GENERAL ORDERS, 
No. 11. 
HEADQUARTERS OF THE ARMY, 
Adjutant Gbnkkal’h Office, 
Washington, February 5, 1862. 
I..The following “ General Orders,” No. 39, from the Headquarters, 
Army of the Potomac, is published from this Office, that the action on 
the recommendation therein contained in the case of Captain John R. 
Cutler, 33d New York Volunteers, may be recorded with the proceed- 
ings of the General Court Martial which tried him : 
GENERAL ORDERS, 
No. 39. 
HEADQUARTERS, ARMY OF THE POTOMAC, 
Washington, February 4, 1862. 
I..Before a General Court Martial, of which Brigadier General 
J. M. Brannan, United States Volunteer service, is President, 
convened at the Camp of Smith’s Division, by virtue of “Spe- 
cial Orders,” No. 192, from these Headquarters, of December 
19, 1861, was arraigned and tried Captain John R. Cutler, 33d 
New York Volunteers, on the following charges and specifica- 
tions : 
Charge I. 
“ Violation of the 15th Article of War." 
Specification—“In this; that the said Captain John R. Cutler, of 
the 33d Regiment New York State Volunteers, did, at 
Camp Granger, District of Columbia, on or about the 1st 
of August, 1861, sign a false muster roll in which six of 
the men therein enumerated as present had previously 
deserted.” 
Charge II. 
“ Violation of the 14th Article of War." 
Specification.—“ In this ; that he, the said Captain John R. Cutler, 
of the 33d Regiment New York State Volunteers, did 
receive pay from Paymaster Banister for six men, they 
having previously deserted. This at Camp Lyon, Mary- 
land, on or about the 12th day of August, 1861.” 2 
Chakgk III. 
“ Violation of the 18/A Article of War.” 
Specification—“In this ; that the said Captain John R. Cutler, of 
the 33d Regiment New York State Volunteers, did, at 
Camp Griffin, Virginia, on or about the 12th of Decem- 
ber, 1861, cause to be signed a false return relating to 
the desertions, discharges, deaths, &c., in his Company, 
when called upon for said return by order of the Colonel 
of his Regiment.” 
Charge IV. 
“ Violation of the 14th Article of War.” 
Specification—“In this; that the said Captain John R. Cutler, 
33d New York Volunteers, did, on or about the 7th day 
of July, 1861, at Elmira, in the State of New York, pro- 
cure James Hilbreth, of his Company, to personate Pri- 
vate Salsbury, (a deserter from his Company,) and to 
draw the pay of the said Salsbury, which pay the said 
Captain Cutler applied to his own use, giving the said 
Private Hilbreth fifty cents for his services.” 
Charge V. 
“ Violation of the 31*4 Aiticle of War.” 
Specification—“ In this ; that the said Captain John R. Cutler did 
purchase and cause to be sold to his Company a quantity 
of boots, gloves, and various other articles, at exorbitant 
prices, for his own private personal benefit. This at Camp 
Griffin, on or about the 1st day of November, 1861.” 
Charge VI. 
“Disobedience of orders.” 
Specification—“In this ; that the said Captain John R. Cutler, of 
33d Regiment New York State Volunteers, did, on or 
about the I5th day of September, 1861, take from a house 
on Mackell Hill, two blankets and one lady’s plaid cloak. 
This in violation of General Orders.” 3 
To all of which charges and specifications the accused pleaded 
“ Not Guilty.” 
After mature deliberation on the testimony adduced, the 
Court finds the prisoner as follows : 
Of the Specification to the 1st Charge, “ Not Guilty.” 
Of the 1st Charge, “ Not Guilty.” 
Of the Specification of the 2d Charge, “ Guilty.’ 
Of the 2d Charge, “Guilty.” 
Of the Specification of the 3d Charge, “ Not Guilty.” 
Of the 3d Charge, “ Not Guilty.” 
Of the Specification of the 4th Charge, “ Guilty.” 
Of the 4th Charge, “ Guilty.” 
Of the Specification of the 5th Charge, “Not Guilty.” 
Of the 5th Charge, “Not Guilty.” 
Of the Specification of the 6th Charge, “ Not Guilty.” 
Of the 6th Charge, “Not Guilty.” 
And does therefore sentence him, the said Captain John R. 
Cutler, 33d Regiment Newr York Volunteers, “ To he cashiered.” 
II-.'The Major General Commanding, upon reviewing the pro- 
ceedings in this case, is led to remark upon the very objection- 
able mode of framing charges which has been adopted by the 
reporting officer. Instead of stating the offence of which the 
accused is supposed to be guilty, the charge in three instances 
is “ Violation of Article of War.” In this manner Captain Cut- 
ler is charged with violating the 14th, the 15th, the 18th, and 
the 31st Articles of War. He is acquitted of violating the 15tli, 
the 18th, and the 31st, but found guilty of violating the 14th 
Article on two occasions. The specifications being, 1st, that he 
received pay for six men who had deserted, and, 2d, that he 
procured Private James Hildreth to personate a deserter from 
his (Captain Cutler’s) Company and draw pay in his name, 
which pay, it is alleged, Captain Cutler and Hildreth divided 
among themselves in very unequal proportions. The evidence 
is very plain that Captain Cutler was guilty of the offences 
charged in these specifications; but, on turning to the 14th 4 
Article of War, it will be seen that the offence furnished by that 
section is the signing of a false certificate relating to the absence 
of either officer or private soldier, or relative to his or their 
pay, and although the infamous conduct described in the 
specifications quoted is “unbecoming an officer and a gentle- 
man,” and therefore punished by the 83d Article of War, it 
cannot be said to be a violation of Article 14th, which refers to 
an entirely different matter. 
Most of the Articles of War simply ascertain the punishment 
of the military crime described in them. They declare, for 
example, that whoever “ shall make a false muster of man or 
horse,” (Article 15,) “ shall be cashiered.” Some few of them 
do in terms forbid the doing of the act against which the pun- 
ishment is denounced, but this is not the case generally ; and, 
in every instance, the emphatic part of the article is the declara- 
tion that the person so offending shall he punished in the man- 
ner and degree designated by the statute. It is clear, then, that 
it is improper to describe a military offence as the violation of an 
Article of War. An Article of War is more distinctly violated 
when a Court fails to annex the statutory penalty to a military 
crime, than by the crime itself. Instead, therefore, of charging 
upon an Officer or a Private, a violation of any Article of War, 
the reporting officer should name the offence, which is punished 
by the article, and proceed to specify, with the addition of time 
and place, the circumstances in which the offence consists. A 
person can only be guilty of a charge by being guilty of the 
matter stated in the specifications of the charge. There must 
be such a correspondence between the two, that to have been 
guilty of the one draws with it the necessary consequence that 
the accused is guilty of the other. Whenever these conditions 
do not obtain, the record is defective. In the present case, the 
dishonoring acts of which Captain Cutler is found guilty, are 
not punishable by the 14th Article of War, and their commission 
cannot, by any indulgence towards an inaccurate mode of fram- 
ing charges, be considered a violation of that article. But, it 
does not follow, that the 33d Regiment New York Volunteers, is to be longer disabled by continuing to number among its 
Captains such delinquents as John R. Cutler. His guilt was 
demonstrated by the trial ; no interpretation can be given to 
the testimony by which this conclusion can be avoided ; indeed, 
the most convincing evidence—it may be almost called an ad- 
mission—of the guilt of the accused is to be found in his attempt 
to show that the general sentiment of the officers of his regiment justified 
them in procuring the personation of deserters absent from the regi- 
ment before the paymaster, the drawing of pay in their name, 
and the appropriation of this pay to the use of the officer con- 
tinuing and executing the scandalous roguery! The effrontery 
of such an attempt is almost incredible, but unhappily the proof 
of it is to be found in this record. 
The sentence of the General Court Martial in the foregoing 
case of Captain John R. Cutler, 33d New York Volunteers, 
cannot, therefore, be carried into effect; but justice to the mili- 
tary service requires that this officer should no longer remain 
upon the rolls of the Army. It is therefore respectfully recom- 
mended to the President of the United States that this officer 
be stricken from the rolls. 
III..The General Court Martial of which Brigadier General 
J. M. Brannan is President, is dissolved. 
II. .In compliance with the recommendation in the foregoing order, 
the President directs that the name of Captain John R. Cutler, 33d New 
York Volunteers, be stricken from the rolls of the Army. 
By command or Major General McClellan: 
L. THOMAS, 
Adjutant General. 
Official: 
Assistant Adjutant General.