1st Session. IN THE SENATE OF THE UNITED STATES. No. 4. MAY 7, 1879.-Ordered to be printed. Mr. WHYTE, from the Committee on Naval Affairs, submitted the fol lowing REPORT: [To accompany bill S. 125.] The Committee on Naval Affairs, to whom was referred the bill (S. 125) to appoint Spruille Braden an ensign in the United States Navy, report: That the facts in the case of Spruille Braden are set forth at length in the accompanying letter, from the Secretary of the Navy. It would seem from this state of facts that Mr. Braden would make an excellent officer of the United States Navy, and has the qualifications and characteristics to distinguish himself in the service. We therefore recommend the passage of the bill. NAVY DEPARTMENT, Washington, February 6, 1879. SIR: I have the honor to acknowledge the receipt of the request of the Senate Committee on Naval Affairs, communicated on the 24th ultimo, that the department would lay before them such information as it may be in its power to furnish in reference to the appointment of Spruille Braden as an ensign in the Navy, with such recommendation as it may think proper to make. The department has no official information on the subject, but there is no reason to believe that the following statement of facts is not reliable: Young Braden was not long since a pupil in a naval college in England, where he passed through a course of professional study; and is supposed to have been the first American youth who was ever admitted to a like privilege. At the close of his term. he passed the customary examination, graduated at the head of his class, which, besides himself, was composed entirely of young men of England, and won the annual prize, valued at $500, which is conferred by the Queen upon "the boy who shows the qualities likely to make the finest sailor." He seems to have achieved the triumph not only because in the opinion of officers and professors he had fairly won it, but with the unanimous assent of his classmates, who were magnanimous enough to concede it. Several other prizes were also awarded to him under like circumstances. After his graduation, young Braden was offered a midshipman's warrant in the royal navy, upon the condition that he would renounce allegiance to the Government of the United States and become a citizen of Great Britain. The temptation was great to a young man just entering life, but he declined it upon the express ground that he owed a higher duty to the country of his nativity, from which nothing could release himnot even the prospect of honorable service and promotion in the British navy. Under these circumstances, it would seem that to place him “at the foot of the list of ensigns on the active list" of the Navy, which is proposed by Senate bill No. 1638, would be an act of generosity on the part of his own government, which, throughout his life, he would not be likely to forget. He would not, in that position, interfere with the promotion of any of the ensigns now in the Navy; but, taking his place at the foot of the list, would realize that his future official success would depend upon his own personal merit. The department, therefore, can see no objection to the passage of the bill laid before it by the committee. Very respectfully, Hon. A. A. SARGENT, Chairman Committee on Naval Affairs, R. W. THOMPSON, United States Senate. 1st Session. IN THE SENATE OF THE UNITED STATES. MAY 28, 1879.-Ordered to be printed. No. 5. Mr. GROVER, from the Committee on Military Affairs, submitted the following REPORT: [To accompany joint resolution S. R. 15.] The Committee on Military Affairs, to whom was referred the joint reso lution (S. R. 15) requiring the assembling of a court of inquiry in the case of Thomas Worthington, beg leave to submit the following report: Col. Thomas Worthington was, during the late war, colonel commanding the Forty-sixth Regiment Ohio Volunteer Infantry, from January 30, 1862, when he was promoted from the lieutenant-coloneley of the organization to the coloneley of the completed regiment, until his court-martial and dismissal from the service in the fall of 1862. It appears that he distinguished himself at the battle of Shiloh. General Sherman, in his report of that engagement, under date of April 18, 1862, says: "His (McDowell's) subordinates, Colonels Hicks and Worthington, displayed great personal courage." There is other evidence tending to show that he behaved bravely, and managed bis men with skill in that action. Subsequent to this, to wit, on August 12, 1862, General Sherman issued General Order 69, Headquarters Memphis, convening a general court-martial for the trial of Worthington and others upon the charges of drunkenness and conduct unbecoming an officer and a gentleman. Under these charges there were various specifications, on some of which he was found guilty" and on some "not guilty." The court thereupon sentenced him to be cashiered. The findings and sentence of the court were approved by General Sherman on September 16, 1862, and promulgated in General Order 83, Headquarters Fifth Division Army Tennessee. By General Order 86, Headquarters District of West Tennessee, dated October 1, 1862, the same were approved by General Grant. Against the proceedings in the premises Colonel Worthington formally protested under date of September 17, 1862, upon the ground that under the provisions of section 65 of the Articles of War the same were irregular and void inasmuch as General Sherman, who ordered the courtmartial, was the "accuser or prosecutor." It does not appear that this protest was brought to the notice of General Grant before he approved the proceedings of the court-martial; but there is an official indorsement made thereon by him, seventeen days subsequent to his order of October 1, simply referring the same to the Secretary of War. It further appears from the record in the case that the whole matter was reviewed by Judge-Advocate-General Holt, to whom the protest of Colonel Worthington was referred, who, under date of November 19, 1862, writes as follows: Hon. EDWIN M. STANTON, Secretary af War: JUDGE-ADVOCATE-GENERAL'S OFFICE, SIR: I beg to call your attention to the records of the proceedings of a general courtmartial held at Fort Pickering, Memphis, Tenn., under General Order No. 69, issued by Major-General Sherman on the 12th of August, 1862, and which resulted in the dismissal of Col. Thomas Worthington from the service. This officer now complains of the proceedings as irregular, and insists that the findings and sentence are inoperative and should be disregarded because Major-General Sherman, by whom the court-martial was ordered specially for his trial, was also his accuser or prosecutor in the case. The objection seems to me well taken. The act of 29th May, sec. 1, 1830, declares that "whenever a general officer commanding an army or a colonel commanding a separate department shall be the accuser or prosecutor of any officer in the Army of the United States under his command, the general court-martial for the trial of such officer shall be appointed by the President of the United States." During the progress of the trial Colonel Worthington formally objected in writing to proceeding further without knowing by whom the charges were drawn or advanced.' His objection was overruled. This was irregular. Every officer on trial before a general court-martial is entitled to this information, since without it he can never certainly know whether the tribunal before which he is arraigned has been legally constituted or not. Major-General Sherman now states in writing that the subject-matter of the charges were made by him and placed in the hands of the judge-advocate. This, it is believed, constituted him an "accuser or prosecutor" in the sense of the act of 29th May, 1830, and from him, as such, the power to appoint the court-martial was expressly withheld and given to the President. His action, therefore, in ordering a court-martial specially for the trial of an officer against whom he had preferred charges to be investigated, being without legal sanction, the court itself was without color of authority and its proceedings and findings are a nullity. The matter of defense now urged did not, as the commanding general supposes, constitute a plea in abatement, which should have been presented at an earlier stage of the proceedings. The irregularity suggested does not call in question merely the jurisdiction of the court to try Colonel Worthington, but its existence as a legally organized tribunal. It is never too late to insist on so radical and fatal a defect as this. It is of the highest importance that the administration of public justice, as well in the military as in the civil service, shall be not only pure but unsuspected. This, however, could not be the case, were a commanding general, with all the moral power which belongs to his position, permitted at once to prefer charges against his officers and to organize courts-martial for their trial. While, however, the findings and sentence of the court as embodied in this record cannot, for lack of legal sanction, operate er proprio vigore, to remove Col. Worthington from the service, may not the facts reported, and on which they are based, furnish ground for the action of the President under the 18th sec. of the act of 17th July, 1862, chap. 200? In continuation of the opinion, of which the above extract forms the first part, the Judge-Advocate-General characterizes the evidence given before the court as amply sufficient to sustain the findings and to warrant the President in exercising his powers under the act cited of 17 July, 1862. But, so far as your committee can learn, no action was ever taken by the Executive conformable to the suggestion of the JudgeAdvocate-General; but the contrary would appear, from the following letter, to have been the case: WAR DEPARTMENT, ADJUTANT GENERAL'S OFFICE, Washington, March 28, 1878. SIR: I have the henor to report on your reference of the letter of Hon. Mills Gardner, M. C., for information whether Col. Thomas Worthington, Forty-sixth Ohio Vol nuteers, was dismissed by the late President Lincoln, that the official records of this office indicate that he was not. To the honorable the SECRETARY OF WAR. SAMUEL BRECK, Assistant Adjutant-General. [The balance of the above letter simply recites the court-martial of 1852 and the revocation of the sentence in 1867.] On December. 22, 1865, Colonel Worthington addressed the following letter to the Secretary of War: Hon. E. M. STANTON, Secretary of War: WASHINGTON, December 22, 1866. SIR: On the 10th day of August, 1862, at Memphis, Tenn., I offered my resignation, to take effect at such date as the government might determine. On that day I was put in arrest on charges the proceedings with regard to which have been declared null and void for various irregularities. If any order for my dismissal on recommendation of the Judge-Advocate-General was issued, I feel very sure it is not of record in the Adjutant-General's Office, and I have never received any notice of the same, nor has it been promulgated in general or special orders to the brigade or division of which my regiment formed a part. I therefore respectfully request that all proceedings, of whatever character, under the charges against me may be set aside and my resignation of August 10, 1852, may be accepted to take effect on the first day of March following. From July 29, 1861, when my regiment was accepted, to January 30, 1862, when I was commissioned as colonel of the Forty-Sixth Ohio Volunteer Infantry, my expenditures were over $2,000 in recruiting the Forty-Sixth Regiment Ohio Volunteers. None of this has yet been refunded, and half of it or over I cannot recover under the rules of the department. I therefore trust that my request as to the date of my resignation may not be considered unreasonable. It will allow me three months and eight days' pay after the 21st day of November, 1862, up to which time I have been paid. Or if it is deemed most proper to give me an honorable discharge, with or without reference to my real or intended dismissal, I shall of course acquiesce, still requesting that the discharge may be dated on or after the 1st day of March, 1863. Very respectfully, T. WORTHINGTON, Late Colonel Forty-Sixth Regiment O. V. I. On January 8, 1867, the Secretary of War directed the revocation of Colonel Worthington's dismissal, and the Adjutant-General on that date issued Special Orders No. 11," of which the following is an ex tract: 5. So much of General Orders No. 85, dated October 1, 1862, from headquarters district of West Tennessee, as cashiered Colonel Thomas Worthington, Forty-sixth Regiment Ohio Infantry Volunteers, is hereby revoked, and he is honorably discharged the service of the United States upon tender of resignation to date November 21, 1862, to which date he has been paid. By order of the Secretary of War. E. D. TOWNSEND, It does not appear, then, that Colonel Worthington ever complied with the condition of the order honorably discharging him, by tendering his resignation to take effect on the specified date of November 21, 1862, and he asserts before your committee that he never did do so; but his resignation which was accepted and acted upon was dated to take effect March 1, 1863. Colonel Worthington further asserts that his tender of resignation to take effect on March 1, 1863, as presented in his letter of December 22, 1866, above quoted, was made under circumstances of Special hardship forcing him to that course, inasmuch as his "claim for recruiting pay connected with the Forty-sixth Regiment Ohio Volunteer Infantry could not be settled so long as he lay under the disability of the sentence of the court. In evidence of this he submits the following letter of the then governor of Ohio: |