were, side issues in the trial of this cause. This is the 
 more necessary because it has been found impossible, in the 
 time allowed for this defence, to make an analysis of the 
 testimony, such as it was the design of the accused to have 
 presented, and which would materially have relieved the 
 Court in their examination and consideration of it. It is so 
 disjointed ; the evidence relating to the same matters is so 
 scattered throughout the volume and mass of the proofs ; 
 there is so much immaterial and irrelevant matter inter- 
 mingled with it, that such an analysis is greatly needed, 
 and the accused has to throw himself on the patient indul- 
 
58 
 
 gence of the Courts so long extended to him already, while 
 he briefly recalls some of those parts which may seem to 
 have some bearing on the points really in issue, although to 
 his mind they have not the remotest relevancy to them. 
 
 The principal grounds of accusation are : First, that he 
 has exceeded his lawful power and authority in purchasing 
 supplies himself ; in directing supplies to be purchased from 
 particular persons, and in prohibiting their purchase at a 
 certain place. Second, that he has corruptly employed his 
 office to promote the interests of particular persons, and a 
 particular place, although he knew those persons had been 
 defrauding the Government, and the exigencies of the pub- 
 lic service did not require the purchase. Third, that he has 
 unlawfully exercised his office in requiring Medical Inspec- 
 tors to report directly to himself. Fourth, that he has told a 
 wilful falsehood. 
 
 To each of these subjects matter the accused has, with the 
 utmost brevity, but he hopes with clearness and precision, 
 given his answers, resting on the evidence in the record, and 
 a just and fair construction of the law_, for his full defence. 
 But, as he understands the matter, numerous facts, not set 
 out or in any way shadowed forth by the specifications, or 
 any of them have been introduced to give coloring to those 
 really charged, or to qualify the motive by which the acts 
 charged have been characterized ; and however remote and 
 irrelevant those facts may appear to him, it is proper he 
 should take some notice of them. 
 
 Great stress has been laid on the fact that Mr. John 
 Wyeth is not here, and he has even been spoken of as a 
 fugitive from justice. Mr. Wyeth is not on his trial now. 
 He is defenceless and absent. It is difficult to perceive how 
 this bears on the truth or falsity of any one of the accusa- 
 tions against the accused. 
 
 The testimony of Col. Scott, late Assistant Secretary of 
 War shows that before Mr. Wyeth made his final prepara- 
 tions to leave Philadelphia, he, Col. Scott, informed the 
 Secretary of War that Mr. Wyeth was going as the agent 
 of a company in which Col. Scott himself was largely in- 
 terested, to explore a portion of the territory of Arizona, 
 but having heard rumors of the developments made by the 
 
59 
 
 Keeder Commission, lie would not go if lie was in any man- 
 ner implicated by the report of that Commission. He was 
 answered that the Secretary had not read the report, but he 
 would let him know in a few days. The parties waited 
 several days beyond the time indicated by the Secretary, and 
 then hearing nothing from him, completed their arrange- 
 ments. On the 20th Dec, 1863, Col. Scott was informed by 
 the Secretary that a court martial would be ordered. On 
 the same day Col. Scott replied that Mr. Wyeth must go ; 
 and asked if any changes were necessary before Wednes- 
 day, (the 23d,) to advise him. Nothing further was 
 done, and Mr. Wyeth sailed on the 23d. The Government 
 had the fullest oj)portunity to know when Mr. Wyeth 
 reached California, and that he was there openly till some 
 time in March. There was no concealment in his going ; 
 or as to his whereabouts afterwards; he is not and never was 
 a fugitive from justice. So much is due to Mr. Wyeth. In 
 his absence the accused has lost a most material, and impor- 
 tant witness. He was ignorant of his intention to go at that 
 time, and equally so of his having gone till after this Court 
 was ordered. He challenges a scrutiny into the record in this 
 cause for a scintilla of proof, that he was in any manner 
 interested with John Wyeth, or any member of his house 
 in any of their transactions with the Medical Department, 
 or for any fact tending to show such interest. 
 
 And do in like manner the prosecution has drawn into 
 this case an alleged failure of supplies immediately after the 
 battle of Gettysburg. Under what specification all that 
 evidence was admitted and how it bears on any one of them 
 the accused is at a loss to discover. However that may be 
 lie confidently points to the evidence in the record of Pur- 
 veyor Brinton, Inspector Cuyler, and Director Letterman, 
 and to the whole testimony on that subject for his complete 
 vindication from every ground of suspicion of neglect or 
 want of foresight on that occasion. 
 
 And so in like manner, the evidence of Dr. Satterlee, as 
 to the Port Wine purchased from Mr. Cozzens, and some of 
 v/hich Dr. Satterlee thought was bad. To what specifica- 
 tion does that apply ? That too is full and most satisfactorily 
 explained by Mr. Cozzens,and put right by Purveyor Creamer. 
 
60 
 
 And so as to tlie wines and teas purchased in the Dis- 
 trict of Columbia, of which no notice is given in any one of 
 tlie specifications ; wines and teas proved to be of excellent 
 quality and bought at advantageous prices. 
 
 And so as to the drugs and medicines purchased from 
 Kidwell & Cissell, with which no fault could be found. 
 
 And so as to the purchase of the remnants of Wyeths stock 
 in the warehouse, a purchase which Dr. Murray has shown 
 was made by himself, selected by himself, priced by himself, 
 paid for by himself. 
 
 To enumerate all the other outside matters, having no direct 
 bearing upon any one of the issues, and which are irrelevant 
 and immaterial, would exhaust the patience of the Courts 
 and he forbears to press them further on its attention. 
 
 The accused has now covered as fully as time and oppor- 
 tunity would permit, the chief points of accusation against 
 him. 
 
 With skill and labor the law officer of the Government has 
 sought to bring to the notice of the Court, the main facts and 
 the minute details of the official connection of the accused 
 with all the matters of alleged wrong doing. Unlimited 
 in his power to collect witnesses and amass documentary 
 evidence, the country has been traversed in search of the 
 one, and the files of the Departments eviscerated for the 
 other, and in the swollen record now open to the inspec- 
 tion of the Court, it is fair to assume is embodied everything 
 that could be supposed to tell injuriously upon the official 
 conduct and fair fame of the accused. He has been a deeply 
 interested party to this trial, not because its possible issue 
 involves the loss of official position. That is indeed some- 
 thing, but his good name is of infinitely greater value. 
 His personal honor has been put in issue, and for it he makes 
 earnest contest. Two years ago he went into the office of 
 Surgeon General at the invitation of the President and with 
 the confidence of the Government. Duties of the most im- 
 portant and various character instantly devolved upon him. 
 His responsibilities were grave and heavy. The land re- 
 sounded with the tread of immense armies, and their needs 
 demanded from him prompt and earnest action. The rap- 
 idly developed necessities of these great armaments also re- 
 
61 
 
 quired important changes in the organization of his Depart- 
 ment, and much labor was needed to increase its efficient 
 working. The changed condition of national affairs called 
 for larger expenditures and larger views, and this, as the evi- 
 dence shows, when ready money was not at his command. The 
 reputation of the country demanded that the brave defenders 
 of its highest interests, should be accompanied everywhere and 
 under all circumstances with whatever an advanced medical 
 science, and a thorough prevision of their wants could suggest. 
 To do this — to do it completely, so that all probable contin- 
 gencies of sudden demand should be confronted with an ample 
 supply, and to discharge all his duties with no contracted 
 ideas of an unwise and hurtful economy, but with a compre- 
 hensiveness bearing some relation to the magnitude of the 
 great events in the midst of which he was acting, the accused 
 confesses to have been his ambition. Doubtless his performance 
 may have fallen short of his desire. Doubtless he may have 
 committed mistakes of policy. Doubtless in the midst of en- 
 grossing duties he may have failed at times fully to satisfy 
 the demands of the service. Of one thing however he is ab- 
 solutely sure, that with right purposes and honest motives he 
 has endeavored to discharge his duties, and upon careful revi- 
 sion of the record of this case, he sees in it no sustained asper- 
 sion of his honor. It shews that in all the multiplicity of the 
 transactions it has disclosed, and in the millions of expendi- 
 tures to which it has referred, no single witness could be pro- 
 duced, though all of them who ha-d dealt with his Department 
 were challenged to the proof, who casts upon him the shadow 
 of personal corruption. Whatever of erroneous judgment, of 
 unintentional error there may be, not only is no corruption 
 shown, but it is positively disproved by the most emphatic 
 evidence. The Court has heard the case with patience and 
 courtesy. To it is now committed the judgment of his con- 
 duct, and the accused asks only a candid consideration and a 
 just decision. 
 
 WM. A. HAMMOND, 
 
 Surgeon General U. S. A. 
 
 Joseph H. Bradley, Washington, ) p , 
 J. Morrison Harris, Baltimore, ) ounse . 
 



 
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