May it please the Court -
I have been charged and tried before you for two of the highest offenses known to the Articles of War, those of desertion and absence of my detachment without leave - the first punishable with death, or such punishment as the court may inflict, and the latter according to the nature of the offense at the discretion of the court. If I felt that I had been intentionally guilty of either offense charged before you, I would not say a single word in (?) of my guilt, but knowing as I most certainly do, that I have never intentionally violated any rule, or regulation of the service and knowing that intention alone characterizes crime, I confidently appeal to your sense of justice, upon a full and candid consideration of the evidence laid before you, to acquit me of all fault and permit me to return to my position in my Regiment with the same unsullied reputation which the evidence shows me to hitherto sustained.
So far as relates to the charge of desertion, I submit to the honorable court, that not one particle of evidence has been laid before you tending to show that I ever in any way, in thought or deed, designed to abandon the service of my country. On the contrary, the evidence does show that when stricken down by disease and incapable of leaving my bed, my only anxiety was to report myself to those whom I supposed to be in command over me, and that as soon as I could leave my bed, I availed myself to of the kindness of a friend to make that report; and that repeatedly afterwards, while detained by sickness and suffering, I expressed to every one my delight in the service and my anxiety to rejoin it and my surprise that I had not received word to do so. The evidence shows further, that, when at length I have so far recovered as to travel in a carriage, I determined to wait no longer for orders but to come to Concord and see why I was not wanted - and that in pursuance of that determination I did come to Concord and report myself for duty, voluntarily and without any suggestion or hint from anyone. I confidently refer the Court to the testimony of every witness introduced on both sides, in the course of the trial, and ask them if there is one scintilla of evidence, tending to prove me guilty of the great and heinous crime of desertion, from any one of them. Is there a single word testified to by any one of them giving to show, that I was not that I was ever guilty of the base and cowardly crime of desertion, but even that I ever spoke dishearteningly of the service of my country's cause, or of any officer of the army? On the other hand, does not every thing proved on either side show that I was always the true soldier, extolling the service and expressing my anxious desire to return to it the moment I could have opportunity to do so?
But, I will not detain you by further remarks upon the charge of desertion, for I do not understand that the learned council for the government that there is, or can be, the slightest pretense for your finding me guilty of that foul crime.
To come then to the charge of absence without leave; it seems equally clear and certain that the evidence fails to sustain this charge also. It is essential to establish this offense, that the person accused should be proved designedly to have absented himself from his command with intention to avoid the performance of a known duty, or that having been accidentally separated from his command he should have staid away therefore with like intention and purpose. In other words, in order to constitute the crime of absence without leave charged against me before you there must have been either in the act of separation from my commander or in the subsequent continuance of that separation, a criminal and wrongful intent and purpose on my part to avoid and escape the performance of a known duty, and I respectfully submit that the evidence utterly fails to establish this existence of such criminal and wrongful intent and purpose at any time between my separation from the detachment at New York on the 26th of July last and my return to duty at the rendezvous for drafted men on the second of September last. On the contrary, the whole tendency of that evidence is to establish what I most solemnly protest, was the exact truth of the care, that I was accidentally separated from the detachment in New York, being left there solely through my misunderstanding as to the true hour of the departure, and that I continued thus separated from that time until I reported myself at the camp for drafted men on the second of September, solely as my mistake as to what was required of me as a soldier on this detached service, accompanied by my sickness and suffering from a sore hand. I most religiously assert, and if permitted to do so, would verify my assertions by my solemn oath, that from the moment that our detachment left South Carolina until after I returned to the rendezvous for drafted men in Concord on the second of September last, I had not the most distant idea that the officers or men of our detachment were to do anything more in New Hampshire than to report to the State authorities at Concord, and then hold themselves in readiness to accompany such recruits as might be assigned to our Regiment, back to South Carolina, whenever those recruits were prepared to move. With this view, when I found myself left alone in New York, I took passage to Boston, and not arriving until late in the afternoon, and having been attacked severely on the way with the diarrhea, I concluded to stay over night in Kingston with my family, from whom I had been separated a year and half and as to whom, unfavorable reports had reached me, and to go to Concord the next morning; instead of going to Concord that evening and arriving there at a late hour. If the gentlemen of the Court will bear in mind that my residence in Kingston is less than twenty miles from Lawrence, and that by stopping at my home over night I should only be delayed over a single train, and should arrive in Concord at half past ten the subsequent morning instead of eight o'clock the same evening, I think they will fail to find any evidence of criminal intent in my going home at that time, especially when they recollect the fact of my weak and exhausted condition upon my arrival home, as by the testimony of Mr. Wilson before them. Immediately subsequent to my arrival home, my disease increased to such an extent as to entirely prostrate me and render my journey to Concord utterly impossible, as shown by the testimony of Col Gideon Webster, who found me confined to my bed and suffering severely at mid-day on the second of August, and by that of Mr Wilson who found me sick in bed within a day or two after my return. Finding it impossible for me to report in person to Concord, while thus confined to my bed I made arrangements with Col. Webster to report by letter there the moment I could leave my bed to do so, and accordingly on the 5th day of August, as the testimony shows, I succeeded in reaching his store, less than half a mile from my house, and got him to write a letter from me to the Adjutant General of the State, stating my condition and my readiness to come to Concord in person if necessary as soon as I was able to do so. Does any one ask, why I thus reported myself to the Adjutant General? The answer is obvious. I understood, and I think that every member of my detachment understood as I did, that upon our reporting to Concord, we were to be permitted to go to our several homes and there remain for two or three weeks or more, until the recruits raised by the draft were ready to be taken by our Regiment. Having been detained at home by sickness for several days, I supposed and believed that all the rest of our detachment, after reporting themselves at Concord, had separated to their respective homes, the location of which I did not know, and had no knowledge to whom I should report except to the Adjutant General of the State. For the same reason, after receiving the reply from the Adjutant General saying I should report to my commander instead of the State authorities, I did not report to any one, because I did not know to whom or where I should report. I had no knowledge or information that Gen. Hinks was in command at Concord, and did not know where to write Col. Jackson or Capt. Burleigh. I had no suspicion that either one of them was at Concord, and did not know where they resided and besides, I supposed that although I had informally reported to the Adjutant General, this fact of my being home and my readiness to return to duty would be more or less known to the authorities than if my report had been made through the proper channel. I therefore waited with anxiety the receipt of some notice that my services were wanted, as the testimony of Col. Webster and Mr Wilson shows, frequently expressing my surprise that I did not receive some word from Concord. In the mean while, I continued to suffer in my health and from a (?) or abscess on my finger, which incapacitated me from the discharge of my military duty or the performance of any active labor, and as soon as I recovered, as the testimony shows, I determined to wait no longer but to come to Concord and see when I was to be wanted. And did come and report myself for duty.
Now, may it please the Court, where in the history of the whole period of my absence, is there the slightest evidence or indication even of any criminal or wrongful purpose on my part to absent myself from the performance of any known or supposed duty of my detachment? It seems to me that none can be found. Will it be contended for a moment, that had I reported myself at Concord the next morning, after I had reached home, as I intended to have done and should have done but for the severe attack of disease which entirely prostrated me, that I could be deemed guilty of any intentional absence without leave? And if not, what is there in my conduct, going to show any such intentional absence? On the 5th of August, the earliest moment I could leave my bed, I (?) Col. Webster, in pursuance of a previous engagement made while prostate and utterly helpless, to report my condition to the Adjutant General. Having done this, I had hereforward, all I could then do, and all I supposed or believed it was incumbent upon me to do, until I was notified that my services were required in conducting recruits to my Regiment. It is true, I was notified that I ought to have reported to my commander and not to the state authorities. But it was impossible for me to do this with my impressions as to the duty of the detachment because I knew not where to address him. I therefore took the only cause which in my ignorance it seemed proper for me to take. I took every means in my power to recover my health, and endeavored to be prepared for the service whenever I should be called upon or expected to render it, and the very moment I was able to do duty I came to Concord and reported myself for duty. It may be said or suggested that I might have rode to Concord in the cars and reported myself earlier. Perhaps I might, and Heaven knows, that if I had supposed that my presence was required here, I should have come if I could have done so without hazarding my life. But, I had not the remotest suspicion that any duty was required of me in Concord, until the recruits were in readiness to be removed to my Regiment, and believed I should be notified when they were ready, as the state had been informed where I was. I protest, therefore, that I had no intention to avoid the performance of any known or supposed duty in remaining with my family as I did during my illness in the month of August last. For the (?) in my intentions and to rebut the presumption that I could have been guilty of any criminal intention in not returning in person in Concord, I appeal to the record of my past life, from my infancy, as shown in the testimony of Col. Gideon Webster, and that of Mr. Wilson, and to my uniform good conduct as a soldier as shown by the testimony of Capt. Burleigh and Sargent Chapman and evidenced in my selection by Col. Bell as the only man from my company to join the detachment. I call God to witness that I have never for a moment intended to absent myself from the performance of any duty since my enlistment in the service of my country, and if, by your judgement I am compelled to suffer any the penalty of a crime against the rules and articles of war, I shall have at least the satisfaction of knowing that I shall suffer most innocently so far as any consciousness of guilt, or wrongful intention is concerned.
With these suggestions, I throw myself upon the indulgence and sense of justice of the members of the Court, not doubting that you will act, in arriving at a decision upon my case, as your sense of duty and a regard to all the facts and circumstances shown in evidence, may compel you to act, and that decision, whatever it may be, I shall endeavor as a good soldier, to rest satisfied. I cannot, however, but hope and trust that you will fail to find that all reasonable doubts of my guilt are removed, and give me the advantage to which persons accused are entitled before every tribunal, that they are presumed to be innocent, until they are proved to be guilty beyond all reasonable doubt.
Nov. 13, 1863
Elbridge G. Towle
