Item No. 7300778

This printed general order was issued by the War Department in Washington, DC, on July 30, 1863. It states the interesting details of the case against Judge Hazel B. Cashell of Maryland, who, during the Gettysburg Campaign, was accused of “giving intelligence to the enemy.” The judge evidently “did give intelligence to a body of Rebel Cavalry [J.E.B. Stuart’s]…by informing them, and by pointing out to them, the direction and route which a large lot of cattle, belonging to the United States, had, on the 28th day of June, 1863, been driven, to escape and avoid being captured by said body of Rebel Cavalry.” Although found guilty of the charges, the court—led by General Ethan Allen Hitchcock—let Cashell off with a warning. Citing that the location of the herd was not revealed voluntarily or with “criminal design,” the court “affixes no penalty to the offense beyond an admonition that, in future, he will be more on his guard in answering inquiries addressed to him by an enemy.”

This judgement did not meet the expectations of Secretary of War Edwin M. Stanton, who provided a lengthy rejection of the court’s findings and dissolved the court martial entirely, the transcript of which is below.

The document is 4 pages and measures about 5” x 7 1/4”. Weak centerfold with some paper loss. Two holes in the left margin for placement in a binder. The order was among an archive of documents from the brigade staff of the 3rd Brigade, 2nd Division, 3rd Corps, Army of the Potomac (archive of Col. Thomas H. Dunham, 11th Mass.). It is marked as having been received August 20, 1863.

Stanton Transcript:

War Department, July 29, 1863

II . . The findings of the Court upon the charge and specifications are approved. The “Sentence,” as it is termed, is disapproved. The charge and specification, of which the accused was found guilty, necessarily imported criminality under the 57th Article of War, and the declaration of the Court, that “it has not appeared in evidence that the information was volunteered, nor does the Court perceive that such intelligence was given with that criminal design which the law contemplates as the animus of a breach of the 57th Article of War,” was unwarranted by the law and the testimony.

It appears from the evidence in the record that the accused had at pasture on his farm, in Montgomery county, Maryland, some five hundred head of cattle, which, with some five hundred others, all the property of the United States, were driven away on the morning of 28th June for their protection from the rebel cavalry, then approaching. The rebels riding up soon thereafter, demanded, in the presence of several persons, including witness (Thomas Rabbitt) and the accused, in what direction the cattle had gone. Rabbitt, practising a ruse which war justifies, pointed them in a direction opposite to the true one. One of them returned, however, in a few minutes from the pursuit, and repeated the demand, when the accused unhesitatingly indicated to him the road which the cattle had taken, and, in addition, stated their number, and that they were without any guard, except the herdsmen ordinarily attending them—a statement which could have had but one object. The information thus communicated was most important to the enemy, and it was given voluntarily, without threat or persuasion, or the exercise of any undue influence whatever. When to this prompt and complete disclosure made to the enemy is added the disloyal reputation and sympathies of the accused, as proved by the evidence, no doubt can be entertained as to the animus of his conduct.

It sufficiently appears that the accused was expecting the arrival of the rebels, and, in referring to their coming, said there were to persons in Rockville—naming the United States Provost Marshal and Postmaster—“who ought to be, and he guessed they would be, captured.” His guilt, under the 57th Article of War, was fully established by the testimony, and that guilt was aggravated by the trust which had been reposed in him by the Government, and which was so shamefully and disloyally betrayed. Yet the “Judgement” of the Court was, that there was present, in the action of the accused, no such “criminal design as the law contemplates as a breach of the 57th Article of War;” and therefore the Court contents itself with admonishing him, that “in future he shall be more on his guard in answering inquiries addressed to him by an enemy;” and this is the penalty provide for an offence which, under the Articles of War, is punishable with death. For such action by a Military Court, in presence of such flagrant crime, there is believed to be no precedent.

The Court also directs that their “judgement” shall be published in three of the newspapers in the city of Washington. This publication will not be sanctioned, since it would be, in effect, a declaration to all disloyal men that they may, at will, communicate intelligence to the public enemy without fear of any other penalty than the gentle suggestion of a Court Martial that they should be on their guard when doing so. Although the accused has been relieved of all responsibility under the 57th Article of War, he is still liable to be prosecuted under the 2d section of the act to suppress insurrection, &c., approved 17th July, 1862, for giving aid and comfort to the rebellion; and, that the prosecution for this offence may be proceeded with, he will be handed over to the civil authorities.

It is ordered that this Court be at once dissolved, and that another Court Martial be organized for the trial of the cases now pending.

It is further ordered that this review be published in the Army and Navy Gazette, as an expression of the strong disapproval with which the action of this Court is regarded by the Department.
EDWIN. M. STANTON,
Secretary of War