j £ CHAR«ES^AND> SPECIFICATIONS • J ft. . % »_*. •. " . COPY OF Oj*£ERg, \^' '.'••.asb ••» v< ■r.^: ■ ' «j)£FENGE OF ' ACCUSED, •' • ~ • ^fEAO BEFORE A * • Jk. '# ' « '•'•COURT MARTIAL * * ;*V- ... .■* if ■' «•■ •• # gONVENED IX THE CITY OF NEW'YORK ^..••- .7- ■•■ ♦ •*•*• *t •* ** *i. • December 10, 186&. • m ••• . % . f " : » r>;\j • . r. . * . >•...! •*--,• . ■-.. , ..**--— •-*- J *• A NEW YORK: ;• \ * >\ •-!. C. Bryant .V Co., Printers, 21 Nassau: Street, c. 36, of 18G2, and 308, of 1803, it will be remembered, stait with the unconditional statement that General Hospitals are under the direc- tion of the Surgeon-General! What can those orders mean if they do not bear out the construction given them by the accused ■ The Surgeon-General, in an endorsement of August 13, 1863, directed to Medical Director McDougall, reiterates General Order No. 36, and says, that the Secretary of War had decided in a case coming up from Iowa, in conformity with this General Order, and against the authority of Brigadier-General Roberts, commauding the district of 13 Iowa, to interfere with General Hospitals. Not only that, but Major- General Halleck, in an endorsement commenting on the conduct of General Brown, in relation to McDougall Hospital, and produced here in Court, maintained that military commanders, subordinate, like General Brown, to the Department Commander, had no authoiity to interfere in the management of General Hospitals. So, also, it has been proved here that Medical Director McDougall decided, in a case of conflict with General Brown, that the McDougall General Hospital was self-sustaining, and not connected with the Post at Fort Schuyler. How, if the Court please, could a subordi- nate medical officer, like the accused, surrounded with such prece. dents and orders, but think an order like that of General Brown manifestly contrary to General Orders and special decisions, and so unlawful? At least, will not this condition of rules and regulations prevent the Court from finding that the accused acted either wilfully or with wrong intent ? The accused did not suppose that any thing contained in General Order No. 36, of 7th April, 1802, in relation to the duties of the Military Commander in the City of New York, conflicted with this theory of the exclusive supremacy of the Surgeon General and the Department^ Commander in General Hospitals. In the fiist place, General Order No. 36 must, he assumed, be so interpreted as to give force to all its requirements, and harmony of one part with another; that it must be read and construed as a whole. Its key-note and its starting point are the declaration that u General Hospitals are under the direction of the Surgeon-General." Then, the second, third, fourth, and fifth clauses go on to provide, after again declaring that all General Hospitals in a city are entrusted to the chief medical officer, how disabled men in hospitals are to be discharged from service by Military Commanders, not as General Brown in his evidence would seem to indicate, upon his own will, but only on certificate of a Medical Officer. Then the sixth clause defines that "the Military Commander's duties in reference to all troops and enlisted men, who happen to come within the limits of his command, will be precisely those of a commai;ding officer of a u Military Post." This sixth section harmonizes with the first section by interpreting the words " all troops and enlisted men who happen to come within the limits of his command," to mean "all troops and enlisted men," except those in General Hospitals, which, by a previous clause, are placed under sole charge of the Surgeon-General. So also the requirements of the seventh section, that Military Command- ers collect "stragglers,'' and send them forward to their regiments, does not touch Fitzsimnlons, ca>e, for he was not a i: straggler," the accused believed, within the meaning of General Order No. 36. He was first a patient in the General Hospital on Governor's Hand, was next regularly transferred by name to McDougall General Hospital, by order of the Medical Director; was borne on the muster-roll of the latter hospital and reported to the Adjutant-General, and while in McDougall General Hospital was not only under its guards, but was enveloped by the sentinels of General Brown, who surrounded the peninsula on which that bospital.stands. The ninth clause of General Order No. 36 provides that the Mili- tary Commander cannot order patients in a General Hospital to join their regiments, until the Chief Medical Officer shall report them " fit." The accused found in the chaise of General Order No 51, of Mav 10, 18G2, which directs "Commanders of Departments to designate some officer in each city or town where there is a General Hospital, to perform the functions assigned to Military Commanders in General Orders No. 30," what appeared to him confirmation of the interpre- tation that the Surgeon-General was to control the admission, man- agement, treatment, and time of transfer and discharge of patients therefrom, and the Military Commander was only made responsible for their custody and transportation when fit to be " transferred," or for the authentication of their discharges when pronounced unfit for service by the Medical Officer. And finally, as if to put to rest all doubt about the meaning of Order No. 36, the Secretary of War himself, in the Iowa case, had put upon it a construction, which the accused assumed was conclusive 15 everywhere, and which he ventures now to hold up as a shield against aDy threatened punishment. In view of such orders and precedents, the accused implores the Court to bear in mind that, even upon the testimony of the prosecu- tion, this is not a case of disobediece of an order where there was no reasonable ground to suppose the order was erroneously issued; and also to bear-in mind what character for respectful, prompt obedience to superiors, General Brown and Surgeons Abadie and Sloan—offi- cers of long service in the regular army—give the accused. General Brown testifies that he has " found the accused courteous and re- spectful," and not " captious, or disposed to give annoyance." The testimony of Surgeon Abadie was to the same purport. There are no presumptions, then, that the accused intended or wished to give annoyance to General Brown in the present case. So far from that, the accused solemnly affirms, that up to the occurrences now on trial, from no medical officer in this Department, or elsewhere, did he ever hear the suggestion or intimation that the Surgeon-General had not the entire charge of General Hospitals. Medical officers with whom he has conversed, including those high and low in rank, have agreed in opinion that according to the directions of the War Department no military officer in the Departmeat of the East, lower in command than Major-General Dix, could, without intervention of the Medical Director, remove patients from General Hospitals. The accused did not douht that such was the law and rule of the service. He found in General Orders No. 65, of June 12tb, 1862, that "each Medical Director must, under the orders of his Department Commander, reg- ulate the distribution of the sick and wounded to the hospitals within the Military Department to which he belongs." The General Order seemed to make it clear that no one but Major-General Dix and Med- ical Director McDougall could regulate the distribution or tranfer of patients. Again, in the same General Order, the accused found pro- vision that officers whose duty it is to forward detachments of men from hospitals, " will take care that no men except those provided with written passes from their hospital surgeon, or the Medical Di- rector, shall be allowed to go." 1C So, General Order No. 78, of July 14tb, 18C2, appeared to the accused to confirm the construction that a patient could not be or- dered out of McDougall General Hospital, without concurrence of the Medical Director, by an authority less than that of Major-General Dix, whose order would be assumed to be by concurrence of the Medical Director, who is a member of the staff. That order (No. 78) says, that while in General Hospitals, " men will be under the fostering care of the Government while unfit for duty ; will be in po- sition to be promptly discharged, if proper, and, being always under military control, will be returned to their regiments as soon as they are able to resume their duties." Aid by General Order No. 36, trie Chief Medical Director was the person to determine when men were " able to resume their duties." In these allusiors and comments on General Orders, the accused has no wish to influence exposition or construction of existing orders in respect to General Hospitals. He only desires humbly to lay be- fore this Court the reasons which constrained him him to make the endorsement he did on General Brown's order, to the end that the Court may not only judge of their correctness, but may consider whether or not the accused acted in good faith, and as an honorable officer. The Act of Congress and General Order No. 308, in evidence, re* cite that : " The Medical Inspector-General has, under the direction of the Surgeon-General, the supervision of all that relates to the sanitary condition of the army, whether in transports, quarters or camps ; the hygiene, police, discipline, and efficiency of the field and general hospitals; and the assignment of duties to medical inspect- ors." This General Order also directs surgeons in charge of general hospitals " to yield prompit compliance with the instructions they mav receive from medical inspectors on duty in the army, department, or district in which they are serving, on all matters relating to the san- itary condition of the troops, and of the hygiene, police, discipline, and efficiency of hospitals." Can it be denied that the propriety of removing from hospital a Boldier with a wound as dangerous to life as that described by Sup 17 geon Abadie, is "matter relating to the sanitary condition of troops" in hospital ? And if not, then this order commands " prompt com- pliance with the instructions" in relation to such removal which sur- geons in charge may receive from the Medical Department ? Did Congress or General Orders intend to place general hospitals under a double head of medical officers, and officers not medical ? It cannot be denied that the Medical Department, like every other staff de- partment, must be and is, secondary and subordinate to the line of the array which does the fighting ; but still that admission does not necessarily decide whether it has not been determined by lawful au- thority that the Medical Bureau shall have charge and control over men in general hospitals, who cannot fight and are removed from the theatre of active operations in the field. It appeared to the accused impossible that such general, all-embracing authority over general hospitals could be given to the Medical Department; that surgeons in charge of hospitals could be required to obey the Surgeon-General in respect to inmates, and yet that a subordinate commander in the line, with no claim to professional knowledge, had legal power to in- terfere and arrest the system which might be prescribed by competent medical authority. The Court will recall the clear testimony of Sur- geon Sloan on this point. It seemed certain to the accused that if General Brown had authority, independent of Major-General Dix, or the Medical Director, to order one man out of the hospital who was there as a patient, then he could order one huudred ; and, in the end could take away every male atteudant and nurse, competent to ad- minister to the wants of the suffering;, and thus not only impair but destroy the efficiency and usefulness of the institution. When the accused received the order of General Brown, unac- companied by endorsement of Major-General Dix, it was his inten- tion to detain the man in his ward in custody, report his condition to the Medical Director, and ask his direction. His reply, when re- ceived, would have been scrupulously followed. If it be said that report of the condition of the man should have been made directly to General Brown, and not through the Medical Director, the accused replies that, upon such orders, he has never made reports to General 3 18 Brown, and ne\er was instructed that it was his duty or that it was regular to do so. General Brown states in his testimony, that— « Dr. Webster makes no reports to me, and no reports of or from the hospital are made to the post;" and he adds, «I do not ^con- ceive I have anything to do with the reception or dismissal of the patients or their treatment." But the accused did re.-pectfully inform General Brown that the man was a patient in the General Hospital, and that, in the opinion of the former, the man should not be given up except on permission of the Medical Director. The endorsement of the accused, on Gen- eral Brown's order, covered both those points. And, if it were not so, of what avail would have been any report to General Brown, who Las testified that he considered his orders from General Canby to be " imperative," and thus to afford no opportunity for discretion. If discretion could be exercised in favor of a patient, it could have been on information that the man was a patient. But when General Brown gave the order to Captain Hannan to proceed with a squad of six soldiers and arrest the wounded man; there was no opportunity to state his condition, because the former directed the latter to "re- ceive no papers or protest, but to simply cloy the orders" to arrest and take away the man. The accused solemnly reiterates that, at the time he made the en- dorsement in question on the order of General Brown, be was inspired by no thought, purpose, or wish but to obey implicitly the commands of the superiors set over him in respect to the management of the General Hospital placed in his charge. He was moved by no spirit of disrespect to General Brown. An order of arrest and transportation of a patient, unapproved by the Medical Director, had never before come under his observation, either in the McDougall Hospital, or in the Douglas Hospital, in Washington, of which latter institution the accused was for a long time in charge. His previous conviction of what the rules of the service required, were strengthened on careful inspection of all the endorsements in the present case, by finding that the letters of Colonels Egan and Fry, and the order of General Canby to Gen- eral Brown, assumed the man to be at the post of Fort Schuyler, and 19 not in the General Hospital. The experience of the accused had been, as Assistant Medical Director Sloan testified his own to be, that soldiers in the McDougall General Hospital were uniformly described, in orders and official papers, as being in that hospital, and not merely at Fort Schuyler. If there was error of judgment and opinion in all this, it was an honest error, unaccompanied by any wilful or wrong intent. The accused believed that if Colonel Fry or General Canby had supposed the man to be in McDougall General Hospital, they would have transmitted the recommendation or order, through the Medical Director, to the surgeon in charge, and not have issued the order to General Brown. He was convinced that if, with a patient having a wound as serious as what Surgeon Abadie and Dr. Caldwell have described Fitzsimmons' to be, he had, without a protest, per- mitted the arrest and transfer, unbeknown to Major-General Dix, or the Medical Director, he would have received a rebuke, if nothing more, from his medical superiors. In respect to the documents (marked M, N, and 0, respectively,) which General Brown volunteered to put as testimony in the case, as if to make apparent the true legal relation existing in November last between the McDougall General Hospital and the General Com- manding in the City and Harbor of New York, the accused only desires to say thac they have no possible bearing on the issue on trial. The first two (marked M and N), were written previously to the passage of the Act of Congress of April 16th, 1862, which effected such radical changes in the Medical Department, and are both prior to the issue of all General Orders put in evidence here. As to the remaining document (marked 0), written one month after the pas- sage of the aforementioned Act, but ten days before the date of General Order No. 36, of April 7, 1862, it only directs conference with General Brown in respect to the appropriation of Bedloe's Island, and a place in New Jersey, by the Medical Department. Thus much has the accused deemed it proper to say in exposition of the grounds of his action. It now remains with the Court to find: 1. Whether the endorsement by the accused, on the order of Gen- eral Brown, was a military offence. 20 2. If an offence, whether it has been set forth in proper military form, in the specification to the first charge. 3. What punishment shall be inflicted if the first two points are found against the accused ? In regard to the last inquiry, the first two having been subjects of consideration, the accused, in mitigation of sentence, can only point to the record of his humble service, as it has been entered on the records of this trial. Others have succeeded better and done more, but none have tried harder to discharge all the obligations of duty. As Post-Surgeon at Fort Larned, in 1860; as A-istant-Surgeon in charge of Douglas Hospital in Washington ; as Medical Inspector of the Army of the Potomac, by order of the General Commauding ; as Assistant-Surgeon in charge of the McDougall Hospital, the accused has, under the orders of his superiors, striven to his utmost to pro- mote the well-being of the sick and wounded, and the efficiency of the Medical Department. Errors of judgment on his part, there are doubtless many which he has committed, but errors of intention or wilful neglect, none. To the specification of the second charge the accused, on arraign* ment, not wishing to even seem to deny the commission of any act done by him, pleaded guilty, although the inexactness of a portion of the specification, in respect to failing to give any assistance, is made ap- parent by the return of Capt. Hannan. The accused, however, can- not deny that he forbade Captain Hannan to enter the wards of the hospital. He was inspired thereto in part by the reasons before as- signed in his comments upon the first charge, but chiefly by the fol- lowing report, already in evidence, and received from A. A. Surgeon Caldwell, who was the melical officer immediately in charge of Fitz- simmons : McDoih;al General Hospital, [ Fort Schuyler, N. Y., Nov. 15th, 1863. j Warren Webster, Assistant-Surgeon, U. S. A., Surgeon in Charge: Sir,—I have the honor to report that Philip Fitzsimmons. private 21 of 40th N. Y. V., formerly of 38th N. Y. Vols., in Ward 1, Section B, under my charge, is suffering from a gun-shot wound of the left shoulder, which required a surgical operation for the removal of a portion of the clavicle, on the 1st of Nov., 1863. The wound is now granulating favorably ; but I do not consider him in a condition to be transferred from this hospital at present in any other condition than as a patient. His wound requires to be dressed twice a day. I have also the honor to request that, in consequence of the critical condition of John Fallon, private of the 42d N. Y. Vols., Co. F, all visitors may be excluded until I again report on his condition, and that no occurrence likely to occasion this patient any excitement may be permitted in this Ward during this day. All of which is respectfully submitted by, (Signed) Jno. J. Caldwell, A. A. Surgeon TJ. S. A., In charge of 1 and 2, Section B. The accused assumed that the hospital was, in circumstances like these, sufficiently under his charge to exclude any officer who, like Capt. Hannan, was not of the Medical Department. He did not suppose it was prejudicial to good order and military discipline to thus comply with the request of the surgeon in charge of a patient, in order to save life. If his language would not be liable to misinterpretation he would say, that it is not the accused who, in respect to Fitzsimmons, has done acts " prejudicial to good order and military discipline." The Court cannot fail to remember the earnestness with which Surgeon Sloan, Assistant Medical Director, condemned interference with General Hospitals by subordinate commanders. He said: " It had been the source of a great deal of trouble and controversy. It has sometimes counteracted regulations adopted by the Medical Department. All the General Hospitals in this department are governed by certain regulations and instructions. Interference with those regulations, without the knowledge of the Medical Director, has caused a great deal of trouble and annoyance." 09 How important it is to preserve rules and regulations unimpaired in the McDougall Genera! Hospital will be appreciated by perception of the fact, that this institution has a capacity of two thousand beds and a corresponding staff of assistant-surgeons, hospital stewards, female nurses, and members of the Invalid Corps. To regulate so large a command of sick and wounded, it is easy to see that system, and subordination to one will,.are vital. The surgeon in charge is held responsible not only for the public property there in use, and for making the institution, so far as may be, pecuniarily self-sustaining, bit for the good and judicious treat- ment of each of the inmates. Is not every thing which interrupts the regular order prescribed for such an hospital " prejudicial to good order and military discipline V That the accused maintained good order and good treatment there, is not denied ; and he invokes to his aid the evidence of his character as an officer, given by those who testified to it, and to the condition and management of the ho-pital under his charge. If the record discloses to the Court that the accused has been generally neglectful of his duties; unmindful of the sick and wounded entrusted to his care; or disrespectful, in any sense, to the superiors appointed over him, then let adverse judgment be pronounced. But if, on the con- trary, he has earned a character as an officer worthy of approbation, then the accused asks that it may, so far as justice permits, enter into, and, with the proof in re-pect to general and special orders, control the finding of this Court. (Signed) Warren Wubsteu, *\s*i! N.