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LIBRARY OF CONGRESS 
 
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 OP 
 
 SAMUEL M. HARRINGTON, Jr., 
 
 WILMINGTON, DELAWARE, 
 
 Colonel S. M. BOWMAN, U. S. A., 
 
 IN DEFENSE OF 
 
 ED^W^IlSr ^v\riLMER, 
 
 PROVOST MARSHAL OF DELAWARE. 
 
 BEFORE A 
 
 COURT MARTIAL IN WASHINGTON CITY, D. C, 
 • June 2d, 1865. 
 
 King & Baird, Printers, 607 Sanaom Street, Philadelphia. 
 
 / 
 
May it please the Court — 
 
 I should feel that I had not performed, my duty, if I failed to make 
 profound acknowledgments for the courtesy, indulgence, and patience 
 the Court, and for the frankness, fairness, and kindness of the Jud 
 Advocate to both the accused and his counsel. 
 
 Since the commencement of the late rebellion, now happily ended by 
 the military power of the Government upon the basis of Freedom and 
 Union, there is no State where opinion was so evenly divided and so warm 
 and antagonistic without breaking into open war, as the State of Dela- 
 ware, Nowhere was the line between the supporters and the opponents 
 of the administration and the war to suppress rebellion, more clearly and 
 distinctly drawn. A public officer was sure to meet the condemnation of 
 one side, while he was also likely to offend many of the other. Perhaps 
 the most delicate, unpleasant, and unpopular duties were those of the 
 several provost marshals, who were the instruments of the Government to 
 raise the armies for its defence. This duty often involved the necessity 
 of requiring that unwilling men should either themselves perform mili- 
 tary duty in the field, or should, at considerable outlay, be represented 
 by another for that purpose. It can readily, therefore, be seen how such 
 duties affecting %o closely the personal safety or the pecuniary ability or 
 the business circumstances of the whole community, would naturally 
 excite unfavorable impressions and very often unjust complaints. If a 
 quota Avas deemed too large ; if a credit too small ; if a draft was not 
 delayed ; if a draft was made at all ; if an exemption was not granted or 
 a volunteer not accepted, there was always some one to complain, and 
 under a mistaken sense of personal wrong and injustice to publish com- 
 plaints far and wide, and to excite hostility and bitterness of feeling. In 
 addition to this there was a large class who, determined not to be recon- 
 ciled, under any circumstances, to conscription, would array the feelings 
 and prejudices of the masses against the party chosen by the Government 
 to carry out its policy. 
 
 No man, perhaps, in the entire Provost Marshal's Department, had a 
 more trying, vexatious, annoying, and unpleasant position than the 
 Delaware Provost Marshal. With the entire legislation of the State 
 •against him, surrounded by hundreds of men whose party interest it was 
 to embitter persons against him as the embodiment of all that sought to 
 snatch them forcibly from their families, and to s.end them where danger 
 and wounds and death filled every moment with pain and suffering, how 
 could he be just and faithful without giving offence ? how could he fail to 
 make enemies who would pursue him with intensest bitterness? 
 
 To have performed these arduous and perplexing duties with unwaver- 
 ing justice and unimpeachable integrity, with actiVe"*loy>alty and constant 
 attention, would have been a success that few men could have dared to 
 hope for ; but from the beginning to the close such was the aim and con- 
 scientious purpose of this accused. 
 
 The war has ended in the suppression of the rebellion and in maintain- 
 
 6 A D W .1 
 
 -Ige V 
 
^ 
 
 ing the authority and integrity of the Union. Thank God for tlint! It 
 is the era of peuce and forgiveness' even to those who have con- 
 spired to destroy our country. While these are forgiven and caressed, it 
 seems hard, very hard, that a faitlifiil and loyal officer should, at the very 
 close of his official career, be called upon to defend the whole of his 
 conduct that under the most trying circumstances, and in the face of a 
 most exacting constituency, rendered such signal service to the Govern- 
 ment. 
 
 The public judgment of officers is apt to be unjust. Whilst it is ever 
 ready to condemn one fault or error, it is swift to forget a thousand noble 
 services. One mistake overwhelms a hundred evidences of fidelity, fore- 
 sight, prudence, and judgment. Wisely and most mercifully, the law 
 :il having regard to the frailty of men and to the fallibility of human intelli- 
 ^gence holds no officer responsible when he has exerted his best ability and 
 followed his purest motives in determining his official policy. There are no 
 ^officers who do not err ; I doubt whether there are many in this land who 
 "v could undergo such a searching investigation into all their acts as this 
 ,v accused has undergone, without finding more of error than has been dis- 
 ^ closed against Edwin Wilraer. There are none who can show a record of 
 greater activity and devotion to the interests of the Government, more 
 earnest and zealous loyalty, more self-sacrifice and pecuniary loss, and I 
 may say, with confidence, more integrity and purity of motive than the 
 accused. 
 
 I trust that the Court will bear in mind another fact, that the accused 
 is not struggling to keep hold of an office ; he has completed its arduous 
 duties. Day and night he has given his best energies and labors to their 
 prompt performance. But he seeks, by this investigation, to maintain 
 his integrity as a man and an officer, and to show that he stands guiltless 
 of any moral wrong or of any fraud upon his Government. If I felt that 
 he did not so stand ; if I Avere convinced from the testimony that he had 
 failed to meet every issue that touched his honor, I would not hesitate to 
 abandon his cause. Be he a friend never so kind,. I' could not, in that 
 event, conscientiously defend him. No man has the- right, and if I know 
 it, no man shall have the power to cause me to stand up in defence of 
 what I am convinced is crime and wrong. But when I see a friend, in 
 Avhose honor I have learned to confide, hunted down by those who hate 
 him, because of his fidelity to the country when her cause needed the 
 support of every arm, I should not permit any earthly interest to induce 
 me to desert him in the time of misfortune, persecution, and trial. 
 
 I do not, therefore, conceal my anxiety to commend him most warmly 
 to your kindest favor ; to invoke all the presumptions of innocence that 
 the law throws around him; and to ask your earnest and patient attention 
 while I present the nature of his case, and consider the law and the evi- 
 dence bearing upon the several charges upon which he has been arraigned. 
 I address myself first to unfold to you the origin, mainspring, and 
 purpose of this prosecution. In pursuance of its purpose to embarrass the 
 general Government during a time of great peril, and to prevent it from 
 obtaining the men by whose valor and sacrifice we hoped to save our 
 country, the Legislature of Delaware enacted a law during the month of 
 February, 1864, wherein it was provided that the sum of two hundred 
 dollars would be paid by the State towards the commutation and exemp- 
 
tion from military service of each and every drafted white man who 
 should pass the necessary physical examination and be declared fit for 
 the service. The repeal by Congress of what was commonly called the 
 commutation clause of the Enrolment Act effectually defeated the dis- 
 loyal purpose of that State law. Not to be checkmated, however, in its 
 purpose to retain its own friends at home, the Legislature passed two 
 further acts, granting aid to the amount of five hundred dollars, to white 
 persons liable to draft, and to white persons actually drafted, for the pro- 
 curement of substitutes. The preamble to these acts declaring that they 
 are passed " without committing the Legislature or the people of the 
 State to the purposes and objects of the present war, and solely from 
 necessity and to avoid greater suffering to the people of this State whose 
 involuntary service is demanded," will sufficiently indicate their spirit. 
 Under the last of these acts passed during the session of 1865, Messrs. 
 Farson, Waples, and Allen became Commissioners to carry out its pro- 
 visions by drawing warrants or orders upon the State Treasurer whenever 
 they were satisfied that a substitute had been accepted. 
 - At the solicitation of the Commissioners the accused agreed to fill up 
 and sign the papers printed and furnished him by the Commissioners, so 
 that payment might the more readily be made. The accused continued 
 to favor the Commissioners until certain drafted men, being unable to pro- 
 cure substitutes, by reason of the scarcity of the latter, and unwilling to 
 leave their families in want, adopted the following plan : of two men 
 drafted, the first would put in an acceptable substitute, and thereby 
 release himself from draft for the period of one year. Being so released, 
 he in turn became an acceptable substitute. This class of persons the 
 State Commissioners refused to pay and applied to the Legislature, then 
 in session, for such an amendment as would render such payments unlaw- 
 ful. Although composed of their own friends, who were in large majority, 
 it was deemed best, contrary, however, to the views of the present State 
 Executive, not to so amend the law, but to leave it so that payments 
 might still be made in all cases where the substitute was accepted by the 
 Government. On the following day the Executive, without shadow of 
 law or right, but in the face of the action of the Legislature, instructed 
 the Commissioners to withhold payments in such cases The immediate 
 effect, if not the purpose, was to break down the work of substitution 
 then going on vigorously, and to prevent the Government from obtaining 
 men just as they were needed for the final assault upon rebellion. So 
 obstinately did the Commissioners persist in their action ; so offensive 
 became their conduct towards the Board of Ei>rolment, who had under- 
 taken additional labor to favor them, that the Board could no longer 
 consistently co-operate with them. The certificates were then returned 
 with a letter of transmittal, showing that the Board could not honorably 
 issue such certificates when the Commissioners reserved the right to honor 
 or dishonor them as they pleased. Thereupon the Commissioners adopted 
 other rules equally as easy and speedy to ascertain who were entitled to 
 State aid. 
 
 This action of the Board was made the pretext of a complaint against 
 the accused to the Secretary of War. In this letter the facts are shame- 
 fully perverted. So deeply interested are these persons in the business 
 of crushing the accused, that, not content with their own misrepresenta- 
 
tions, they call upon Mr. Riddle — who, as \Ye have heard from the testi" 
 mony, did not "wish to be mixed up with it," — to endorse the letter and 
 them. (Though one of them denied that they ever authorized Mr. Riddle 
 to say anything to the Secretary of War about it.) Mr. Riddle, desiring 
 not "to be mixed up with it," simply forwards the letter, with the remark 
 that the " Commissioners are courteous men, conscientious in the strictest 
 sense of the term, and that, as he had alreadi/ said to Gen. Fry or Col. 
 Jeffries, he thought Col. Baker, the chief detective, might be profitably 
 employed in investigating the afiFairs of this office, if only for a few days." 
 
 Just here permit me to call the attention of the Court to the testimony 
 of the men Avho are "conscientious in the strictest sense of the term." 
 I shall indulge in no harsh words towards them, though their testimony 
 justly exposes them to severe animadversion. All that I desire now to 
 say is, to express the regret that they stand upon the record of this Court 
 as they do. Be 3'our verdict what it may, I would not for any considera- 
 tion have my client change places with them. What they have said here 
 will be a source of regret to them as long as they live ; and as every man 
 values the truthfulness of his neighbor, the unfortunate position in which 
 they have placed themselves will always excite a deep commiseiation. 
 
 So thoroughly did the Commissioners misrepresent the accused and 
 deceive the Secretary, that Col. Browne was ordered to proceed to Wil- 
 mington and investigate the matter. Now what follows ? Col. Browne 
 arrives in Wilmington on Monday, April 10, and in the evening of that 
 da}' calls at the Provost Marshal's office and makes a thorough inspection 
 of the office and records. So accurately, promptly and satisfactorily had 
 the business of the office been conducted, that this was the first inspection 
 that Col. Browne, during a period of nine months of command has felt it 
 his duty to make ; and even now he only goes because he is ordered to go. 
 He expresses himself entirely satisfied, unable to make the slightest sug- 
 gestion of improvement, and takes his leave in the best feeling. He says 
 not one word about the complaints which he carried in his pockets. On 
 the afternoon of the next day, to his utter surprise, the accused is sus- 
 pended from office, placed in arrest, his office and public and private 
 papers seized, and he excluded from the office. 
 
 Most surprising of all things is the fact that Col. Browne could not 
 remember where he issued the order of suspension, or by Avhose hands he 
 sent it. 
 
 Now, gentlemen, what occurred in the meantime to produce this action ? 
 Unfortunately for the accused, and, I think the event will show, unfortu- 
 nately for Col. Browne, the latter threw himself into the arms of leading 
 disloyalists of Delaware, and drank in, during convivial hours and gene- 
 rous but not disinterested hospitalities, the poison and bitterness of four 
 years' accumulation. Upon the testimony of Col. Browne it does not 
 appear that there was one fact or cause, other than his association with 
 these men, upon which it was either just or proper to arrest the accused. 
 The shallow pretense that the accused had arrested one Dr. Cbaytor, was 
 most thoroughly exposed by the accused's answer to Col. Browne's official 
 order concerning his release, that he had not been arrested by the accused 
 and was not in his custody. Another fact which discloses the hollowness 
 of this pretense is, that, according to Col. I'rowne's own testimony, which 
 is not very clear, he met Dr. Chaytor at Mr. Riddle's house, before he 
 
6 
 
 either issued the order of release or even heard Mr. Riddle's ex-parte 
 statement, which did not tell all the facts. This is not consistent with the 
 fact of Dr. Chaytor's arrest. If he was actually in arrest, how came he 
 at Mr. Riddle's'? 
 
 With or without cause, Wilmer was suspended — the deed w^as done ; it 
 could not be undone; it must be sustained. The step was taken; it could 
 not be recalled. One word of inquiry from loyal men — one evening of 
 association with the friends of the Government — one kind note informing the 
 accused that anything needed explanation, would have saved all the trouble, 
 all the heart-burnings, all the bitterness of the last seven wrecks. Two 
 officers, theretofore friendly, just then closing their duties because they 
 had ended in triumph, were in the moment of National joy and universal 
 good feeling, separated by an unseen hand that stabbed at the one and at 
 the same time compromised the fidelity of the other. 
 
 Unconsciously, perhaps, to Col. Browne, he was now obliged to make 
 common cause with disloyal men. Two days after — to wit : on Thurs- 
 day — as Ave have shown by four witnesses, though it has slipped Col. 
 Browne's recollection, (who swears that it was commenced before the 
 arrest) the investigation commences in secret. Wilmer is not there. 
 No friendly voice is there to ask one word of cross-examination. 
 Activity seems to possess the leaders of the opposition ; they make 
 suggestions, hunt up complaints, ascertain names of witnesses, and bring 
 them as a willing offering, that this man may be condemned and ruined 
 ere he knows whereof he is accused. Such are the spirit and animus that 
 now seek to triumph over loyal, true and tried men by the conviction of 
 Edwin Wilmer. 
 
 But I am told there are charges and specifications. Yes, there are; 
 they measure, I think, thirty feet on paper — so formidable that it really 
 seemed when we started a desperate, foolish thing for the accused to meet 
 them. They must surely crush him. To a man who was less conscious 
 than he of the moral rectitude of his conduct and the purity of his mo- 
 tives, they would have been crushing. But in his breast was the unerring, 
 sleepless monitor. Conscience, that did not upbraid or reproach him. 
 
 But, says the Judge Advocate, he signed sundry official papers in blank, 
 which were filled up and uttered by his clerks in his absence, and 
 without his knowledge. Fortunate man is the accused in one respect: 
 that during a public service of two years, he is proven to have had a 
 holiday of but one week. At all other times, and even then, the business 
 went on under his eye and direction. It was an immense business ; night 
 and day, and even Sabbaths of rest, were required by public exigency, and 
 given without stint. You have it in evidence that the business was such 
 that it would have been physically impossible to transact it were the blanks 
 signed as they were actually needed. Says one witness, this division of 
 labor was absolutely necessary to carry on the w^ork. Yes, he did sign 
 them, and committed them to his associates in the Board and to his chief 
 clerk, who have been so faithful to their trust that not one penny was lost 
 to the Government thereby. It is true that he ran the risks and was 
 responsible for them ; but he knew the men, and the result shows that 
 they Avere worthy of confidence. But observe the care that was used : 
 the clerks under the very eye of the Board ; the originals made out for 
 them and copied upon the signed blanks in presence of the Board, under 
 
their direction and Avhilst tlioy were in session. Eut the stress is l;ii(l 
 npon the transportation blanks. Seo how carefully they were pjnarded. 
 Di<l a deputy or special aj^eut call for transportation, even his business 
 was inquired into, and if found not to be public business he was refused. 
 Did an exempted man apply for return transportation, he came directly 
 from the Board, bearing his vouchers in his hand, which entitled him to 
 transportation, and without which he never, so far as the proof goes, 
 obtained it. 
 
 But I do not rest this matter alone upon the praiseworthy care mani- 
 fested by the accused. I take higher gmnnd — I demand to know where 
 is the order or regulation prohibiting similar action. I go further, and 
 insist that there is not a department of this Government, that has been 
 connected with this war, that does not adopt the same practice ; and it is 
 the universal practice. I do not speak of the demands of red-tape, but 
 of the demands that the terrible struggle Avhich has just ended has made 
 upon the time and energy of our Government officers; demands, permit 
 me to say, that men in the quiet walks of life have nobly met without the 
 hope of fame or public acknowledgment. Go to the War Department, 
 and find there thousands of papers signed and used in blank, official sig- 
 natures stereotyped for franking purposes by the thousand. Go to your 
 Quarter master's office, and find there even checks signed in blank and 
 filled up by confi<lential clerks. Go to your Treasury Department, and 
 find there thousands of treasury certificates, each for hundreds of dollars, 
 signed in blank and committed to clerks. I personally know that some 
 of these signatures are stereotyped. Go to your Pension Office, and 
 find there blank pension certificates signed by the Secretary of the 
 Interior and uttered to persons whom he never saw or heard of. Ask 
 your military Provost Marshals in rebel districts Avhether, in the impor- 
 tant matter of issuing passes and requiring the oath of allegiance, they 
 themselves perform the labor, sign and utter passes as required, or whether 
 they sign them in blank and commit them to clerks. If this be a serious 
 charge, go and dismiss three-fourths of the Government officers, but do 
 not make this man the sufferer when universal practice justifies his action. 
 
 I frankly admit, that I could not at times conceal my amusement at 
 the apparent earnestness and seriousness with which the Judge Advocate 
 inquired of the witnesses about this matter. I did not feel quite sure 
 that he had not committed this identical offence while performing his 
 arduous duties. Surely I should not think the less of him had he done 
 so ;. unless I had proof that he was in collusion with some one to use his 
 blanks for improper purposes. I never dreamed that this charge of con- 
 duct unbecoming an officer and a gentleman had such a broad and uncer- 
 tain signification as is now put upon it. It seems to me like a strained 
 construction. 
 
 I submit, however, that it is not the fact of signing and altering that 
 constitutes the offence. It must be shown that it was done for improper 
 purposes ; that the amount of business did not require or justify it ; that 
 it was done to defraud the Government and did defraud the Government ; 
 that injury and damage resulted; and that it was contrary to the order 
 and example of superiors. Suppose, for the snke of illustration, a party 
 obtain possession of a blank exemption paper, would it protect him ? 
 Would it take his name out of the much dreaded wheel ? Would it erase 
 
8 
 
 • 
 his name from the list of those liable to draft ? Would it protect him, if 
 drafted, from arrest and examination and the performance of military 
 service ? I think not. 
 
 The specifications that the accused received a portion of the salaries of 
 clerks, deputies, and special agents may be discussed, 1st. With refer- 
 ence to the charges of conduct unbecoming an officer and a gentleman, 
 and of conduct prejudicial to good order. 2d. With reference to the 
 charge of violating the thirty-ninth article of -war; and 3. With reference 
 to the charge of violating Section -l, Act of March 3, 1853. 
 
 The Court Avill please remember that the specification alleges that the 
 accused well knowing that he had no right to claim, did receive a portion 
 of the salaries; it should have charged also that he did claim anc^ receive; 
 otherwise no offence whatever is charged. 
 
 Under the first named division the specifications allege that well know- 
 ing he had no right to claim any part, the said Wilmer did receive a 
 certain share of the salary paid the clerks and agents. , , 
 
 The very gist and substance of this charge consists in this, not whether 
 the accused did or did not receive gratuitous and voluntary contributions 
 from persons who, from the best motives, sought to assist him, but I. 
 AVhether he did or did not claim a portion of their monthly salary, and 
 2. Whether or not any money received, Avas received in an unlaAvful 
 or fraudulent manner. There are certain facts proved that cannot be 
 doubted, to wit : That he never claimed any part or share at all ; 
 that he never solicited or asked any share ; that what he received was 
 not regularly and at stated intervals given. Indeed the proof by 
 every witness called on the part of the prosecution to these facts is, 
 that the clerks, deputies and agents themselves received every check 
 drawn to their own order for the full amount of salary, less Gov- 
 ernment tax, and that the money Avas, in most instances, drawn by 
 themselves, the exceptions being cases where parties had either borrowed 
 money or been boarding with the accused. There is not one instance 
 where any of these parties (for the Court will remember that I put broad 
 aud searching questions on this point) ever answered that the money was 
 claimed of them, or that it was not a free-will ofi'ering, given when they 
 pleased, Avithheld when they pleased, with the view. and purpose of aiding 
 , a man whose whole business and substance had been sacrificed by reason 
 of his constant devotion to the service of the Government. An effort, 
 you will remember, Avas made to support these charges by testimony that 
 , clerks and agents "paid money to Wilmer that they did not owe him." 
 Suppose they did, is that the testimony upon which the prosecution rests 
 in this cause ? Finding that such proof Avas not sufficient, the further 
 question was asked whether the " clerks and agents considered that their 
 own money " so that they could give it aAvay or otherAvise use it as they 
 pleased ; the object being to sustain the specifications by inference that 
 the money was seized by Wilmer before it became the property of the clerks. 
 The answers of the clerks set that matter at rest— that the money Avas 
 theirs, and they did just Avhat they Avished to do Avith it. 
 ' Now I will frankly admit that "if it could have been shown that the 
 clerks did not act willingly in this matter ; or if the money was received 
 fraudulently ; or if this Avas a regularly imposed tax, demanded, and unwil- 
 ingly paid ; or if it constituted in any Avay the cloak or concealment of a 
 
9 
 
 bribe ; or was induced by the consideration or received with the promise 
 that the clerks' and agents' positions would be any more secure; or that 
 any official favor would be done for them, there would have been some 
 ^rround for this prosecution. But the entire testimony negatives all this. 
 The testimony goes further and shows that some of the very persons wiio 
 did give, were promptly discharged when their services were no longer 
 needed. Thus it will be seen that no obligations Avere either assumed or 
 understood to be assumed. Whatever was given was given voluntarily, 
 and I have no doubt with groat pleasure. The motive for giving was 
 inquired into, and the fact disclosed that in raising troops for the Govern- 
 ment, and serving with them, in giving up all his time to his official 
 duties, his business was wrecked, his property sacrificed, all that he had 
 accumulated was used, and by reason of his losses, those who knew his 
 circumstances best, generously offered to lend a helping hand. Was it 
 wrong in them to give ? Was it wrong in him to accept? 
 
 I am well aware that under many circumstances it would be a dangerous 
 custom to introduce. I trust that I have as high an appreciation as any 
 man, of the dignity and responsibility of office, and desire as earnestly as 
 any one can, to elevate the standard of official propriety and indepen- 
 dence. I am satisfied that unworthy and mercenary men would thrive in 
 office under color of such practices. In the main it would be dangerous, 
 but when a party is sought to be held criminally responsible, it is care- 
 fully to be inquired, as the very essence of the matter, how the gifts were 
 received, and with what motive they were given, and whether or no they 
 were given with the purpose or effect to influence improperly a superior 
 officer's conduct. That is what makes it criminal and unbecoming, or 
 strips it of its guilt and harm. Bring up one man in this court who 
 could say that he gave it as a bribe ; or to retain his office ; or to get 
 favor or kindness, and I will yield my point. Show me wherein the 
 accused, in accepting that which his misfortunes produced by his public 
 services absolutely required, committed any moral wrong, committed any 
 fraud upon the Government, or the clerks or the agents ; show me how in 
 this matter he has forfeited his claims to that high and honorable position 
 which those who have known him intimately for years, have so hand- 
 somely accorded him, and I will consent that you can find him guilty ; 
 but not till then. 
 
 The court will also please observe that the compensation of the clerks and 
 agents during the year 1863, while the office was at Smyrna, was fixed 
 by Capt, Wilmer, and so continued to be fixed until the spring of 1864, 
 after the office was removed to Wilmington. During that time though 
 the check for the total amount of compensation came to the accused, and 
 was by him collected and distributed, no money was ever given to him by 
 any employee ; had any part of the pay been withheld during that period, 
 there would have been just ground for complaint. After the spring of 
 1864, and during the whole period to which this inquiry relates, the com- 
 pensation of each employee was fixed by the Department at Washington, 
 and the checks for pay came to the order of each particular employee. 
 It was after receiving the whole amount of their checks, and during a 
 time when by the removal to the City of Wilmington, and the tremen- 
 dous increase in the cost of the necessaries of life which further embar- 
 rassed the accused subsequent to his losses, that the kind and friendly 
 
10 
 
 offers of personal assistance, originating from their knowledge of tjie 
 accused's circumstances, were so fullj and creditably tendered. 
 
 But the prosecution could not sustain itself by proof. It must make 
 up defects in proof, by abundance of inference ; to make out this case, 
 therefore, an effort was made to show that a larger number of persons was 
 employed in the Delaware office than, compared Avith the Maryland offices, 
 was necessary; in order to lay the ground for the inference that the 
 large number was employed because the accused had an interest in their 
 pay. Now, I submit to this court that such an inference would not be fair, 
 or if allowed to be drawn, cannot form the legal proof necessary to convict 
 this defendant. However tlie issue was made and the proof diverted by the 
 prosecution into this channel. How stand the facts ? The only testimony 
 to prove an affirmative was that of Col. Browne. Never but once was he in 
 Capt. Wilmer's office to know the amount of business done, and that time 
 was the day before Wilmer's suspension. Never once did he, through the 
 nine months of his command, intimate that there was too large a force. 
 He either kncAV the facts or he did not ; if he did not, he was remiss in 
 his duty ; if he did, he either agreed that the clerical and other force was 
 not excessive, or he was culpable in not reducing it at once. It is rather 
 late for him to give such testimony; more especially as he not only had 
 no personal knowledge of the Delaware office, but because, as the testi- 
 mony in this case shows, the force was largely increased by his own 
 order, such was the press of business upon this office whose jurisdiction 
 extended over the entire State : — and not only the clerical force, but the 
 number of deputies and agents who, as he now says for the first time in 
 his life, were too numerous. But the defence did not rest there ; it ad- 
 duced evidence to show clearly as it did by Gen. Jefferies, Col. Foster 
 and other gentlemen, that the labor performed by the Delaware office 
 was greater than that performed in any Maryland district ; that in Del- 
 aware it embraced the subject of colored recruits and musters, while in 
 Maryland all this service which raised more than seven thousand soldiers 
 who Avere credited to the quota of Maryland, and so far relieved the Pro- 
 vost Marshals of that State from the vexatious and most laborious duties 
 of the draft, and enrollment correction, was performed by special agents 
 unconnected "with the Provost Marshal's Bureau. It was further ad- 
 duced that with all the force of the Dehnvare office, there was no time 
 when it was not all employed, and many times Avhen its labors were ex- 
 tended far into the night. Such was the press of business that no office 
 hours could be observed. The Avork Avas done Avithout delay as it came 
 in ; and the fidelity of Provost Marshal and clerks Avas never compen- 
 sated in the shape of extra pay, nor Avas extra pay ever asked ; for they 
 worked gladly and faithfully, content that a struggling country should 
 reap the benefit of their labors, and grateful that they Avere able to do 
 something in her behalf. 
 
 2d. AVith reference to this subject-matter as charged to be in violation 
 of the 39th article of Avar, it is alleged that the accused did convert to his 
 own use and benefit certain moneys received by clerks, Avell knoAving that 
 said money was improperly paid him by said clerks. It seems to me that 
 the specification is uncertain and by no means clear. The 39th article 
 refers to officers convicted of " embezzling or misapplying money Avitli 
 Avhich they may have been enttusted for the payment of men under their 
 
11 
 
 command." It was undoubtedly enacted to meet frauds by disbursing 
 officers. In the iirst ])lace, the accused was in no sense a disbursinj^ 
 officer. In the second place, no moneys were entrusted to him by tiie 
 Government for ])ayment of men under him. In the third i)lace, it is 
 difficult to understand how he could have embezzled money, and used and 
 converted it to his own use, when, as the specification alleges, the money 
 was received by the clerks; and when the same specification alleges that 
 the money w.as first received in full and afterwards paid him by the clerks. 
 Embezzlement, or, in the words of the specification, converting to one's 
 own use and benefit, implies concealment, fraud, withholding money. 
 Now the whole proof in this cause shows no concealment, no fraud; and 
 the very testimony upon which the prosecution rests, shows conclusively 
 that the money was not withheld. The pay of clerks came in checks 
 drawn to their own order, and was conveyed to them in separate checks 
 through the hands of the accused, simply because he was the officer in 
 communication with the Department, and not because he was considered 
 a disbursing officer. If Capt. Wilmer had withheld these checks, and so 
 endorsed them as to collect the money upon them, he would have been 
 guilty of forgery, not of embezzlement. I do not understand how, by 
 any possibility, he could have embezzled the money due on these checks 
 without forging the endorsement. I can readily see how a ([uarter-master, 
 to whom G overnment funds are entrusted for disbursement, could embezzle, 
 but, without proof that funds were put in his hands, how can the accused 
 be convicted of this charge 'i But clear as the law may be, and uncer- 
 tain, contradictory and defective as the specifications may be, we- do not 
 rest solely upon them. The facts are clear. There is no proof that any 
 check was ever withheld, or even that there was delay in delivering them. 
 There is no proof that the accused ever collected one of these checks. 
 There is no proof that he even endorsed any one of them. These were 
 facts capable of proof by the production of the checks now in the hands 
 of the Government ; without such proof no charge of embezzlement or 
 forgery could have been sustain 2d. Why have they not been produced ? 
 Because they show that they were properly endorsed and collected by the 
 several payees who, obtaining the money upon them, owned the whole of 
 it absolutely, to do with it what they pleased. If they chose to throw it 
 away, or to give it away, it was not the right of the Government to com- 
 plain or to question their disposition of it. If, as it appears they did at 
 times, they chose to assist a man whom they loved for his many good 
 qualities and impulses, whom they found in trouble because he unselfishly 
 gave up everything of property, labor and time to the Government ser- 
 vice when the question of its life or death rested upon the personal devo- 
 tion, support and patriotism of every citizen, they had the right so to 
 give it ; and he had the right so to accept it, provided he did not thereby 
 pledge himself to grant official favor to the giver. If it Avas a bribe — 
 Avhich they all deny on oath — then it was wrong, and upon a specification 
 charging it to have been so given, the party must have been convicted, 
 but he could not have been under a charge of embezzlement. If it was 
 given to purchase official favor — which they all deny — then it was wrong, 
 but no conviction could have been had upon a charge of embezzlement. 
 But if it was prompted by a motive such ;^s has been disclosed here, and 
 did not affect the accused improperly, as the witnesses for the prosecution 
 
12 
 
 declare, it was no moral wrong for which t^is party can be held responsible 
 under a charge of embezzlement. 
 
 But the very idea that the money was converted to his own use, though 
 made physically impossible if, as the specification alleges, the money was 
 received by the clerks, is at variance with the proof. Try the severest 
 test upon it : If it be true, it was larceny, in that it appropriated other 
 men's money to his own use. It is this or nothing. But what indictment 
 could be sustained when the very owners of the money come into court 
 swearing that it was theirs, but that they gave it to him of their own free 
 twill and choice ? Such proof destroys the very substance of the offence 
 of larceny or embezzlement. This is matter of clear, sound law, and I 
 submit to the Court that the specification does not cover or relate to the 
 facts. It will not be just or fair to convict upon any forced construc- 
 tions. And I take it that this Court will be very far from convicting, 
 unless they are thoroughly satisfied that both law and facts are clear. 
 
 3d. I come now to the same subject matter with reference to the charge 
 of violating Sec. 4, Act of March 3, 1853; this being the only specifica- 
 tion under this charge : that the accused paid to the clerks and deputies 
 sums less than those provided by law, and for which they had agreed to 
 labor, and did require them to receipt and give vouchers for an amount 
 greater than that actually received by them. The law under which this 
 charge is brought declares " That if any officer who is, or may be hereaf- 
 ter, charged with the payment of any of the appropriations made by this 
 or any other act of Congress, shall pay to any clerk or other employee of 
 the United States a sum less than that provided by law, &;c., he shall be 
 deemed guilty of embezzlement," &c. 
 
 If the Court will carefully examine this law and the relations of the 
 accused to it, they will find, I think, that its provisions do not apply to 
 him. It will see that the accused was not an ofiicer charged with the 
 payment of any appropriations of an act of Congress. He was in no 
 sense a disbursing officer, and no appropriations passed into his hands for 
 distribution. In the second place, the funds to which the charge must 
 relate never came to his hands. In the third place, the sums to be paid 
 were not provided by law, but were regulated by the discretion of the 
 Provost Marshal General, by whom also the appointments were made, 
 and no clerk or other employee was put upon pay-rolls until his appoint- 
 ment had been approved by the Provost Marshal General. But, aside 
 from the law of the cuse, how stand the facts? You will observe that 
 two points are necessary to be proved, in addition to the legal points 
 already named, before a conviction can be had. 1st. That the clerks 
 and deputies received a sum less than that provided by law ; and 
 2d. That the accused required them to receipt and give vouchers for a 
 sum greater than that actually received ; and as a necessary part of the 
 proof, it being a deduction from the law, it must be shown, 8d. That the 
 clerks and deputies were defrauded of the alleged difterence, and that it 
 was retained by the accused without their knowledge and assent ; or, if 
 with their knowledge, that he must have compelled them to receipt for the 
 whole. Again let me say that the proof contradicts all these require- 
 ments. There is not one clerk or deputy who swears that he received less 
 than he was allowed by law, or less than what he agreed to labor for. 
 There is not one who does not say that he received and collected the 
 
13 
 
 whole amount. There is not a shadow of proof that the accused ever 
 required, compelled, asked, soliciteil or persuaded any one of them to sign 
 receipts and give vouchers for more than they actually received. On the 
 contrary, the proof is that the clerks and deputies signed the receipt-rolls 
 not even in tiie presence of the accused, but in the room of the chief 
 clerk, Avithout even the personal knowledge of the accused. Of no wit- 
 ness did the Judge Advocate inquire to prove this point, and here I think 
 the prosecution has signally failed. lie did not dare to risk the direct 
 question whether the accused either conqielled, required or induced them 
 to sign rolls for more than wns allowed. Such was the weakness of his, 
 cause, that, much to my surprise, the subject was not alluded to by him. 
 And yet if it had been a fact, whereof the accused was guilty, the wit- 
 nesses who should have been asked about it were here. They were young 
 men who evidently desired to tell the truth, and this accused would have 
 been willing to stand or fall by their answer. Why was this issue not 
 openly and fairly met? Why were these clerks allowed to go from the 
 stand without being ;^ked this question ? Because, it appearing from 
 their testimony tliat they did receive the whole of their salar}' — not in 
 money through the accused's hands, but in checks to their own order — 
 every one of them would have testified that they were not required to 
 sign any receipts for sums not received, but that for every receipt given 
 the actual amount came to their hand.^. How they chose to spend it is 
 not pertinent to this inquiry. The prosecution failed in its most material 
 point, and failed not because the Judge Advocate forgot what proof was 
 necessary, but because he felt morally sure that their answers would have 
 disproved his case- 
 There is, however, another element in this charge, that is totally dis- 
 proved, to wit: That the clerks or deputies were defrauded, and that an 
 alleged difference was retained without their knowledge or consent. The 
 testimony upon this part has already been alluded to and must be familiar 
 to the Court. 
 
 With regard to the general subject of the present inquiry, I shall only 
 say very frankly that if there is any offence growing out of the gifts of 
 money, proven in this case, it should have been charged under a specifi- 
 cation alleging improper conduct for accepting presents. No such 
 specification has been preferred and there is no issue of that kind to 
 meet. The offence of the accused has this extent — no more. It was 
 and is not a case where there was either fraud or moral wrong or guilt. 
 I am satisfied that with this accused it was an error of judgment which 
 placed him in a position where he might be charged with acting under 
 improper influences. Luckily for him, upon this trial, the witnesses all 
 live to give concurrent and satisfactory evidence that neither his integrity 
 nor his impartiality, his official or personal conduct was ever affected in 
 an improper manner. The evidence is clear as day that no moral guilt 
 was involved ; and while pressed by pecuniary troubles he may have been 
 under the necessity of receiving what was cheerfully and spontaneously 
 given, he yet stands unimpcached in the purity of his conduct or in the 
 motives that have impelled the great and varied service he has done the 
 country. 
 
 I shall not criticize the propriety and taste of calling young Wilmer to 
 give testimony to convict his father. He was called for the purpose of prov- 
 
14 
 
 ing that he was appointed clerk in order that the accused might take the 
 benefit of his salary. It however appears by the testimony that the lad 
 received the whole of it for his own use, except during the first two 
 months when he rendered good service without compensation. He was 
 not put upon pay rolls until August, and was the first discharged when 
 the force was reduced. The attempt was then made to show his unfitness 
 for a clerkship by reason of his age, which must have recoiled with telling 
 force, when it was adduced that the gallant boy had served as volunteer 
 aid without pay, upon the staff of General Smythe, had borne himself 
 bravely through all the brilliant closing battles of the war; had attended 
 his chief when wounded and until his death ; and had taken the last 
 message of the dying hero to his stricken family, 
 
 I now call the attention of the Court to the specifications alleging that 
 the accused recommended the applications of certain substitute brokers, 
 and did accept, as a reward or compensation for his services so rendered 
 the substitute agents, large sums of money, as the same relate to two 
 charges, to wit : conduct unbecoming an oflScl^r, and conduct preju- 
 dicial to good order. The Court will observe, at once, that it is no 
 off"ence that he simply recommended them, because it is in evidence that 
 he was required by Colonel Browne either to approve or disapprove them. 
 The offence is embraced in the allegation that he performed this service 
 for pay and bribe. Of all the applicants, ten gave a present under cir- 
 cumstances that I will explain, and twenty gave nothing at all. 
 
 Those who gave were Sipple, Reynolds, Keller, Deakyne, Carrow, 
 Lofland, "VVeldon, Cross, Parkhurst, and Bacon — ten. Of those who did 
 not, were ^IcLaughlin, Joseph, Hall, McNeal, Aj^delott, Richards, Bush, 
 Rickards, Knowles, Rash, Kersey, Pearson, Willis, McCarty, Enos, 
 Swiggett, Legg, Gerty, Wingate, and Poulson — twenty. 
 
 Certain persons were called to show that they were not recommended 
 with the view of allowing the Court to infer that recommendation was 
 refused because they paid no money. These cases were the following : 
 Aloses Rash, who, though recommended by many prominent citizens of 
 Delaware, including the lamented Cannon, then Governor, whose name 
 was a tower of strength, failed because a difficulty was pending before 
 Captain Wilmer, to Avhom the matter had been referred by Colonel 
 Browne, in which it appears that Rash, Kersey, Knowles, and others, 
 were concerned as partners. Rash claimed that Kersey held certain 
 moneys belonging to him, but failing to prove the fact, the decision of 
 Wilmer was against him. Rash denies that Wilmer gave any decision; 
 but this is fully proved by the testimony of Kersey and Silver, who 
 were both present at the hearing dnd heard the decision announced. 
 Rash nevertheless admits that the reason why his application was not 
 approved was, that the difficulty was still pending, and, in fact, has 
 never yet been settled. The Court will, therefore, see that in this 
 case the accused acted upon good and sufficient reasons. The next case 
 of refusal to approve was that of Kersey, for the very same reason, 
 he having been a party implicated in the unsettled controversy. The 
 third case was that of Wingate, whose application was approved and 
 forwarded, but returned by Colonel Browne with the reason that he had 
 concluded to make no further appointments of substitute brokers for 
 Delaware. The fourth and last case was that of Willis, who applied 
 
15 
 
 (liroctlv to Colonel Browne. The appliciition was i-efcrrcil to the ao(Mi<-cil, 
 who returned it not because he wms not p-iid to approve, Itut because 
 Willis was then under bonds to appear at C(»urt to be tried for felony on 
 a charn;e of having picke<l the pocket of a drafted man. Unfortunately 
 the Judge Advocate called in question his guilt or innocence, and it now 
 appears upon the record that Willis had been brought before the Mayor, 
 required to enter into recognizance to answer the charge in court, and 
 subse(iuently bought off the prosecutor by paying him back the money 
 borrowed. It was not right that such a man should be a substitute 
 •broker. • 
 
 Of the other persons who were recommended, Messrs. McLoughlin, 
 Enos, Joseph, McNeal, Aydelotte, Eichards, Bush, Richards and the 
 others named, gave nothing at all. Yet if the Court will look at the en- 
 dorsements of the accused, upon their applications, it will be found that the 
 identical words are used with respect to them as with respect to all others, 
 to wit: "Respectfully forwarded with my approval." No more than that 
 in any case. Had there been a money interest to obtain license, dependent 
 upon success, or had the accused been rewarded for his services in forward- 
 ing the application, I take it that the endorsements on behalf of those 
 with whom he might have been in collusion, would have contained a re- 
 commendation that would have insured success. As it was, and as the 
 proof in this case shows, there was no motive, no promise of pay, no hope or 
 expectation of reward, that affected the mind of this accused more favor- 
 ably towards one than towards another. If it had been so, the proof of 
 guilt would have been in the endorsements. But they are now the strongest 
 and safest evidence of his innocence. 
 
 Of those who, knowing his pecuniary circumstances, generously offered 
 to assist him, not one declares that he ever asked them or charged them 
 a dollar for his approval ; on the contrary he frequently said to them upon 
 tender of money, that he made no charge and would not consent to re- 
 ceive anything in that way. Not one declares that money was even 
 hinted at until the applications had been approved. Now this charge was 
 capable of direct proof, and might have been either proved or disproved 
 by the Judge Advocate, if he had asked the witnesses the simple and 
 direct question, '-Did you pay to Capt. Wilraer, at any time, any money 
 whatever as a reward or compensation for recommending your applica- 
 tion ? " By the answer to that, this accused would have been content to 
 stand or fall. But the prosecution seemed to have no confidence in the 
 very pith of the charge. Upon cross-examination I directly sought to 
 know of the witnesses "whether they ever paid the accused any money 
 for recommending their applications, or for any official favor done or to 
 be done by him ?" It was a question full of risk, upon the answers to 
 whic|i our entire case turned. It was a bold inquiry to make of witnesses. 
 I confess that I awaited their answer with some apprehension, not know- 
 ing whether their answers would or would not convict the accused in a 
 way that contradiction and impeachment could not have avoided. It is 
 not often that an accused, knowing the failure of the prosecution to prove 
 material facts, is willing upon cross-examination of an adverse witness to 
 bring him face to face with the question of guilt or innocence ; to ask him 
 directly, Did you or did you not employ, bribe, compensate, reward or 
 promise to reward the accused to do a certain thing ? I rejoice that upon 
 
16 
 
 this the severest test of a client's cau^e, involving not only the charge 
 preferred, but the question of his integrity, my confidence in him was 
 fully vindicated and maintained. How thrilling and delightful is one's 
 joy, when the trusted friend of years passes unharmed and unirapeached 
 through the trial that threatens to overwhelm him ! It kindles a new 
 and deeper regard, unknown in the years that have past, but to be un- 
 forgotten in all the years that are to come. 
 
 I proceed now to discuss the specifications alleging refusal of certifi- 
 cates of exemption, under the two charges of conduct unbecoming an offi- 
 cer, and of conduct prejudicial to good order. 
 
 I beo" the Court first of all to bear in mind the distinction between the 
 Government certificates of exemption, and those unofficial certificates 
 which were kindly, and in addition to the official business of the accused, 
 given to the State Commissioners. The State Commissioners do not tes- 
 tify that they know any case where the Government certificate was 
 refused, but simply told, notwithstanding my objection, what they had 
 heard from the brokers. This story they adroitly repeated to the Secre- 
 tary of War, in the complaint forwarded by Mr. Riddle, who did not wish 
 to be "mixed up with it." Even had they testified to any instance of 
 their own knowledge, I do not know what amount of credit the Court 
 was prepared to attach to it. The Commissioners with whom this prose- 
 cution began, under the direction of others who did not " wish to be mixed 
 up with it," and who have come here to swear the case through, have, 
 unfortunately for the prosecution, not made a very favorable impression. 
 I will put it that way, because it is charity to avoid remarking upon their 
 testimony as it deserves. But I wish to assail no man, more especially 
 those whose years have some claims upon my silence. But by his own 
 testimony, manner, appearance, frankness, consistency, and loyalty, let 
 each witness be upheld or condemned. I have no disposition to comment 
 harshly; the court will weigh each word, and credit just what they deem 
 true. 
 
 And yet with an adroitness worthy of a better cause, and Avith an as- 
 sumed loyalty and friendship for the Government, and a desire to protect 
 its interests and obtain men for its armies heretofore unknown to the 
 people of Delaware, they charge this accused with doing the very thing 
 they themselves were doing, under a law passed for the very purpose, to 
 wit : " to produce a want of confidence in the authorities, and to deter '' 
 the furnishing of men for carrying on the war. Aye ! they turn state's 
 evidence as the most guilty always do, and doubtless they think in their 
 easy sinecures, that they are to be sustained by the result of this trial. 
 They fancy that they are the special friends, pets and detectives of the 
 Government, and come here in this trial and upon the witness stand for 
 the first time during the whole rebellion proclaim their loyalty. 
 
 There is another fact concerning this charge to which I call the attention 
 of the Court. By the 99th Article of the regulations for the government of 
 the Provost Marshal General's bureau, it is provided that "the Board shall 
 give the person who has furnished the substitute a certificate of exemption. 
 Form 30|^." These certificates are signed by every member of the Board, 
 and issued by them while in session! It is neither made the duty of the 
 Provost Marshal to furnish or issue them, nor has he the right or the power 
 to compel the other members of the Board to sign or issue them. Indeed. 
 
17 ! 
 
 so powerless is he in this respect, that they may overrule him entirely. 
 Tims it Aviil be seen that he cannot be held responsible for any alleged 
 refusal, unless it can be shown that he withheld a certificate contrary to 
 the action of the Board. To illustrate this matter, permit me to cite the 
 case of an election inspector indicted for refusing to receive a legal vote. 
 Though the proof may be clear as to the refusal, it may be shown that 
 his opinion was overruled by the two election judges who sat with him, 
 and that consequcntl}'' he could not have taken the vote without violating 
 his oath and his duty. Now the case is precisely analogous to the case in 
 hand. If the Commissioners and the Surgeon of the Board decided in 
 open session, for reasons satisfactory to themselves, to withhold certifi- 
 cates, that action bound the Provost Marshal, and he would have been 
 guilty of a serious offence had he violated it. 
 
 Now the proof shows, that subsequently to the trouble with the State 
 Commissioners, and until the order from Col. Browne to alter the certificates, 
 the Board continued to issue the certificates of exemption. When the order 
 to alter came, it was considered in the Board, and finally determined to 
 await the new blanks that Col. Browne promised should be sent at once. 
 This was April 1, 18G5. The grounds of this action were manifest. 1st. 
 The erasures and interlineations could not be made intelligibly and without 
 disfiguring the papers. 2d. So particular were many principals respect- 
 ing the new certificate, and so much ideal importance did they attach to 
 its being all right, that the interlined papers gave great dissatisfaction, 
 3d. Because the new blanks were daily expected; and 4th. Because the 
 names of the principal being stricken from the list of those liable to draft, 
 he was just as much exempt and free from harm as if he held the papers ; 
 consequently no damage could possibly result to him. Besides, care was 
 taken to note the post-office address of every man entitled to exemption 
 papers. These considerations induced the Board not to stop the business 
 of substitution because they had not received the legal exemption papers, 
 but rather to take the men and await the papers ; and I submit that it was 
 a sensible and praiseworthy decision. From April 1st to April 8th (Sat- 
 urday) no new blanks came. None came on Sunday, 9th; none on Mon- 
 day, 10th, which was a general holiday, by reason of the surrender of Lee ; 
 and none came on the 11th, on which day the accused was suspended and 
 arrested. Whether they came afterwards or not, we have no proof. We 
 only know that as soon as Capt. Blunt agreed to "run the machine" ac- 
 cording to the suggestions of the men whom the witnesses call the "Rebel 
 Commissioners," "order reigned in Warsaw." Had Wilmer so yielded to 
 their improper demands, and joined them in the purpose to break down 
 substitution, and in their efforts to nullify the State law, he might have 
 retained their friendship, but he would have forfeited the respect and con- 
 fidence of every loyal man in Delaware. 
 
 Out of all the men for whom substitutes were accepted, amounting in 
 the aggregate to hundreds and even to several thousands, three cases have 
 been brought here, upon which a conviction is asked. The first is that of 
 James H. Lowe, respecting which no testimony has been offered. The 
 second is that of Joshua Jester and Geo. F. Webb, which may be consi- 
 dered together. These men, it seems, entrusted the business of putting in 
 substitutes to Joseph S. Truitt, who is not otherwise known in this case. 
 They do iwt prove that they put in substitutes. They do not pretend to 
 
18 
 
 say that they were entitled to certificate!. One of them, Jester, swears 
 that he did not see Capt. Wilmer, and that Geo. F. Webb was with him 
 all the time. Webb swears that they were not together all the time, but 
 that he went with Lofland to a person who they said was Wilmer, though 
 he did not know him, had never seen him before, and that all the refusal 
 he got Avas what Lofland told him. Now Isaac Lofland was here a wit- 
 ness for the prosecution, and if Wilmer did refuse to give him the certifi- 
 cates for Webb or Jester, he could have proved it. But the prosecution 
 did not attempt to show this by him. It is a fair presumption that they 
 could not. At any rate they did not ; and so far they have failed even 
 to connect Wilmer with it. 
 
 Satisfied that this was not sufficient proof, some evil disposed person 
 prompts Mr. Riley, a Government detective, to demand the papers, and, 
 if possible, to make a case against the accused. He demands the papers, 
 although he w^ell knows that Wilmer had no right to give them to him. 
 The question arises with Wilmer, Who is this who so offensively presumes 
 to dictate how I shall conduct my official business ? and so he inquires. 
 Then the authority to "inspect" the office was produced. "I respect 
 your authority, sir, to examine this office and all its aff^airs, but you have 
 no right to dictate to me how I shall perform my duty." Riley says that 
 he showed this authority before he demanded the papers. It makes no 
 diff"erence, as to his right to demand them, when he showed it ; rather, 
 perhaps, if he did show it then, it was conclusive evidence that he had no 
 right to demand them. But, with regard to this, he is flatly contradicted 
 by Biddle, the Commissioner, Fisher, the Surgeon, and Cummins," the 
 chief clerk, all of whom happened to be present. His testimony is there- 
 fore worthless, and this effort to make a case recoils upon its originators. 
 And yet these are the facts upon which you are asked to convict the man 
 ■who is proved to have been so faithful and constant in his labors for the 
 Government. 
 
 There is another matter, which I scarcely think can be seriously enter- 
 tained : the refusal to muster volunteers, alleged to have been conduct 
 unbecoming an officer, and conduct prejudicial to good order. There are 
 four cases to which the proof is directed. 1st. Respecting to parties al- 
 leged to have been presented by Mayor Maris. The testimony of the 
 Mayor is, that the time of Capt. Crossly, who had special authority to 
 enlist, having expired, he called upon the accused, not to ask him to muster 
 men, because, as the accused explained, he could not muster and assign to 
 particular regiments, the 8tli Delaware, for instance, in which the volun- 
 teers wished to go, but that he must send the men mustered by him under 
 guard, the same as substitutes, to Camp Distribution, Baltimore, there to 
 be assigned to such regiment as the commandant of that camp might 
 select. The accused well knew that the immediate effect of any such 
 muster would be to destroy every effort for obtaining volunteers, because 
 no volunteer would consent, or ought to consent, to be so dealt with. Yet 
 the accused was powerless as to liis orders. Mayor Maris did not and 
 could not consistently ask the accused to muster volunteers under these 
 circumstances. He therefore went to Washington, to have such action 
 taken as would avoid the difficulty. He makes some allusion, in his sub- 
 sequent testimony, to seventeen men that, as he heard, the first ward was 
 ready to enlist on the day before; but he also swears that these men were 
 
never presented to Capt. Wilmcr to his knowledge, nor is there any testi- 
 mony to siiow that they were. The truth is that they never were pre- 
 sented, nor did any knoviied^e of" the fact ever come to Capt. Wilmer; 
 and undoubtedly the Mayor did not and could not have asked Wilun.'r to 
 muster them, because he knew well the limit of the authority possessed by 
 the accused. Mayor Ma lis never called upon the accused to muster a 
 single man ; nor, by his own testimony, dd he ever present a man for 
 muster, nor did the accused ever refuse to perform this service fOr him. 
 As to the matter of enlistments, which is hardly pertinent to the inquiry, 
 the Mayor states that while he was in the office, which was duriuf;; a peiiod 
 of three-fourths of an hour, the accused examined and enlisted three per- 
 sons, all that were presented to his knowledge ; and that on the day to 
 which the testimony relates, the whole force of the office was unusually 
 busy in examining drafted men from distant parts of the State, who had 
 reported that day, pursuant to order, and who were anxious to return to 
 their homes by the Saturday evening train. The proof goes further, apd 
 shows that Capt. Blunt, who was the only officer in the State with autho- 
 rity to muster and assign to certain regiments, positively refused to muster 
 upon Capt. Wilmer's enlistment papers, and yet persisted in stating that, 
 though he had an examining surgeon. Dr. Draper, he had not the right to 
 enlist. And yet, as the proof and the facts are, Capt. Wilmer did enlist 
 all who were presented, and sent them up to Capt. Blunt for muster and 
 assignment. 
 
 2d. Tiie next case which it is alleged the accused refused to muster was 
 that of William Henderson. He had never been examined by the Sur- 
 geon, upon whose examination alone the accused could rely, to wit, Dr, 
 Fisher, of the Board ; nor was he ever brought before Capt. Wilmer for 
 muster, or even inside of his office, as Mr. Glatts, the only witness to this 
 point, testifies. Besides, the enlistment paper made out by Surgeon 
 Draper, with whom the accused had no right to be officially connected, 
 show — for they are in evidence — that the volunteer desired to enlist for 
 the 8th Delaware Volunteers, where the accused had no right to place or 
 assign him. Had he sent for the boy, and mustered him, he would have 
 been a party with Glatts in deceiving the lad, because Glatts well knew, 
 as did all the persons on the committees, Avhat was the extent of the ac- 
 cused's authoiity; and this was the first day, this April 8, that they had 
 ever asked Wilmer to muster, because they knew that only Capt. Blunt 
 could muster for the 8th Delaware Volunteers. 
 
 3d. The next case is that of Barr, the lad who Avas brought to Dr. 
 Fisher for examination, and by him rejected on account of his age, being 
 only seventeen, and of want of muscular development. Bear in mind that 
 the anxiety of the several wards, as well as the pecuniary interest of the 
 several recruiting agents, caused them to present persons who were boys, 
 and apparently unfit ; the chief object being, not to furnish a hardy sol- 
 dier, but to get one more credit to the quota. When Dr. Fisher rejected 
 the boy, that ought to have been the end of it ; but, in Dr. Fisher's absence 
 from the office, the boy was taken to Dr. Draper, who had no right to exam- 
 ine for the accused. When the boy was again brought to Wilmer, the ques- 
 tion was which of the Doctors he should rely upon, his own surgeon or a 
 stranger. He relied, as he ought to have done, upon his own surgeon, or 
 rather he laid the case over until Monday, when Dr. Fisher would return, 
 
i6 
 
 directing meantime that the boy shoul(f obtain the consent of his parents. 
 The boy did not return on Monday, nor did the Surgeon of the Board 
 ever recede from his opinion that the boy ■was not physically competent to 
 be a soldier. That is the whole of the case. 
 
 4th. The last case was that of the lad Burke, brought forward by Mr. 
 Christy, examined and passed by Dr. Fisher, and enlisted. When called 
 upon to. muster him, the accused explained to Christy and the boy what 
 were his orders and authority to muster and assign. The boy at once, as 
 ife proved by several witnesses who were present, insisted that he had 
 been deceived, and protested his unwillingness to volunteer in that way. 
 Whereupon the accused said "that he would not stand such deception; 
 that he had never mustered a man under deception, and never would." 
 In that he was right; had he done otherwise he would have been criminal. 
 He thereupon destroyed the enlistment paper, not the muster roll, for the 
 boy had not been mustered. 
 
 These are the four cases, and the only cases out of an aggregate of four 
 thousand nine hundred volunteers and substitutes mustered by the accused, 
 besides one thousand who were examined and held to service, but whose 
 commutation was paid by the State, through its Commissioners, in order 
 that the Government should be cheated out of the men, and besides many 
 drafted men who were examined and exempted — these are the only four 
 cases that, after thorough search from one end of the State to the other, 
 Avith the aid of every disloyalist in Delaware, Avho was on the accused's 
 track and determined to destroy him, that could be found to base this charge 
 upon. I leave it to the Court to say whether the accused has not acted 
 with becoming fidelity and correctness. 
 
 The charge means that the accused was endeavoring to prevent the 
 Government from getting men, or it means nothing. Take the testimony 
 for the defence, and see how he raised, drilled and took to the field, during 
 the invasion of 1863, a whole regiment, to the utter destruction of his 
 business ; see how, in the summer of 1864, during the second invasion, 
 he rode all over the &tate of Delaware, and even into Maryland, to raise 
 troops, to preserve the only line of communication between Washington 
 and the cities of the North and East ; see how, at the same time, he raised 
 thousands of dollars to pay their losses incun-ed while away from home ; 
 see how he co-operated with all committees to push on volunteers ; see 
 how he worked — night, day and Sunday — to put in men, until his strength 
 sank under the burden of his unrequited and patriotic labors. Is this 
 the man you charge with refusing to muster volunteers? Is this the man 
 who is to be convicted upon the representations of the " rebel commis- 
 sioners," who now appear to be, par excellence, loyal men ? Where were 
 they when the nation struggled for her life in the death-grapple with 
 slavery and rebellion? Where were they when she appealed with touch- 
 ing earnestness for the help of every arm ? AVhere were they when the 
 Government needed men 'i Pavino; commutations to prevent her from 
 getting them. Where w-ere they when on the bloody field, standing 
 between "our loved homes and the war's desolation," the soldiers were 
 bleeding and dying ? Legislating against bounties, and relief to volun- 
 teers' families, refusing thanks to the gallant living or sympathy for the 
 martyred dead, and Avithholding the small pittance of $425 to give a 
 resting place to those who "foremost fighting, fell" for the sacred cause. 
 
There they were, safe in their homes, p;iyin;c taxes with a uroai), cfloatinpj 
 over Union defeats, huirrhiiijL' at our cahiinitit'S, jfcrin^^ at our reverses, 
 toiling with all the might of inHiience and language, and apathy, and 
 weight of character, and hallot and Southern synii)atliy for our country's 
 overthrow. There they were working to sustain in i)elawnre that hated 
 slavery that is the cause of all our woe ; wliile this man whom they seek 
 to ruin was racking brain, and straining nerve, and exhausting substance, 
 and spending night and day, and manly energy, to save his country, 
 content that everything might go if he could but help to deliver the 
 nation. Now that the victory is won, and conquei'ed peace canies tiie 
 proud standard of the free to ever}'- nook and corner of the land, and 
 fraternal feeling, and joy, and happiness, seem to return, with God's 
 blessing, on the land, he is to be sacrificed who bore the burden in the 
 heat of the day ! 
 
 The allegation that the accused "did give aid and encouragement to a 
 riotous assembly of persons, who were convened for the purpose of com- 
 pelling certain Commissioners of the State of Delaware to accede to the 
 demands and to obey the directions of the said riotous assembly, the said 
 Wilmer being present, and participating in, and a party to, the said riotous 
 proceedings," may be considered with reference to both the charges already 
 named. It appears, by the evidence, that the State Commissioners, during 
 the whole time that they were officers, never exhibited an American flag. 
 Upon receiving the news of the surrender of General Lee, there were 
 numerous parties in the city of Wilmington — among them the Commi'^- 
 sioners named — who, although strong peace men, could not find it in their 
 hearts to rejoice over Lee's surrender and the prospect of peace. They 
 had not anticipated that kin<l of peace which resulted in the discomfiture 
 of the rebellion. The peace they expected and hoped for was to end the 
 war by establishing a Southern Confederacy, So that, when Lee surren- 
 dered to Gonl. Grant and the nation's soldiers, they did not deem it an 
 occasion to express their jny and to show the colors. It appears that a 
 good-natured crowd of men and boys diff"ered with the Commissioners, 
 and waited upon them, saying to Mr. Waples : " Halloo, old fellow, put 
 out your flag !" Ah ! "then and there was liurrying to and fro !" One 
 went to the officer in charge of the district, and inquired whether he had 
 issued such an order. So determined were they, that nothing but visions 
 of forts and bastiles could compel thcni to be patriotic. For, verily, was 
 it not a day of mourning for them '{ Had not one of them said that " he 
 did not want to live unless the Southern Confederacy was recognized?" 
 Another hurries off to get a flag; and when it is brought, they still desire 
 to conceal it from the public gaze by putting it out the side window. 
 The crowd desire it in front of the house; and when so raised, it is hailed 
 with cheer after cheer, making the welkin ring with the joy of national 
 triumph. Then they went away, having hurt no one, having injured no 
 property — so the Commissioners testify ; but whether this Court believes 
 it, I cannot say. Mr. Waples did not see the accused; he had just 
 left him two squares above. Mr. Farson did not see him. Mr. Christy 
 and Mr. Wmgate, })olice officers of Wilmington, following the crowd that 
 no damage might be done, did not see him. After the crowd left the 
 Commissioners' office;, the policemen followed no further, not thinking it 
 necessary, as they said that " the crowd was good-natured, and meant noth- 
 
22 
 
 ing but to make copperheads show the tTnion flag." Why need they be 
 made to do this? This was the great riot, rivaling in extent and danger 
 the copperhead riots of New York. So terrible was this riot and its con- 
 sequences, so many persons were killed and injured, so many disloyalists 
 hoisted the Union flag for the first time, that the Grand Jury of the County 
 and the Criminal Court, that have been in session since, have not deemed 
 it of sufficient importance even to consider it. 
 
 But must this charge fail, because AVilmer was not seen ? So ask the 
 Commissioners. No ; for one eye sees all, and one ear — a hundred feet 
 from Wilmer,^ — hears his quiet conversation above all the din of this 
 terrible riot. John H.Moore, standing alongside the crowd, with the noise 
 of their cheers and jubilant shouts ringing in his ears, and, perhaps, 
 piercing his heart, forgets the crowd, does not hear the noise, but is bent, 
 not upon the riot, but upon finding out whether Wilmer took part. Wil- 
 mer hearing the cheers under his window, and supposing that some pro- 
 cession was passing, stepped upon the balcony connecting with his office, 
 and catching sight of one of the Commissioners making haste to be loyal, 
 was convulsed with laughter. So capital was the joke that he no doubt 
 bowed recognition to some friend under his window. Yet Mr. Moore, on 
 the pavement, one hundred feet off", in the midst of the crowd, hears all 
 that is said, regardless of the crowd. Now, does this Court believe it; 
 more especially, when he swears that he has supported the Government 
 in its efforts to suppress the rebellion ; that unqualifiedly, without reserve 
 and in every respect he has done his duty as a loyal citizen ; that he has 
 always been in favor of suppressing the rebellion ; that his sympathies 
 have always been in favor of the Union ; and that he never was in favor 
 of a dissolution, compared with the testimony of military officers and of 
 leading citizens, who say that he iuis been arrested several times for dis- 
 loyalty, and that his general reputation for loyalty is very bad. 
 
 The fact is, that the accused was with a number of the best citizens of 
 Wilmington quietly looking on from a distance, taking no part, but 
 regarding the thing as a harmless, boyish eff'ort to cause suspected parties 
 to raise the flag. Not even the police, who, as we have seen from the 
 testimony, were present, interfered, and so ordinary was the whole matter, 
 that but for this' case it would long since have been forgotten. I can 
 hardly believe that the Judge Advocate will press this ridiculous charge. 
 
 It is next alleged that the accused did procure, through S. C. Bush and 
 others, a large number of persons as substitutes for persons drafted and 
 liable, for which substitutes large sums of money were paid by their prin- 
 cipals to this accused and the brokers. This is charged to be conduct 
 unbecoming an officer, conduct prejudicial to good order, and in violation 
 of Section "23 of the Act of February 24, 18t)4. 
 
 The proof intended to sustain these charges relates to four cases, to 
 wit : 1. The substitutes put in for Mr. Appleton, in August, 1864. With 
 regard to this the testimony is very clear that, as Mr, Appleton shows, 
 the entire arrangement was made with Bush, with whom at that time were 
 Willis and McO.irt}' as partners. Mr. Appleton, who as the Court may 
 remember, is a very gentlemanly person, and who was here notwithstand- 
 ing the prediction of the Judge Advocate, that he would not be, knew 
 none of the brokers, and feeling, perhaps, a little shy of them, left two 
 checks for one thousand dollars each in the hands of his particular friend, 
 
23 I 
 
 Captain "Wilmer, whom lie had known fur ycai's. There ])vu)^ no sub>ti- 
 tutes present at that tinie, and Mr. A]ipleton beinfr obliged to take the 
 evening; train home, left the cheeks in AVilmer's hands to hv handed (jver 
 when the substitutes were paid. Mr. Appleton states distinctly, that 
 during the afternoon while he was present, a substitute was obtained and 
 ])ut in, one of the checks was lifted and handed to Bush who swears that 
 he received the whole amount upon it and that Wilmer was not in the 
 slightest degree interested in the matter or a party to the contract. Mr. 
 A{.'plet()n also testifies, that subsi'tjuently the other substitute was )»ut in 
 and the second check was passed over to ]3ush, who received the whole of 
 it, and who swears that "Wilmer was in no way interested in that transac- 
 tion, that he was not in any way a party to the contract; and that no 
 understanding was ever had between him and the accused regarding any 
 such interest. All that Wiimer did was a nnitter of kindne.ss, in which 
 his action has been shown to be above reproach or question. Mr. Apple- 
 ton's testimony settles the whole matter. 
 
 2. The next case was that of Peter "\V. Dornian. Here, as Bush 
 swears, all the arrangements were made with Mr. Reynolds, who was 
 then in partnership with him, and by agreement between Reynolds and 
 Dorman, the sum of two hundred and fifty dollars was left in the hands 
 of the accused to be handed over when the aftair was settled. This with 
 the five liundred dollars furnished by the State, was to make the price of 
 the substitute seven hundred and fifty dollars, which was the amount 
 agreed upon. When the money was deposited with him he put it in an 
 envelope and endorsed it "two hundred and fifty dollars, belonging to 
 Peter W. Dorman, to be paid to Reynolds whert he shall put in a substi- 
 tute for said Dorman," and lodged it in its proper place. Bush then 
 advanced the five hundred dollars which would afterwai ds be paid by the 
 State, and owing to subsequent transactions between the purtnei's, a dis- 
 pute arose between them as to whether the money left in Wilmer's hands 
 belonged to Bush or to the entire firm. Unable to settle the matter 
 among themselves, it was finally concluded to state a case and submit it to 
 Wilmer's decision. This was done ; the parties were heard ; the decision 
 was given ; the money han<led over and divided among the partners then 
 and there ; each partner who has been upon the stand acknowledging the 
 receipt of his full share. All the parties declare that this was Wilmer's 
 only connection with the transaction, and that he was in no wa}' in- 
 terested in the matter. 
 
 3. The next case is that of a substitute named Devlin, who, it appears, 
 had been mustered in and sent, with the five hundred dollars due him, to 
 Camp Bradford. Subsequently upon the application of Devlin's wife, and 
 for reasons not known to me or in this inquiry, but satisfactory to Colonel 
 Washburn, commandant of that camp, the Colonel, under his authority 
 for that purpose, ordered that if another man could be substituted for 
 Devlin, Devlin would be released. Bush had put in the man Devlin, and 
 learning the circumstances of his case, geneiously ofl'ered to get another 
 man to represent him at the same |)riee, five hundred dollars. This was 
 December 8, ISG-i. At this time Bush had no partners. lie procured 
 another and made the following memorandum : " Dec 10, 18G-1. Thomas 
 L. Rawlins, Nanticoke Hundred, Sussex County, Delaware ; Thomas 
 King, substitute in lieu of John Devlin, who fur sufficient reasons, is dis- 
 
charged." The further testimony is, lliat the five hundred dollars in the 
 hands of the officer at Caitip Bradford came back to Bush to repay him 
 for the cost of procuring King. No money passed through the hands of 
 the accused, nor had he any interest in the matter. 
 
 The Court will also remember — and I mention it simply to clear up the 
 point — that AVilliam Graves, who does not stand before you in a favorable 
 light, endeavored to make the impression that he had paid to the accused 
 some sixty odd dollars ; upon his cross-examination it turned out that this 
 was his share of money due his partner Bush for putting in a substitute 
 in lieu of one who had proved to bo a deserter. Bush proves that he 
 received the amount, $68.50, and his receipt in full for it is in evidence 
 before you. Col. Browne had ordered that these partners be compelled 
 to put in a new substitute, and Bush having promptly obeyed, the other 
 partners were directed to contribute their share of the cost. 
 
 4, The next case is that of a substitute for William A. Atkinson. This 
 was a transaction perfectly honorable with Mr. Cummins, which, accord- 
 ing to the proof, Wilmer Avas never connected with or had any know- 
 ledge of. 
 
 Somethino; further was intimated about recommendinf^ some firm to fill 
 a contract of thirty-one substitutes, but as no evidence was given to con- 
 nect Wilmer with even the recommendation of them, I forbear to speak of 
 it further. 
 
 Now this is the whole of the charge concerning interest in procuring 
 substftutes. How clearly the accused has been able to explain it, the 
 Court will judge. I feel that even the Judge Advocate must have been 
 thoroughly satisfied. The''facts do honor to the kindness and fairness of 
 the accused. Had the same spirit actuated the originators of these com- 
 plaints, Avhat he has done as favors to those who had business with his 
 office would not have been used to condemn him. 
 
 I pass to the consideration of the allegation that the accused, without 
 a proper order, sold and disposed of cast-off clothing and other military 
 stores belonging to the United States, and converted the proceeds to his 
 own use, which is charged to be in violation of the 36th article of war. 
 That article provides that any commissioned officer, &c., who shall be 
 convicted of having sold without a proper order clothing, &c., belonging 
 to the United States, shall suffer certain penalties. I am not aware that 
 that article when enacted had any reference to substitutes' clothing, which 
 subject did not enter the minds of the law-making power. But, however 
 that may be, and however clearly the article may relate to the military 
 clothing entrusted to the officers for which alone he was held accountable, 
 it has not been shown that the Government ever laid claim of ownership 
 of this species of property. Certainly it could not have claimed, as it 
 never did claim, a right of property in that which was not, and could 
 never have become, the property of the United States. Had it been 
 proven that any clothing placed in the hands of the accused by the Gov- 
 ernment for the purposes of distribution to drafted men or volunteers, for 
 which he was held responsible, had been sold without the proper order and 
 the proceeds converted to his own use, the accused would have been clearly 
 guilty. But the proof adduced on the part of the prosecution failed to 
 show that any part of the clothing belonged to the Government. The 
 two or three old soldier suits alluded to in the evidence were distinctly 
 
25 
 
 « 
 
 sho-wn to have belonged to persons held to service or mustered as substi- 
 tutes, who left them at the accused's office, but regarded them as too 
 worthless to have them called for. You may meet, upon any day, bo^'s 
 and men wearing uniform coats, or pants, or hats, who have never been 
 in the service — such is the passion and fondness of our people foi' military 
 dress. Will any one say that the Government holds a man responsible 
 for clearing out of his ofBce the filthy rags that made the room uidiealthy 
 and swarmed with loathsome vermin V 1 think not. 
 
 But, satisfied that the prosecution would be untenable under this charge, 
 it is further alleged that the accused sold and disposed of substitutes' cast- 
 off clothing, without a proper order, and converted the proceeds ; and this 
 is charged to be conduct unbecoming an officer and conduct prejudicial to 
 good order. The allegations seem to rest mainly upon the very clear and 
 reliable testimony of Mr. and Mrs. McKegnay and Mrs. Colk-n. It is 
 clear that this was not the property of the (Jovernment, and that no claim 
 was ever made to it. If anybody could complain of its disposal, it would 
 be those substitutes who gladly cast it off as filthy rags, careless what 
 became of it — glad to be rid of it. So filthy and unhealthy did it become, 
 that after holding it for months, until even the employees became infected, 
 and failing to receive any instructions respecting it, it was cleared out in 
 accordance with the custom of every Provost Marshal's office in the coun- 
 try. Captain Robinson, a witness for'the prosecution^ testifies that there 
 is no regulation upon the subject, and no general or special orderij relating 
 to it, and that the accused was not required to make any return of such 
 clothing, because it was not soldiers' clothing. There is no proof to show 
 that any Provost Marshal in the country — all of whom must have had 
 clothing of this description — ever made, or was ever required to^make, 
 any such returns. There is no proof either that the Government cared to 
 give orders about such ragged material, or that any officer in the country 
 ever made returns of it. The truth is that they did not, but that it was 
 always regarded as willingly abandoned by the substitutes and treated as 
 if thrown into the streets. No complaint has ever come from them about 
 it ; and until there does come such a complaint, the Government has no 
 right to belittle itself by dealing with vermin-covered rags. Is this 
 accused to be made the scapegoat for doing what every officer of similar 
 duties in the country has done without objection from the Government? 
 I do not know to .what extent these charges can be stretched, but it 
 seems to me very becoming the conduct of an officer or gentleman, and 
 very much to the benefit of good order, to rid the office of this unhealthy 
 material, after the Government had failed for more than two years to 
 take any notice of it. You will, of course, properly weigh all these facts 
 in making out your judgment, and determine whether or no the accused 
 was not fully justified. 
 
 There is another specification which I really supposed would have been 
 abandoned: that which charges the accused with violating the thirty-nintli 
 article of war, in that he received from one David E. Taylor five hundred 
 dollars, as security for the appearance of Patrick Rogan, a bounty-jumper, 
 and that he refused to refund the said money, but converted it to his own 
 use. The article of war, under which this offence is charged, relates to 
 officers convicted of having embezzled or misapplied any money with which 
 he may have been entrusted for the payment of men under his command 
 
26 
 
 or for enlisting men into the service, of for other purposes. Now, I frankly 
 confess that I have been unable to discover any relation between the charge 
 and the specification. This was, in no sense, money which had been en- 
 trusted to him, or for which he could have been held responsible in a charge 
 of embezzlement. But I do not rest the case solely upon the law, because 
 the facts are clear, and do great credit to the foresight and ability of the 
 accused. It appears that many persons had enlisted in the Eigiith Dela- 
 ware regiment who, after receiving State certificates for tAvo hundred 
 dollars each, deserted their regiment, and proceeded to Philadelphia. In 
 order to collect the money due upon the certificates, it became necessary 
 to have endorsees who were in collusion with the payees. Patrick Rogan 
 came into possession of one of these certificates. He says upon this stand, 
 when called before the Court first, that he obtained it from West, the 
 payee, and afterwards he declares that he received it from one Stewart, 
 Avhose name does not appear upon it. He proceeds to Wilmington, Dela- 
 ware, and presents the certificate at the counter of the Messrs. Robinson, 
 bankers, for sale. The circumstances look suspicious, the bankers have 
 had notice of the intended fraud, and Rogan is delayed until some one 
 can come to vouch for him. Messick comes, but refuses. Then Rogan 
 is arrested, and taken before the accused, not as a bounty-jumper, because 
 in that case the accused would have had no right to release him on a de- 
 posit of money, but upon suspicion of being in collusion with a bounty- 
 jumper. Rogan gives a fictitious name (Rodgers), and tells several con- 
 tradictory stories about the manner in which he became possessed of the 
 warrant. A stranger to him and to Capt. Wilmer comes in, and, with 
 remarkable kindness, ofi'ers to deposit a large sum of money as security 
 for RfO.o-an's appearance. But that trick did not catch the accused. Fi- 
 nally, David E. Taylor deposits five hundred dollars as security, with the 
 distinct understanding that the money will be repaid whenever Rogan 
 shows that he came by the warrant honestly^; and this understanding was 
 contained in the receipt given by the accused, which receipt Taylor has 
 mysteriously lost. From that day to the close of the recruiting service, 
 neither Rogan nor Taylor, as both testify, ever offered to explain how he 
 came by the warrant. Immediately after the publication of theworder to 
 discontinue recruiting — of which the Court will take judicial notice, and 
 which released all substitutes, drafted men who were then unassigned, and 
 all deserters and bounty-jumpers — to wit, on the 4th day of May, Taylor 
 and Rogan call for the five hundred dollars, and there being no longer any 
 necessity for holding it, it is at once handed over to Taylor, Avho gives a 
 receipt in full, which is in evidence. That is this serious charge of em- 
 bezzlement. 
 
 With regard to the certificate and the amount due upon it, I may say, 
 although it has no connection with this case, that it is difficult to deter- 
 mine to whom it belongs. It is not the Government's ; it is not Wilmer's ; 
 it is not Rogan's. In my opinion it belongs to the State of Delaware, 
 and in that direction I may advise the accused to dispose of it. 
 
 It is true that the matter was thus settled subsequently to the date of 
 arrest of the accused, but he had no idea that there was here any ground 
 of complaint, nor did he know, until ten days afterwards, what were the 
 charges against him. 
 
It is, doubtless, ^vith great pleasure to tlie Court that I come to consider 
 the last charge and specifications, which I may do at one time, to wit : 
 violation of section 1, Act of March 2, 1HG3, in that, first, the accused 
 did present, and cause to be presented for payment, certain claims against 
 the Government in the form of receipt rolls; and, secondly, that he did 
 knowingly make and use, and cause to be made and used, certain false, 
 fictitious, and fraudulent claims and vouchers against the rrovernment, in 
 the form of receipt rolls, for the jiur])ose of obtaining payment thereon. 
 
 Upon a careful review of the great mass of the testimony in this cause, 
 I am at a loss to find any evidence bearing either directly or indirectly 
 upon this charge. In the multitude of charges with wliich it was sought 
 to overwhelm the accused this had been overlooked. No proof has been 
 brought to sustain it. In addition to this, the first specification, alleging 
 the presenting of certain claims for payment, in the form of receipt rolls^ 
 does not charge any offence whatever. Every officer of like duties is 
 compelled to do this very thing. The Act requires that it should be 
 charged and proved that the officer knew such claims to be false, fictitious, 
 and fraudulent. The specification is therefore fatally defective. Again, 
 the account must not only be false, fictitious, or frau<lulent, but it must 
 be presented with a view of receiving payment thereon. Now it has not 
 been shown, and cannot be shown, that this accused ever presented such 
 a claim for any such purpose. Probably this charge relates to the vouchers 
 given by the employees for the money due them, and, as they declare, re- 
 ceived and collected upon their own cheeks. If so, how can such proof 
 connect this account with this charge ? There is not even any proof that 
 the party saw the employees sign the rolls. In answer to tliis whole 
 charge, it appears in evidence that the rolls were correct and bona fide, 
 and were signed by the employees because they received the whole amount. 
 The only connection that the accused had with these rolls and vouchers 
 was, not to present them so that he might obtain money upon them, but 
 simply to certify to their correctness and to identify the employees' signa- 
 tures as genuine. It was a matter with which he had no further official 
 relation, and I think is so clear, that I do not hesitate to dismiss it without 
 another word. ' 
 
 The second and last specification is, that he made and presented similar 
 papers for obtaining money upon them, knowing them to be false, fraud- 
 ulent, and fictitious. The same argument will apply to this specification, 
 as it varies from the former only in supplying the defect, by alleging, in 
 the terms of the law, that the accused knew them to be false, &c. This 
 allegation, I may say with confidence, has not been sustained ; nor were 
 these claims for money, nor were they presented in order to obtain pay- 
 ment to him. As receipt rolls, they were not within the provisions of the 
 Act of Congress. It is further in evidence, in order to contradict the 
 very pith of this charge, that the parties entitled, and not the accused, 
 received checks representing every dollar, and therefore gave the receipts. 
 The rolls were put in evidence for an entirely different purpose, to wit, to 
 form the basis of showing, if possible, that the accused compelled and 
 required the employees to sign them. As that subject has already been 
 considered, I do not mean to weary the Court with any further remarks 
 about it. 
 
28 
 
 It is not my purpose to discuss the* subject of jurisdiction, but as the 
 question has been asked during this trial, Avhether or no the new charges 
 diifer from the old, I think it due to myself to name the points of dif- 
 ference. 
 
 The following specifications are in the new charges that were not in the 
 old, to wit : 
 
 1. The number of specifications in the old was seventeen ; the number 
 in the new is twenty-nine. 
 
 2. Specifications 2, 3, and 5, of charge 1, that accused received a part 
 of salary of clerks, deputies, and agents, well knowing that he had no 
 right to claim. The corresponding specifications in the old charges al- 
 leged that the accused retained money from the pay of the clerks, &;c., 
 for his own use, and handed them the balance. 
 
 3. Two specifications, each under a different charge, alleging that the 
 accused sold substitutes' cast-oflF clothing. The only original one, alleging 
 this to be the property of the United States, was materially different, and 
 is also included in the new. 
 
 4. One specification alleging that the accused presented certain claims ; 
 the material difterence being that, in the new, the allegation in the old of 
 guilty knowledge that the claims were false, &c., is omitted, thus making 
 the allegation more comprehensive and uncertain. 
 
 5. Two specifications charging presentation, making, and using of false 
 claims, in the form of receipt rolls, which are not charged in the old. 
 
 6. Specifications charging that the signing of blanks, refusing to muster 
 volunteers presented by Maris, the receiving of portion of pay of clerks, 
 deputies, and agents' salary, knowing that he had no right to claim it, the 
 procuring of substitutes, and the selling of substitutes' clothing, as charged 
 to be in violation of the 99th Article of War, are entirely new charges. 
 
 There are some facts, not connected with this case, but introduced here 
 by the prosecution, upon which I deem it my duty to comment. I allude 
 more especially to the proof relating to the check for over $15,000, drawn 
 upon the morning after the accused's arrest. So thorough has been the 
 search into all the private and public acts of this accused, that not even 
 his bank account and checks have escaped the detective's eye. The great 
 defect in the "working up" of this case was a forgetfulness that possibly 
 there might be two sides to it. But the agent who conducted all the in- 
 vestigation which was meant to educe facts sufficient for conviction seemed 
 to act upon the principle that the accused was presumed to be guilty of 
 everything, and was bound to prove his innocence. He seems to have 
 proceeded upon the supposition that one side was good until the other was 
 heard, instead of that safer rule, that one side is Avorthless until the other 
 is heard. Had there been allowed a few moments of consultation between 
 the agent and the accused, with the view of eliciting facts and explana- 
 tions, instead of a settled determination on the part of Mr. Riley to con- 
 vict this accused, in order to sustain his professional pride and reputation, 
 the Court never would have been troubled with this tedious trial. 
 
 Ah ! but the bank check was an enormous fraud discovered just in time 
 for the purposes of this case. Here is proof positive of the fact that the 
 accused has concealed and converted fifteen thousand dollars to his own 
 use ! ! Without stopping to inquire what this money was, what transac- 
 tions it embraced, or without conferring with Major Nickolls, to whose 
 
29 
 
 order the chock was drawn, for tlio purpose of ascortnininiT tlio facts, the 
 check itself is thrown unexpUiined into the case with the expectation of 
 suddenly overwhelming the accused. And doubtless the first impression 
 was, that the success was complete. The defence was then obliged to 
 send for Major NickoUs to shoAv that this was a legitimate and honorable 
 transaction ; but before he could arrive from Baltimore, so clear had the 
 facts already become, that the Judge Advocate kindly admitted that he 
 was wrong, and that he was thoroughly satisfied about it. But as it may 
 be said that the accused acted improperly in drawing the check to ]Major 
 Nickolls' order after he was suspended, I have simply to say that this 
 was done after consultation with Captain R. IT. Ollly, who succeeded the 
 accused, and upon Captain Offly's request and direction. I wish to add a 
 Avord as a fact in the cause with refrard to another matter hij^hlv credit- 
 able to the accused. It is this, that during this whole invc.-^tigation, it 
 has not been shown that as a Government ofiicer, he was ever guilty of 
 any falsehood, prevarication, or of withholding any fact, or of retaining 
 or concealing any money belonging to the Government. All that he has 
 done from the time he began to act as Provost Marshal has been done 
 openly and with commendable frankness; and he has been ever ready to 
 make such statements in explanation of any facts that the Court or the 
 Judge Advocate might desire. So open has he been, that he made haste 
 to send for all his private checks and to place them in the hands of the 
 Judge Advocate to challenge his closest scrutiny. It is rare that the 
 records of a court-martial, or of any other court, show such manly and 
 honorable conduct; but such is his life, and such has been his undis- 
 guised struggle with the enemies of the Government in Delaware, being 
 ofi"ended and defeated in which, they have conspired to slaughter him. 
 
 Against all the testimony in this case adduced .to sustain these charges, 
 I put the simple record of this man's life and character. Passing by his 
 Herculean labors for the country ; passing by the many sacrifices he 
 made ; passing by the facts that he was foremost of all in Delaware for 
 activity and efficiency, (wliich might cover a multitude of mistakes of 
 judgment,) I call your attention to his well-sustained integrity, supported 
 in this cause by all the weight of position, honor, loyalty, age, and high 
 moral character. He is no irresponsible man who sought every oppor- 
 tunity to defraud his Government. Trace him with Senator Cresswell, 
 from Maryland where he first resided, over to Delaware, as the neighbor 
 of Daniel Corbit and Charles Tatman, thence to Wilmington, where he 
 was known and loved by such men as Robinson, Vaughan, Wales, Garrett, 
 and Quigley. Hear those aged gentlemen, Messrs. Corbit and Tatman, 
 full of years and full of honors, if to be loved and revered by all who 
 know them, for their moral character, is the highest of earthly positions, 
 as I think it is; hoar them tell how, -when sorely tried, when financial 
 ruin stared him in the face, brought on by his labors for the public safety, 
 he stood unmoved from his honor, keeping all that was left to him — his 
 integrity before God. 
 
 You, gentlemen, are the judges of the law and the ficts. I make no 
 appeal to your sympathies. I address myself to your calm, deliberate 
 reason. I make no deductions from the testimony. I inquire directly 
 whether the matters alleged arc proven or whether they constitute the 
 offence for which this accused is to be held responsible. I have dealt 
 
80 
 
 ■with these facts fairly, extenuating nothing. I have been careful to em- 
 brace in the argument every issue in the cause. It is for you to say 
 whether these issues have or have not been successfully met by the 
 accused. I have been careful to confine myself to what has been 
 put in evidence. Could I have gone beyond that, I would have shown 
 you such a case of persecution, begun by the personal enemies of this 
 man. originating with those who are not friends of this Govern- 
 ment, as would have aroused your deepest indignation. Even as it stands 
 you must have noticed how great were the promises of overwhelming 
 testimony against him when we began, and how weak and unreliable the 
 actual evidence upon which his conviction is asked. 
 
 This is not a case to be supported by inferences. It must stand or fall 
 upon facts and motives. If A. B. did not receive a license as a broker 
 you are not therefore to infer that the defendant refused to recommend 
 him because he was not paid to do so. Because a lad, the son of the 
 accused, was in the office as clerk, you are not therefore to infer that this 
 was a fraud in order virtually to ii\crease the father's inadequate salary. 
 Because certain clerks, in consideration of the pecuniary circumstances 
 of the accused, chose to devote a portion of their money to his benefit, 
 you are not therefore to infer some enormous fraud upon the Government. 
 Because certain papers were signed in blank, you are not therefore to 
 infer that business wh,s loosely conducted, that the means of perpetrating 
 frauds were placed in the hands of irresponsible parties ; that nobody 
 supervised the conduct of subordinates. Because a man desires to have 
 the flag of his country float from every house in honor of victory and 
 returning peace, you are not therefore to infer that he had unlawful pur- 
 poses, riotous conduct, malice in his heart, and the design to injure the 
 persons or property of his neighbors. Admitting that any exemption 
 papers were withheld, you are not to infer that there was no good reason, 
 satisfactory to the Board of Enrolment to withhold them, or that the 
 party is injured or prejudiced by it. Because, in the anxiety to avoid 
 draft, boys are deceived into volunteering and protected when deception 
 is discovered, you are not to infer that the accused is throwing obstacles 
 in the way of enlistments. Because a party under orders, obliges partners 
 who are brokers, to put in a substitute in lieu of one who proved to be a 
 deserter, and compels them to contribute their equal share for this pur- 
 pose, you are not to infer that the money goes into his pockets and that he 
 is interested in procuring substitutes in order to make money for himself. 
 Because a party arrests a man who is practising deception and fraud upon 
 the Government, requires bail for his appearance, and repays the money 
 upon the settlement of the case, you are not to infer embezzlement and 
 larceny. No man was ever legally condemned upon inferences. So strict 
 is the law that even guilty intent must be proved, ho\yever hard it may 
 be to show the motives of the human heart. It is facts only, clearly and 
 satisfactorily proved, leaving no point upon which a reasonable mind can 
 entertain a doubt, that can lawfully convict a man of a criminal charge. 
 
 In the examination of this case the Court has, doubtless, been impressed 
 with three facts : Firstly, That numerous specifications have been preferred 
 which are not supported by any testimony whatever ; Secondly, Tliat many 
 matters totally irrelevant to the charges, and unnecessary to a clear un- 
 derstanding of the case, have been introduced ; and Thirdly, That there 
 
31 
 
 has been a needless and complicating accunudation of testimony to the 
 same state of facts. The purj)0se seems to have been to charge many 
 things in the hope of proving something, rather than to chiirge few things 
 and to bring direct proof respecting them. Tiiis trial has taken the wide 
 range of an investigation into the general conduct, the good or bad ad- 
 ministration of the Provost Marshal's office, as Avell as into all his private 
 conduct and business. And yet I do not regret this. The worst that 
 could be charged, and all that could be charged, has been brought up, and, 
 I think, has been met frankly antl explained satisfactorily. \Vhatever of 
 error in judgment the accused may have committed, it has gone before 
 you. And I tlo most sincerely congratulate him as my friend, and because 
 of my regard for all official station, and the pain it would give me to see 
 high office prostituted and corrupted — I congratulate him that there is not 
 one M'ord of testimony, even of all that his foes have said of him, that 
 fixes upon him the guilt of fraud or intentional wrong. I will say, fur- 
 ther, that this trial has proved that he has performed his duties Avith great 
 ability, foresight, and energy; and that in the day of his country's peril 
 and need, when those who now seek to ruin him sought to ruin his country, 
 he sacrificed his business and all his property, and gave his time in the 
 best days of his mental vigor, to guard her interests, to advance her cause, 
 to bring triun^ph and victory to her arms, and to re establish her power 
 from ocean to ocean. Be your verdict what it may, he will ever carry with 
 him what, to an honest man, is worth all else in life, the consciousness that 
 in the great struggle, which involved the nation's life and the honor of the 
 flag, he exerted every power and subsidized every energy to do what he 
 could for the just and righteous cause. 
 
 All of life and manly joy that is left to him, after this service to which 
 he has given every dollar that he had, is wrapped up in the desire to 
 maintain his integrity. For that, he awaits the uncertainties of a trial 
 by Court-martial ; for that, he has suffered an anxiety which, I pledge 
 you, has been most painful and intense; for that, he has met you here 
 day after day, and with becoming dignity of manner and propriety of 
 conduct ; for that, he has struggled hard, in order to leave to his family 
 at least the inheritance of a good name. He does not claim that he has 
 made no mistakes, but he looks proudly to this, the most searching inves- 
 tigation that I ever knew, because it has failed to tarnish his honor, or to 
 impeach his integrity. Try his case — not leaning weakly for him, but, for 
 God's sake, not leaning against him — remembering what he has done that 
 is of good report, and forgiving the errors of judgment that human in- 
 telligence could not avoid. Consider the evidence legally adduced ; the 
 character, appearance, manner and bearing of the witnesses for and against 
 him ; his public services ; his devoted loyalty ; his unselfish labors for the 
 public good ; his character as a man, and the embarrassing and perplexing 
 duties which taxed his strength night and day. Bear in mind, if you will, 
 how, for the sake of his Government, he was ruined in business ; how 
 steadily and earnestly he struggled to maintain her cause ; how vigilantly 
 he guarded her interests; how manfully he fought against her foes; how 
 much of their enmity and prejudice he excited ; how zealously they have 
 pursued him; how they strike at the Government through him, and seek his 
 conviction in order to discredit it. Throw around him all the safeguards 
 that law and justice and loyalty guarantee. Deliberate upon the facts, 
 
32 
 
 with all the presumptions of his inivDcence to which he is entitled ; and 
 grant him a safe deliverance bj a verdict that j-'our judgments and con- 
 sciences will forever approve. ' * 
 
 Col. S. M. Bowman followed, on the part of the accused. He said : 
 
 May it please the Court, I propose to do no more in the argument of 
 this cause than to sum it up. My colleague has handled the defence in 
 such a masterly manner, that my t;isk is a short one. When invited by the 
 accused to assist in defending him against this prosecution, I could not 
 refuse, because I believed him to be the victim of a vile combination of 
 disloyal men. As Military Commandant of the District of Delaware, I 
 had evidence of his patriotism, of his energy and devotion, and I could 
 not bear to see him stricken down. I rejoice that his trial has been or- 
 dered before a Court composed of good loyal men, of high-toned officers, 
 who know what it is to do and to suffer in the cause of our country in the 
 dark hour of need. 
 
 When the Judge Advocate read the forty pages of charges and specifi- 
 cations, the Court must have been convinced of the truth of the doctrine 
 of total depravity. I confess the picture there drawn of Capt. Wilmer 
 was so difterent from that I had seen of him, I did not recognize it. He 
 was charged with "conduct unbecoming an officer and a gentleman," set 
 forth in eleven specifications, embracing almost every crime short of 
 murder, spread out upon the record Avith appalling particularity. It was 
 alleged he had defrauded the Government by signing certificates of ex- 
 emption and transportation to exempts from the draft. But the prosecu- 
 tion has signally failed to prove that he uttered any such certificates 
 improperly, or that they were so uttered by others. The proof is, they 
 were signed in blank for convenience, and to promote the rapid execution 
 of the public business, according to the almost universal practice. It is 
 true that practice gives opportunity to subordinates to defraud the Go- 
 verninent, by issuing them to persons not exempt, but in this case no such 
 fraud was ever perpetrated, and the Government has been in no way in- 
 jured or prejudiced. I repeat this proposition with the more confidence, 
 because I know Baker's detectives have been set on the track, and there 
 is scarcely a man in all Delaware they have not plied for evidence, with 
 which to condemn the accused, and, if such evidence was in existence, it 
 could hardly have escaped the keen scent of these detectives of the War 
 Department. 
 
 He is accused of "refusing to muster in volunteers." The only volun- 
 teers he refused to muster were such as desired to be assigned to the 8th 
 Regiment Delaware Volunteers, a part of which was doing guard duty in 
 that State, and the accused had no power to muster such. He "refused 
 to furnish James H. Lowe and two others with proper certificates of ex- 
 emption from the draft." But the proof shows the fact to be merely a 
 delay in issuing the certificates, for the reason that they were not in proper 
 form, and the refusal accompanied with a full explanation that the proper 
 blanks were expected in a few days, when the proper certificates could be 
 given. He "procured substitutes through the substitute brokers, and 
 realized large sums of money." It often happens that the most generous 
 
33 
 
 acts of a man's life arc quoted against liim. So in this case. The accused 
 Avas extensively and favorably known all over the State of Delaware; he 
 was known to be not only an honest man, but a most obli;.Mnn; officer, 
 ready to give information to the country people, in regard to volunteer- 
 ing, in regard to the draft, and as to how the substitutes could be procured. 
 It was most natural they should first call upon AVilmer, the Provost Mar- 
 shal. It would often happen that substitutes could not be furnished 
 promptly ; and the countryman, with his peaches rotting under the trees, 
 perhaps, would naturally desire to return liome, and yet provide some way 
 to get a substitute for himself or his son. How could this best be done? 
 Could he leave the money with a broker ? If he did, he would stand a 
 good cliance to lose it, for substitute brokers are not remarkable for re- 
 sponsibility, so far as I ever heard. AVhat more natural, then, than to 
 leave the sum agreed on in the hands of the Provost Marshal, to be paid 
 over when the broker furnished the proposed substitute ? And yet this 
 Avas not strictly regular, though it is difficult to discover any harm in it. 
 There is no proof that Wilmer ever defrauded any one who left money 
 with him, or that any person whatever was damaged by bis obliging dis- 
 position, in such cases. One thing is certain, if Maj. Judd, or Capt. 
 Blunt, or almost any other reguUir officer had been in his place the busi- 
 ness of the Provost Marshal's office would have been performed more in 
 accordance with the "Regulations." But the "Regulations" were made 
 for times of peace, and not for war. They seem to have been devised, in 
 some respects, to obstruct flie public service, rather than to promote it. 
 Officers who have taken part in our great war may be classified like verbs, 
 into regular, irregular, and defective. Wilmer was an active-transitive 
 verb. He never hesitated when anything was to be done. Was there an 
 emergency? AVilmer was the man to grapple with it. We then find him 
 working all night, his neighbors and friends assisting him in raising troops 
 to save the State of Delaware from invasion. And not only all night, 
 which was Saturday night, but all day Sunday, and Sunday night, 
 during which time he had raised over four hundred men. He was 
 thus employed when he was observed by Dr. Garrett, wiio took him 
 some breakfast, which he ate upon the sidewalk. And while Wilmer was 
 thus employed, the Hon. George Read Riddle, Major Allen, and their 
 confederates were laughing and expressing their delight with what they 
 were pleased to denominate, "the scare of the Union shriekers." 
 
 I have only known the accused during the time I was in command of 
 the District of Delaware — from August, 1804, to April, ISOo. I know 
 he had most difficult and arduous duties to perform. I know half the time 
 I could not furnish him Avith suitable guard to conduct his recruits and 
 drafted men to Baltimore, because there were not sufficient troops under 
 my command or to be had, and we used to send orderlies, clerks and em- 
 ployees, Avhen Ave could do no better, in order that the public business 
 should not sufler. And I beg to state another fact in tins connection, 
 Avhich is, that when I Avent to that command, I found the custom prevailed 
 of taking bonds for the appearance of men arrested under military pro- 
 cess. There Avas no laAV or regulation for such custom, and thereafter the 
 custom Avas abolished, and the deposit of money Avas required ; because, 
 there being no law authorizing a bond, the bond could never be enforced 
 by laAY, Avhereas the deposit of money Avas in the shape of a penalty 
 
34 
 
 enforced without the intervention of a court. And this accounts for the 
 course of the accused in Taylor's case. 
 
 I advised it ; let it be proved my advice was wrong ! 
 
 It was further alleged agaiiist the accused that " he encouraged and 
 abetted a riot in the City of Wilmington." 
 
 This was the evening of the day when the country was electrified by 
 the news of the surrender of Lee's array. The event was commemorated 
 by the ringing of bells, by illuminations, by bonfires and by a display of 
 flags. The old flag floated from the church steeples, from the public build- 
 ings, from the vessels in the harbor, and from almost every private dwell- 
 ing. The trains of cars came and went literally covered with bunting. 
 The little boys ran home from school to get out their tiny flags. Old men 
 and young men, rich men and poor men, citizens and soldiers, all rushed 
 to the streets and grasped each other's hands, they knew not why. Never 
 before was there such general joy in that good Quaker city. But the 
 joy was not universal ; there were some people in that city who had never 
 rejoiced, except when the rebels were triumphant. They had no love for 
 Union victories — no love for the old flag. They had no sympathy with 
 this display of patriotic feeling. This will be more easily understood 
 when it is remembered that one of the parties bringing this complaint de- 
 clared, " if the Southern Confederacy was not acknowledged, he did not 
 wish to live." And there were some among that large crowd of people 
 who were indignant with the display of disloyal feelings on such an occa- 
 sion as this, and were ofl'ended with some because they darkened their 
 windows and displayed no flag. 
 
 They called upon such and asked them to show some little respect, at 
 least some outward show of loyalty, though it might belie their hearts, 
 aiid generously offered to assist in putting up a flag. As far as the 
 testimony goes, no one was assaulted — no one was abused — no one 
 was insulted, except by such insult as may be implied by seeing the 
 United States flag floating from the windows of dwellings occupied by 
 the unwhipped rebels of Delaware. But what was the off"ence, in that 
 matter, proved against the accused ? Nothing on earth, save this : 
 While standing on the balcony of his own office, witnessing what was 
 going on in front of the office of the rebel Commissioners, and observing 
 they (the crowd) were about to be gratified, for the first time, with the 
 sight of the Union flag displayed in that locality, Captain Wilmer was 
 heard to say: "Make them put it out of a front window." And for 
 this Captain Wilmer has been accused and tried " for conduct unbecom- 
 ing an officer and a gentleman'' ! I do not intend to animadvert upon the 
 most extraordinary conduct of Colonel Browne, a principal witness for 
 the prosecution, except so far as to call attention to what he stated on the 
 witness stand. He says he was delegated by the War Department, on 
 the application of certain men in Delaware, to proceed to Wilmington to 
 investigate the official conduct of the accused. On arriving at that city, 
 he proceeded at once to Capt. Wilmer's office, and after making a hasty 
 examination of the office, professing to be satisfied, he left for the pur- 
 pose of conference with the rebel State Commissioners. We next hear of 
 him at the house of the Honorable George Read Riddle, Senator of the 
 United States for the State of Delaware. The peculiar emphasis with 
 which this ponderous title was pronounced by the witness, shows how 
 greatly he must have been impressed by the official and personal conse- 
 
35 
 
 quencc of that august personage. lie admittcil that the rebel Commis- 
 sioners Avere there present — that they had a most excellent supper ; turtle 
 soup, I think, he said — but \vc could not draw out of him that he had con- 
 ferred with a loyal man in all Delaware. He had with him a "confiden- 
 tial officer," who turns out to bo Rile}'', one of Baker's detectives, who 
 seems to have all the instinct ami intrcpidit}'' of the blood-houn<l. I have 
 tracked that '"confidential officer," in the course of this trial, with feelings of 
 disgust and horror. I can imagine, from what I have seen and heard of this 
 detestable spy and public informer, that, while Col. Browne was discussing 
 the facts over the excellent old Bourbon he found at Senator Riddle's, 
 becoming more and more convinced, as time and liquor passed away, that 
 "Wilmer was a guilty man, this man Riley, like another Uriah Heap, was 
 seated in a dark corner of the room, more delighted with the facts he 
 heard related there than he would have been with all the wines and sup- 
 pers his generous host could aiford. That was the occasion, and such were 
 the circumstances, of this conspiracy. Col. Browne was delighted with 
 being entertained by such good people, in such elegant stj^le, and the 
 "confidential officer " was equally delighted with the prospect of a victim, 
 which he might exhibit as evidence of his valuable services as a public 
 informer. And hence it was not difficult to discover, in the harmless pro- 
 ceedings of a fcAV excited and joyous people, in the quiet city of Wilming- 
 ton, rejoicing over the crowning victory of our national arms, a "bloody riot" 
 instigated and led on by the accused — the man who had done more to raise 
 troops and to exert a loyal influence than any other one man, perhaps, in 
 all Delaware. And be it remembered, that the Hon. George Read Rid- 
 dle, United States Senator of Delaware, is about the only man that ever 
 dared to make a disloyal speech at the City Hall, in the City of Wilming- 
 ton, and was driven from the stand ; that his colleague, Senator Saulsbury, 
 is the man who made the most virulent attack that was ever made upon 
 Mr. Stanton, the Secretary of War, charging him with crimes which, if 
 true, would damn him to eternal disgrace — crimes which he, Saulsbury, 
 did not even attempt to prove, leaving the inference on the minds of all 
 just men that the author was a vile calumniator ; and whose present 
 colleague in the lower house of Congress declared, last fall, boldly on 
 the stump in Delaware, that he never would vote a man or a dollar to 
 carry on the war against "our Southern fellow-citizens." 
 
 I refer to these facts, not for the purpose of exculpating the accused, 
 but to show the company Col. Browne fell into in Delaware, and to show 
 the virtues of "turtle soup." 
 
 Amongst other things fished up out of the gutter and charged against 
 the accused, is that of "selling old clothes." 
 
 In the early stages of this trial, the Judge Advocate seemed to bo 
 deeply impressed with the idea that the clothing of which he had informa- 
 tion was the uniform clothing furnished by the Government, with which 
 men mustered into the military service were uniformed ; but it turned out, 
 on proof, that it was only the cast-off clothing of substitutes, shed at the 
 time they assumed the uniform of the soldier. It was the custom to allow 
 all such to send their old clothing home, if they so desired, or to have it 
 packed and marked, to be called for at some future time ; but it was not 
 alloweil to any substitute to retain and take away his cast-off clothing. I 
 remember well when this custom was established in Delaware. 
 
36 
 
 During August and September last large numbers of those offering 
 themselves as volunteers came from other States, — bounty jumpers, who 
 deserted as soon as they received their bounty. So with substitutes. 
 They could do this the more easily by being allowed to retain their citi- 
 zens' clothing, which they would resume, and then escape the guards in 
 the guise of citizens. I remember some fifteen or twenty escaped from 
 Camp Smithers in one night. This camp Avas in my command. In ad- 
 dition to other precautions, I directed that no enlisted man or substitute 
 should be allowed to retain his citizen's clothes. This was not prescribed 
 by any orders or regulations known to me. Nevertheless the interests of 
 the public service required it. In the course of time, the amount of old 
 cast-off clothing, at the Provost Marshal's olEce, became a nuisance, as 
 has been described by the witness. The accused, it seems to me, had no 
 clioice but to burn it, or dispose of it in some ether way. What should 
 be done with it ? The War Department did not trouble itself about such 
 things. There was no regulation on the subject; and the whole matter 
 having been left to the discretion of the accused, he sold so much of the 
 old rags as had accumulated on account of "whom it may concern." Is 
 it said, the accused ought to have made a return of the proceeds to the 
 War Department ? He had no right to do this ; the proceeds in no way 
 belonged to the Government, and, so far as was known, the Government 
 never claimed any such right. There is not an officer in the Government 
 who can point to a single instance of such claim or such return. ^ Our 
 magnificent Government has not descended so low as to deal in rags. I 
 look upon this effort to establish a title to those filthy old cast-off clothes 
 as disgraceful. Our Government cannot shoAV either privity of contract 
 or privity of estate to the dirty pile. And there is not a ijiember of this 
 Court, having any claims to a knowledge of the plainest principles of law, 
 who would venture the opinion that it was the duty of the Provost Mar- 
 shal to turn the money over to the Government. 
 
 I come now to the last accusation I propose to discuss, which is, that 
 of having received the voluntary contributions of such persons as were 
 employed in and about the Provost Marshal's office from time to time. 
 
 And here I beg the patient attention of the Court. In my judgment, 
 this involves the only question in the entire case worthy a judicial pro- 
 ceeding. 
 
 The evidence shows the accused to be a man of much more than ordi- 
 nary ability, energy, and patriotism. Some of the witnesses who have 
 known him from youth up, declare him to have always maintained a char- 
 acter for integrity and respectability, equalled by few, excelled by none. 
 
 When the war broke out, such was his devotion to our cause and country, 
 that he forsook his business, neglected all his personal interests, and, at 
 great sacrifice and expense, raised a regiment of troops in the State of 
 Delaware, and led it to the field. On returning home he found himself 
 ruined in fortune, but, nevertheless, respected and hohored by all who 
 knew him. He had a large family to support. It may be said he had no 
 business to have a family; but, nevertheless, such was the fact; and a 
 family, too, of which he has reason to be proud. I will not undertake 
 here to describe the family circle as I have seen, it, but I will venture to 
 say, you may travel the world round and round and not find a household 
 better ordered or more interesting. 
 
37 
 
 The bare pittance allowed a captain in the army was scarcely sufficient 
 to pay the daily expenses of such a family, at the high price of house-rent, 
 clothing and living, at rates brought on by the war. Much less, could he 
 hope to pay off, from his salary, the honorable debts contracted by him in 
 raisine: the rerriment he had furnished for the public service. These facts 
 were all known to his neighbors and friends, who desired to assist and 
 sustain him, because they knew his value. • 
 
 He might have become a speculator, sutler, or contractor, and made his 
 fortune, as many others have done ; but he did not ; and his friends all 
 combined to keep him in the public service. 
 
 And they had good reason for this, because they knew him to be a reli- 
 able, patriotic man, equal to any thing they wanted him to do. I will 
 venture to say, that Capt. Wilmer could, to-day, if he was known to be 
 in necessitous circumstances, receive the free-will contributions from his 
 neighbors and friends in Delaware, amounting to thousands of dollars. 
 Those who know him intimately, love him (provided, always, they are 
 loyal). And " that's what's the matter," to use a slang phrase. And 
 when I explain this, I explain all there is in this charge. 
 
 He did not fix the salaries of his employees — they were fixed by law. 
 
 These employees were not required to appropriate any portion of their 
 income to his benefit, and yet they preferred to do so, simply because they 
 wanted to aid him. And the Court must have observed the indignation of 
 some of the witnesses, and the surprise of all, that they should be requireil 
 to give an account of what they had done with their own money. Many 
 of them had been discharged, and none of them could reasonably expect 
 any favor from the accused in future, yet, true to their generous impulses, 
 and the highest sense of honor, they seemed to inquire of tbe Judge Ad- 
 vocate : " What business is that to you?" And it must be remembered, 
 these witnesses are not complainants. But I would not have the Court 
 understand that such contributions were merely for the private benefit of 
 the accused. He is well known to be a man of great liberality in regard 
 to all matters, and, especially, in regard to every measure tending to sus- 
 tain the war, and the Government in the vigorous prosecution of the war. 
 
 If we had been allowed to prove the sums of money paid out by the 
 accused, during the time he has been in office, to persons " to whom he was 
 not indebted" — according to our offer — for purposes of promoting the 
 Union cause, and sustaining the Administration during this trying war, 
 we would have shown a balance-sheet that would have astonished even the 
 Judge Advocate. 
 
 May it please the Court, I am disgusted tliat we are obliged to explain 
 these things at the instigation of our enemies — the very men we have been 
 fightinfi; during the whole of this war. 
 
 This whole misfortune comes from the evident want of discretion on the 
 part of the Assistant Provost Marshal General of Maryland and Dela- 
 ware. If you will lend me Baker's detectives about a week, I will agree 
 to show him to be a character whose rascality will far surpass his wit — or 
 any other officer or man in the Government, and when Baker's detectives 
 have it in their power to run down officers and people, good-by to 
 republican government. 
 
 But we are not trying to run down Browne ; he is scarcely worth the 
 chase. 
 
38 
 
 I have been not a little astonished^t the zeal manifested by the Judge 
 Advocate in the prosecution of this cause. It would seem, he was urged 
 on by some power near the throne. I warn the Judge Advocate not to 
 be too sure it is desirable to extinguish the accused, right or wrong. I 
 know the Secretary of War better than he does, and my word for it, 
 when he shall come to see this record, if he ever does, and calls to mind 
 the treatment he has received "from Delaware copperheads, who are at the 
 head of this prosecution, he will hardly appreciate that zeal of our per- 
 sistent and pertinacious Judge Advocate ; for it would be impossible for 
 him to forget some things. 
 
 I can but regard this proceeding as a most, cruel and unnecessary pro- 
 secution. It is clear to the observation of all, that the traitor sympathizers 
 of Delaware have got the ear and confidence of somebody in power, and 
 it must be admitted they have used him most industriously and adroitly 
 to accomplish their purposes. 
 
 Their purpose was to destroy Wilmer, to them the most offensive man 
 in Delaware. And at their bidding, Baker's detectives were loaned. And 
 more unfortunate still, Colonel Browne was sent to Wilmington to hobnob 
 with these traitors to find out all about the matter. Is this the way to 
 treat a good faithful public servant ? Has it come to this, that we throw 
 our children as sacrifice to the traitors who have tried to destroy us all ? 
 
 I honor this Court for its evident patience, and desire to do what is 
 just and right in this matter. We have given the accused the best ser- 
 vices we could command, and we believe he ought to be acquitted. T 
 don't see how it is possible to come to any other result. Whatever 
 may be the facts proved, surely the accused must be acquitted of any 
 criminality. For instance, it is proved, certain papers were signed in 
 blartk, but inasmuch as it was necessary for the rapid promotion of 
 the public business, it being impossible to get along otherwise, and no ' 
 dimage proved, the verdict as to such charge must be either not guilty, 
 or if guilt]/, as to the signing the blanks, the further remark should be 
 added, to which the Court attaches no criminality. And so, perhaps, of 
 some other charge. A man may be technically guilty of doing an act 
 from which injury might accrue to others. The question in such cases is. 
 Did the damage accrue ? As to the blanks, there was no bad motive 
 involved and no damage resulting, and hence no criminality can be 
 attached to the act. 
 
 And as to the contributions of clerks and brokers, the whole matter, 
 when viewed by the light of surrounding circumstances, was right in itself, 
 and the parties contributing have never complained and do not now com- 
 plain, and they are the only parties who have a right to complain. 
 
 I now take my leave of this case, and commit my good friend and 
 co-vvorker in Delaware, to your friendly hands. I sincerely hope he will 
 be triumphantly acquitted. 
 
 But if, after you shall have considered all the facts, you feel it your 
 duty to convict the accused, do it handsomely and boldly — prove by your 
 verdict how a good loyal man, who has ever sustained you in the field 
 against your foes at home, can be stricken down through your instrumen- 
 tality by those same foes. 
 
 Retire to your own homes, and when you shall hereafter remember the 
 war and its incidents, and shall think of the loyal good men in the border 
 
39 
 
 States who tried to rally pulilic sentiment in support of our an. 
 field, try and forjiiet Wiinier. l)(»n't tell your families and friends 
 liow he was persecuted hy traitors, how you heard the story and . 
 all, but had not the coura<io to save him from ruin, though you ki 
 your inmost souls he shouhl iiavo been acf|uitted. In such cas^^^JP* 
 to forget this trial and forget the name of Wilmer ; for yo 
 him as his friends know him, and as I know him. 
 
 But, disgrace him as you may, I will not forget him or h 
 not think the less of Wilmer, or of his good wife and accoi 
 ters, nor of his brave son, Edwin, who is already great bcf 
 or of his little children I have often seen him lead to Sui 
 will be his friend, for he is worthy of my friendship ; and 
 been true and loyal amid falsehood and treachery, he shall 
 hearty welcome at my home and in my heart. 
 
 I thank the Court for the kind and courteous attention 
 during the progress of this trial. 
 
LIBRARY OF CONGRESS 
 
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