J, J. \ _ , 1, Yale University Library Johnson, Reve 39002024982531 A reply to the review of Judge Advocate '}eneral Holt ... in the case of "Tajor General Fitz John Porter .. Baltimore, 1863. yTT^TTTT —^ ^,:^ade, evincing a want of confidence in Pope's skill and capacity for the command, were seized upon and pressed into the service. Whilst it is known that some desired his life, the Court satisfied itself by displacing him from the army, and idly assuming to disfranchise him from all places of honor and trust under the Government. And yet, who in his senses concurs in the justice of that sentence, or fails to stamp it as a gross wrong to Porter and the country. For a time he may not again be permitted to honor his profession, and serve the nation by other deeds of skill and valor, but of the past, he is not deprived. The place in the hearts of his fellow-citizens, which he filled after his crowning achievement of Malvern, is his still. And soon will the people order those, who, as they should do, will listen to the public voice, and be alive to the pubhc honor, that he must be restored to their service, and afforded an oppor tunity of adding, if that be possible, to his own reputation, and to the military renown of the nation. But to return to the evidence. It is true that to a certain extent he critisized in his dispatches to Burnside, the plans of his chief As he did it, was it a crime in any view, military or otherwise? His critisims were for the eyes of Burnside only, and of those of the President and Commander-in-Chief, to whom he must have known, they would be communicated. If he really believed in their truth, so far from offending, it was his duty to give the information, and instead of being punished, he should have been thanked by the Government. Not only was the honor of the flag involved, but the very safety of the capitol. Porter saw that both were in danger by what he believed to be the incompetency of Pope. Was he to keep this convjction in his own breast, regardless of the army and the nation ? Or was he not on the contrary, bound to speak his fears to those who had the power to guard against the apprehended peril ? Were his fears honestly entertained ? Was his motive for stating them patriotic ? Let his dispatch to McClel lan of 1st September, 8.30 P. M., give the answer. After telling him of Bayard's report of the movements of the enemy, he says, " I can see the dust and flags : columns evidently moving directly north ; evidently to wards Leesbnrg. If you can, I hope you will protect the fords into Maryland, and guard the Railroad to Baltimore. I think we w^l have a fight before night. The enemy are between us and Fairfax Court House, and shelled our trains last night. We will fight, or they will avoid us, and strike our rear first. We have been held on thirty-six hours too long, and we are bound to work our way to Alexandria. I only regret that we have not been distributed to forts, and to the fords over the Potomac into Maryland. God speed your operations, and enable you and others in authority to save our Country." (P. 233.) His whole thoughts were evidently given to his country, its honor, and its safety. He appre hended, and as the result proved correctly, the marching of the enemy into Maryland, and perhaps further North. He was alarmed too, (it was the alarm of a brave and patriotic man,) for the safety of the capitol. 32 He ardently wished to avert both dangers, and in words of patriotism that evidently gushed from his heart, he invoked McClellan to be on the alert — to watch the foe, and guard the passes, and prayed God to " speed " his " operation, and enable him," and " others in authority to save the country." Alas, for our good name, this is the man who is charged with faithle.-isness to duty and treason to the nation. And as yet more dis honoring to it, this is the man whom a Court consisting of nine officers, have been induced to find guilty of the foul dishonoring crime, and whose sentence is supported by the highest military, legal officer, and in a moment of blindness to justice, the result of over confidence in others, a sentence which the President, whose mind is naturally honest, to the prejudice of his own good name, without taking time properly to investigate the subject for himself, promptly approved. But is criti cism on a commander's capacity, or of his plans by a subordinate offi cer so criminal as to demand, or at all justify dismissal from service The wars of Europe furnish very many instances to the contrary. Even Napoleon, the strictest of disciplinarians as well as the greatest military man the world has ever known, not only did not punish, but encouraged it. He went further, he excused at times evjen a failure to obey orders. It is singular that this was not in the memory of the Judge Advocate, affluent as it would seem to be with such learning. When Massena, in 1810, was, against his wish, placed by Napoleon in command of the Army of Portugal, and in spite of his criticisms to Napo leon himself on his plan of campaign, in obedience to orders, decided to lay seige to Ciud%d Rodrigo, overruling in that respect the advice of his subordinates, Junot and Ney, who recommended an attack first upon that part of Wellington's Army encamped at Viseu, Theirs tells us, that those two officers "spread abroad amongst their several corps, that it was Mas sena, who, grown old, and no longer the same man, preferred wearisome and murderous seiges to an active and " decisive campaign." (Vol. 12, History of the Consulate and the Empire, London edition, p. 151.) To criticise Napoleon, to advise against his plan of campaign, was harmless in Massena, and to disparage Massena with his army, was harmless in Junot and Ney. But for Porter to question Pope's plans, to speak des pairingly of his strategy, though only to the superiors of both, to evince for Pope as a commander, though only to the superiors of both, "con temptuous and unfriendly feelings," is not to be tolerated or excused. Pope should have been held sacred, because infahible, and Porter con demned for questioning it — whilst Ney and Junot and Massena were pro perly esteemed guiltless, because Massena and Napoleon possessed no title to infallibility. IL— On the 12th of March, 181 1, after the triumph of the French in the battle of Redinha, Massena, who was still in command, implored Ney "to resist to the utmost, as the nature of the ground would well enable him to 33 do, on his way to Condeixa." " Scarcely," says the same historian, "had Massena departed, than Ney began to watch the least movements of the English," and, hurried on by the fear of "being isolated from the main body " of the French army, " he disputed but for a few moments the heights of Condeixa, and then hastened to quit them." As soon as Massena heard of it he was indignant — "expressed aloud his indignation to Fririon, the chief of his staff, and was so greatly angered as to entertain for a moment the idea of depriving Ney of his command, and yet the purpose was only for a moment entertained, and, as far as we are informed, when he was ac quainted with it, Napoleon never entertained it even for a moment, or thought that it required him even to censure Ney. Ney had, however, clearly violated a positive order, and by doing so, as the historian tehs us, "for the sake of avoiding an imaginary, or, at most, doubtful danger, he exposed the army to certain peril, (ib. pp. 210, 211.) How striking is the con trast, even supposing an intended violation by Porter of the order of the 27th of August, between the conduct of Massena and Napoleon in Ney's case, and that of Pope, the Court, the Judge Advocate, and the President, in Porter's case. III. — In November, 1812, when WeUington's whole army did not exceed sixty thousand men, and King Joseph's, Napoleon's brother, num bered eighty-five thousand, and Hill's command, left by Wellington at , Alba de Tormes, fifteen thousand, the King, Jourdan and ah the Gene rals but Soult, advised an " advance between the English Generals. Soult opposed it, and from deference to his authority the project, which was apparently perfectly practicable, and might have led to the destruc tion of the English army, was abandoned, and another plan, advised by Soult, adopted. And then, on the 13th of the same month, when the French crossed the Tormes above Alba, and advanced as far as Neustra, Senora de Retire, the King and Jourdan insisted upon the advisability of throwing the French cavalry upon the Enghsh army, visible on the right, Soult objected to the measure, on account of the obscurity of the atmosphere, &c." " and the result was that when the eightj -five thousand French troops were assembled the English were already out of their reach, and in full retreat upon the Cuidad-Ptodrigo route," and the ob ject of the campaign thereby lost, (ib. vol. 15, pp. 73, 74.) Soult never theless was continued in command, and escaped, as far as we know, even censure on the part of Napoleon. It cannot be necessary to multiply instances from European armies. There are two recent ones, in our own army, occurring under the very eyes of the Government, that also strongly illustrate the injustice of the strict rule applied to Porter. I. Whilst the Court Martial in his case was in session, and in the same building, a military inquisition, instituted at the request of Major General 3 34 McDowell, of an extraordinary character was examining into the conduct of that officer, and with power to investigate his whole military career, although no charges of any kind had been made, against him by any one in authority. Why this favor was shown to McDowell, and Porter wa.s- held to rigid and most technical proof, created in the minds of the ob serving, great surprise ; but it is referred to in this connection with no view to censure. In the course of th-at inquisition, it appeared that McDowell had received a positive order from Pope, (under whose com mand he was,) which he failed to obey. Instead of doing so, be left his own troops and went in search of Pope, whose exact locality; however, he did not know. For this separation from his own corps, say the Court in his case, there was "clearly" nothing in another order upon which he relied, which contained even an implication to justify it. The result of his conduct, too, in that particular, had proved m-ost disastrous, as proved by Pope, whose evidence' in regard to it was adopted by thp- Court. Upon hearing of the battle, that a part of his corps had had that evening. Pope said :¦ '' I stated to several of my staff officers who were present, that the game was in our own hands, (meanmg, if his order had been executed,) that it was impossible for Jackson to escape without very heavy loss, if at all." McDowell's excuse, that he desired to give "the expression of his views to General Pope in person," " co-uld be of no avail when the mis conduct of his own corps thwarted a plan, the execution of which, afforded an opportunity for speedy victory." To this unauthorized and inexcusable failure of McDowell, if it frus trated, as Pope says it did, the almost certain destruction of Jackson's command, and probably its capture, may with much more sho-w of reason be attriliuted the failure of the campaign, (if that was not owing to the inherent defect of the plan of the campaign and the incompetency of the commander,) than to any or all of the failures, even were they established, alleged against Porter. He, however, is cashiered, whilst McDowell is honorably acquitted, and at once placed on important duty, because, as the Court in his case say, gross as his fault was, " grave'' as the "error committed by him," (disobe dience of an express order, which, as the .Judge Advocate says, and cites- De Hart for it, "is a crime which the law has stigmatized as of the highest degree, and against which is denounced the extreme punishment of death,") "his subsequent efforts, on the 29th, to repair the consequences of that unfor tunate movement of his corps, and to press them- forward into action, were earnest and energetic, and disclosed fully that the separation of which this Court has stated its disapproval, was inconsiderate and unauthorized, but was not induced by any unworthy motives." The italics are the Court's. And this moderate reproof, if reproof it can be called, is for the violation of a clear, positive order, leaving the subordinate no discretion,. 35 and committed upon his own judgment alone, without consulting, for aught that appeared, a single officer in his command. His conduct "was not induced by any unworthy motive." Evidenced, in the Court's view, by his course on the following day. Had he cou- fideuce in Pope ? Was he asked ? If he had been, who that knows him, can doubt what his answer would have been, had he said what he thought ? The very fact, that at such a moment, he left his command in the hands of his own subordinates, to find Pope, to counsel with him as to the very order, and probably to advise against it, evinces strongly such want of confidence. But his next day's conduct exempts him from serious censure, as it proved his "motive" pure. And, besides, adds the Court, "it feels itself bound (why, but because it was material to the inquiry) to report the fact, that his commanding officer (General Pope) not only omitted to hold him culpable for this separation, but emphatically commended his whole conduct while under his command, without exception or qualification. " How different the facts and the course of the Court in Porter's case. I. Before deciding not to attempt to execute the order of the 27th by marching at 1 A. M., Porter was strongly advised against it by all of his general officers who were present when he received it. Officers, who have ever been above all suspicion of want of fidelity, and who now, and deservedly, stand high in Executive favor. On their almost positive re monstrance, he only agreed (they could persuade him to no longer delay,) to wait tiU 3 A. M., but two hours, and he and they issued at once their orders accordingly ; and who also proved that Bristow Station was reached as soon as if the march had been attempted at one. II His conduct on the bloody field of the 30th, red with the blood of thousands of his command, and illustrated by his usual fearless gallantry, and greatly diminishing the day's disaster. III. Not only the omission of Pope even to intimate to him that he was held culpable for the alleged disobedience of the order of the 27th, but telling him, as he almost admits in his own evidence, and as was posi tively proved by Colonel Ruggles, (hereafter to be given,) that he had no fault to find ; but, on the contrary, was satisfied with his whole conduct, and his omission afterwards to report him to the Department, were all, in the judgment of the Court in his case, of no importance whatever, proving nothing in his favor, either as to act or intent — having not even a ten dency to show that in his conduct in relation to the order, he " was not induced by any unworthy motive." For the one — McDowell — facts of the same character, not as strong, are a conclusive defence to proved dis obedience. For the other— Porter— such facts, if they have any effect, either come "too late," or prove nothing, or if anything, prove guilt. 86 Such is the striking difference in the administration of its justice, exhib ited by the Government through two of its Military Courts towards these two officers. The one, adjudged to be guiltless, and no doubt properly, who, from misfortune rather than want of skill, had signally failed not only to excite the admiration and gratitude of the Repubhc, but had received its censure — the other, adjudged guilty and cashiered, who, throughout his career, had evidenced rare skill and daring courage, and in the public estimation had won for himself a name of which the best of Napoleon's Marshals would have had reason to be proud. How is this to be explained, and the reputation of the Government to pass unharmed ? Can any reflecting, unprejudiced citizen give a satisfac tory answer ? And yet, how priceless to a " nation is even-handed justice," How imperative the interest, and the duty, to observe and en force it. * But the opinion of the McDowell Court furnishes another instance of duty not performed in the same unfortunate campaign, and at the time known by Pope not to have been performed, and also by the War De partment and the President, after that opinion was given — and yet, to this day, not even censured. And what makes that instance the more striking, is, that it was on the part of General King, one of the members of the Court that convicted and sentenced Porter. The division of that officer, as Pope testified before the McDowell Court, had had a successful fight with the enemy, " who were retreating from CentreviUe, on the night of the 28th of August, had remained masters of the field still interpos ing between Jackson's forces and the main body of the enemy, and that the information was, he thought, brought to him by a staff officer of General Kuig." This filled him, as it well might, with high hopes of suc cess, and he says that he "immediately" "directed General Kearney, whose division occupied CentreviUe, to push forward cautiously at one o'clock that night, in the direction of Gainesville, to drive in the pickets of the enemy," etc. " I directed him, at the first blush of daylight, to attack the enemy with his right advanced, and informed him that Hooker and Reno would be with him immediately after dayhght. To my surprise and dissatisfaction, I learned towards daylight, on the morning of the 29th, that King's division had been withdrawn in the direction of Manas sas Junction, leaving open the road to Thoroughfare Gap. This with drawal of that division made necessary a great change in the movement, and loas a most serious and unlooked for mistake." McDowell, under whose command King was, had before left his corps improperly, as the Court found. He, of course, did not give King the order to withdraw. If he had, the Court says, "it could not be controverted that he would be justly held responsible for their retreat, and the consequent derange ments of the plan of battle then formed by General Pope." By whose order, then, was the retreat made ? By King's. Why was not he caUed 37 to answer for it ? Did he know that it was important to hold his ground ? Pope says that he was " so impressed with the necessity, that that division (King's) should hold its ground, that I sent several orders to General King, {one by his own staff officer,) during that night, to hold his ground at all hazards, and to prevent the retreat of the enemy, and in formed him that our whole force from the direction of CentreviUe and Manassas Junction would fall upon the enemy at daylight." The testimony of General Pope, in relation to these orders, the Court adopt, "as a faithful statement of the facts." Was the first order, or either of the succeeding ones, known to or received by King ? If they were, how is it that he has not been charged with disobedience ? If he did know of the orders, did he satisfy his before surprised and dissatis fied chief that he had good grounds for his disobedience, or, at least, that he " was not induced by any unworthy motive.'' or has he since satisfied the Department ? If he has, then disobedience is not always censurable. Then "the Napoleonic maxim" includes ends-as weU as means. That General King, who is known to be a patriotic soldier, had good motives for his failure, disastrous as Pope says it was to his plans, those who are acquainted with him will readily believe. But to condemn Porter of disobedience, and to cashier him, in the face of the reasons which are proved to have governed him, the concurrent and strong advice, and almost remonstrance, of his three Generals, and when the order itself afterwards proved to be useless, and not only not to question King, but, on the contrary, to make him one of Porter's judges, and to continue him in high command, is conduct on the part of those in authority which.no explanation can justify or excuse. III. A yet more recent case, in the Army of the Potomac, illustrates still stronger the injustice done to Porter. On the removal from its com mand, as we all unfortunately now know it to have been, of General McCleUan, General Burnside was placed at its head. The high character for gallantry and patriotism of that soldier no one that has watched his career will ever question. Whether it was weU or ill advised, his subse quent attack on the enemy at Fredericksburg, proved most disastrous. To redeem the honor of his army, and retrieve, at the same time, his own weakened reputation, he resolved on another attack, and on a different plan. This was at once, not to him only, but to all, criticised with severity by his officers ; and two of his Generals, with, as it was stated, the knowledge of others, visited the President to protest against it, and did so. The result was that the President, on their advice, prohibited the movement. Burnside at once, before he had seen the President, for this insubordination, issued an order, subject to the President's approval, dis missing from the service several of the highest officers in .his command, and many others, and, soon after, informed the President in person that 38 his sanctioning the order was indispensable not only to his remaining in command of the Array, but to his continuing in the military service. He testified, as the reader wih remember, before the Committee of Congress on the Conduct of the War, that the President told him that his order of dismissal was right, but that before acting upon it, he must consult his advisers, and that by persuasion he induced the witness to relinquish his purpose to leave the service. The result, and as it is to be supposed of his consultation with his cabinet, was that not only were none of the officers who were to be dismissed by the order dismissed, but, on the con trary, that General Hooker, one of the number, was put in the chief command. Here again criticisms showing, if unexplained, "contempt" for the skiU of a Commander-in-Chief may be so explained as to be held inno cent, and may even place, notwithstanding his own example of insurb ordi nation, one of the critics in the place of the chief IV. Another strong instance must be in the recollection of all. General Charles P. Stone, more than a year since, for alleged disloy alty and insinuated charge of treason, was taken from his then command and for many weary months imprisoned in Fort Lafayette. Futile were his and his friends efforts to ascertain what were the specific acts of dis loyalty, or the grounds of imputed treason. No explanation was given or could be obtained. And when his case was made a matter of inquiry in the Senate of the United States, the Chairman of the Mihtary Com mittee of that body, who was also Chairman of the Committee on the Con duct of the War, stated, in substance, that the evidence before the latter committee fuhy justified the imprisonment, — and the President afterwards, in replying to a call of the Senate, virtually said the same thing. But now what a change. No Court Martial or inquiry was ordered, though frequently sohcited by Stone. No specification or other definition of the charges ever given him, and yet but the other day he was ordered into ser vice in the Army of the Gulf, and is now at the head of the command which recently so distinguished itself under the head of the gaUant Sherman. Porter's case then, though of the same character of those named, is the only one which, in the opinion of the authorities, it has been deemed necessary to inquire into, much less to punish. He is the only officer who, upon such grounds, has been held unfit for a service, which he has so adorned, and not to be rehed upon to aid the country, which, during the present war, he has so signally served and so fondly loves. But to return to the evidence, it is said by the Judge Advocate, that neither the character of the night, nor the state of the road, nor the con dition of his command excused Porter, for his failure literally to comply with the order to start at 1 A. M. These objections wiU be considered in their order. I. — As TO the Night. Its darkness had been given as a reason for not starting at 1 A. M. The Judge Advocate answers this as he does every part of the case by giving but detached and partial statements of the evidence of a few of the witnesses, and omitting altogether what was proved by those who were -clearly the most to be rehed upon. The parts of the testimony that he does give, are from the evidence of Captain Duryea, Major Barstow, Lieutenant Colonel Myers, General Pope, and General Roberts. What was proved by Generals MoreU, Griffin, Sykes, Butterfield, and Rey nolds, Colonel Cleary, Lieutenant Colonel Locke, Captains Fifield, an Monteith, and Lieut. Weld, all present when the order was received, or was being executed, is not given at all, and the reader will ask why ? And can he give a satisfactory answer. This . obviously unfair omission will now be supplied. 1. Morell says ;: " It was a very dark night. It was cloudy, threatening to rain, and did rain before morning." (P. 145.) 2. Griffin. — "The night of the 27th, and the morning of the 28th was very dark," I "know that at three o'cl-ock, it was very dark, so dark that I used candles with my leading regiments to get through a little piece of woods which we left, in which we had been encamped." (Pp. 160-63.) 3. Sykes. — "The night was unusually dark." "Before I directed the advance to be sounded, I sent an aid-de-camp to find the road, so as to lead the column upon it. He returned in a short time, and told me -that the darkness was so great, that he could not distinguish the road. He also told me that he was assisted in that seareh by several soldiers." siiig, that the universal voice «f the public upon the campaign, which Uterally filled the land, never found its way within the v/alls of his office. But it is strange, that wheil he was penning this eulogium and lauding, " the signal vigor and ability of Pope," it 4id not occur to him, that it was possible the people would find in the fact, that when the President discovered the Capitol in imrai- ¦nent perU, he at once relieved the so much lauded chief, and about 4he 2d of September, placed the army under the command of Major Gen eral McCleUan, and on the 5th of the same month gave to -Porter* the command of eighteen thousand men to guard the most important ])ortioil of the intrenehments around the city, and continued him in that position tuntil the 12th, when he ordered him to the command of his former corps, ,to which a new division was attached, in the army, with which McCleUan, to his great honor and to the incalculable advantage of the country, and the -safety of the Capitol and the Executive, fought the battles of South Mouu- :tain and Antietara — conclusive evidence that the President did not then -.share in the confidence of the Judge Advocate in Pope, or in the truth of ,his eulogium, or participate in his present detraction of Porter. II. But as the joint order, for the reasons already assigned, as long as McDowell and Porter were together, placed the command of then- united forces in McDowell, his order was conclusive on Porter. To have dis- ¦obeyed it would have been a high military offence, ©id McDowell give --an order, and what was it? The facts that he gave one, and what the .order was, are conclnsively proved by the evidence of Locke and Martin, -ibefore referred to, and which was not at all weakened much less rebutted ifoy that of McDowell. III. Porter's "falling back," the Judge Advocate says, was the ground on which the Court decided that there " was a violation of the joint oxdfer." (P. 308.) 56 I. The only proof urged to sustain the fact that there was a falling back is a note (which wiU be given hereafter,) of Porter to McDowell and King, without date, but no doubt written and sent on the 29th, after those officers had left Porter's corps. At this time, Porter was, as before stated; authorized to judge for himself That this was his right, Mc Dowell having then separated from him, the Judge Advocate nowhere contests. On the contrary, he admits that McDowell then ceased to have any rightful authority over Porter, and that he (Porter) was "left un trammelled" and empowered to decide for himself what was to be done under the joint order. (P. 307.) He not only makes this concession, but in another part of his review, as has been seen, he goes farther and maintains, that even McDowell present. Porter had the right, under the order, to act independently of him. In this latter opinion he is certainly mistaken, but in the other, clearly right. The order told Porter that " it may be necessary to fall back behind Bull Run at CentreviUe to-night," and that,. " one thing must be held in view, that the troops must occupy a position from which they can reach Bull Run to-night, or by morning," "and that if any considerable advantages are to be gained by departing from this order, it wiU not be strictly carried out." The power, therefore, to Judge whether departing from the order would produce " any con siderable advantages " was given to Porter exclusively. He had the right to decide on that as fully as Pope himself would have had if personally present. Error in judging of it is no offence if committed honestly. The power, however, was made subject to this positive limitation, that it was not to be exercised so as to place his troops in a position from which they might not be able to "reach Bull Run that night or by morning." Every thing to be done was to be in subordination to that object. If to march in a different direction, or to attack the enemy, or to do anything else, would probably hazard that end, it was not to be done. And who was to decide this ? Porter. Had he acted without regard to that primary purpose, and by doing so had frustrated it, he would have violated the order, and been justly liable to punishment. Now, what evidence is there that in anything he did, after McDoweU left him. Porter did not decide honestly ? His Generals and several of his other officers were examined, and they exculpated him in this, as indeed they did in regard to all the charges. Nor, as to this, did the Judge Advocate attempt to prove the contrary by any one of them. If, therefore. Porter had in fact fallen " back," he was empowered to do so if he really judged it expedient, looking, to the positive injunction, as to Bull Run, or to " advantages " that he thought would result from it. This proposition, however, is not necessary to his vindication. For there is not only no proof that he did faU back, but positive proof that he did not. "FaUing back," as the Judge Advocate uses the term> means retreat. Did his troops faU back or retreat on the 29th. There- 57 is not a scinctilla of evidence of it ; nor does the Judge Advocate offer any evidence of any fact that even tends to establish it. He not only substitutes surmise for proof, but, in favor of surmise, he rejects positive and uncontradicted proof The proof is this : I. Morell. — He stated that he received an order from Porter, written in pencU, a httle before sun set on that evening, and soon after, through Colonel Locke, a verbal message to the same effect, directing him "to make dispositions to attack the enemy," and that he did so. That the order was afterwards countermanded, because of the lateness of the hour, as suggested by him, and he added, "I was directed to remain where I was during the night. " That he made his dispositions accordingly, des cribing them, and said, "in that way we passed the night." (Pp. 146, 147.) The written order was produced, on the cross-examination of the Judge Advocate, and was as foUows : " General MoreU, — I wish you to push up two regiments, supported by two others, preceded by skirmishers ; the regiments at intervals of two hundred yards, and attack the party with a section of a battery, opposed to you. The battle works well on our right, and the enemy are said to be retiring up the pike. Give the enemy a good shelling when our troops advance. "F. J. PORTER, Major General Gomm." What conclusive proof this, that Porter, on that day, was thinking of "the personal safety of (himself) and staff?" It is commended as such , tp the special meditation of the charitable Judge Advocate. The witness further stated: "I received from General Porter an order to remain aU night where I was," in line of battle, immediately in front of the enemy, and did so. 2. Butterfield, Sykes, Locke and B. F. Smith, proved that the troops remained in their position in front of the enemy, aU the night of the 29th. Locke, said that they continued there " untU the next morn ing at daylight," and to the question, " was there any retreat at all, an swered no." (P. 195.) Smith, a witness of the Government, examined by the Judge Advocate, and whose evidence he fully rehed upon for an other purpose, was asked by him. "Was there or not any such display of the enemy's forces as to make it necessary, in your judgment, to retreat before them ? And answered, " I had no means of knowing. When we moved back from that position I supposed it was-for some proper cause, 58 but I did not understand at all what the cause was. I did not receive any impression that we wert.; retreating from the enemy. I supposed that we vvere making a r.'i'onnoissaiK'c to feel the enemy in that direc' tion, and, having fouijd liim, that we had moved back for- some other purpose; and, not knowing about the orders to the general, I remained under that impression, (P. 113) Is it not then passing strange, that with this clear proof the- Court should, as the Judge Advocate says they did, "and j'lstly," h;ive found ihai Porter did fall back, did retreat on that evening, and in that way, (t-ce only one suggested) violated the joint order? It can but be acc()unted for as other gross errors can only be bv asRumina; the existence from nome cau^e aliunde of judicial, and official blindness. The only ground relied upon by the Judge Advocate, is the following note, heretofore referred to, from Porter to McDowell and King. " Geneiiai.s McDowbll a\\> Kng : I found it impossible to communi cate by crossing the roads to Groveton. The enemy are in strong force on this road, and as they appear to li ive driven our forces back, the firing of the enemy having advanced and ours retired, I have determined to withdraw to Manas.sas. 1 have attempted to communicate with McDowell and Sisel, but my messengers have run into the enemy. They have gathered artillery and cavalry and infantry, and the advancing masses of du.-it show the enemy coming in force. I am now going to the head of the column to see whiit is passing and how affairs are going. Had you not belter send your train back ? 1 will communicate with you. "F. J. PORTER, Major General.'^ Waiving for the present, what however is most obvious, that if Porter had withdrawn to Manassas, (his purpose when this note was written,) the movement would have been within the discretion vested in him by the jouit order, yet as the evidelice is clear, thai he did not ko withdraw, but on the contrary, continued where he was in front of the enemy, when the note was written, and until the morning to the 3Uth and then only marched under a positive order from Pope, he could have been found guilty of falling back or retreating upon the ii9th, only upon the hypothesis, that an une.jr:ecuted purpose, is the exact equivalent of an executed one. In the view of-ordinary minds, to do is one thing, and to intend to do, an other — but with this Court and Judge Advocate, they are in fact and in law, identical, and Porter has been adjudged guilty of disobedience, not because- he did disobey, but because he, for a moment, contemplated disobedience There is no better way of meeting such reasoning than to state it. Like all palpable follies it answers itself- 59 The Judge Advocate asserts, however, that the pilrpose 'to " retreat," "most energetically," as he says announced in the note, "was promptly carried out substantially, if not to the letter, because at between five and six o'clock, the accused was found at or near Bethlehem Church, sur rounded by his troops, whose arms were stacked." (P. 308.) He omits however, to inform the President, or even to allude to it, that the greater part of his troops, Morell's division, as proved by Morell himself, remained during the night— and by Porter's order, where McDowell left them, in the immediate front of the enemy, and in line of battle prepared either to repel or attack as the occurences of the night might require. That all the troops where not there, upon tho point in question, proves nothing. The Judge Advocate would seem to think that there was a retreat, if the whole corps was not retained at the spot — placed in solid column, standing erect, and with arms at the shoulder. But this is mere fancy. What witness proved a retreat in a military sense ? Not one, whilst MoreU, Locke and B. F. Smith, testified that there was no retreat, in fact, and no order given for one. Here again hypothesis is made to do more than take the place of proof — it is used to supplant it. The .Judge Advocate, conscious that the order from McDoweU to Porter of the 29th, . which Colonel Locke positively swears he received and delivered that after noon, would be a full justification for Porter's not attacking the enemy, as sails the witness. This he does, not by calling witnesses to impeach his character for veracity, or in any other respect, but by proving I, by Mc Dowell, that he did not recollect giving the order, II, by King, that he was not with McDowell (as Locke had said he was,) when McDoweU as staled by Locke, gave the order. The reviewer says, that McDowell " declared that none such was sent by him." This is not so. He made no such statement — on the contrary he studiously avoided doing so. He but pro fessed not to recollect having given it. King's evidence was to the same effect. He was only asked by the Judge Advocate if he remembered- being with McDoweU about the time when Locke testified he received the order, and said that he did not. And to another question he an swered, that he did not remember hearing McDowell give any such order that day. In his case then as in McDowell's, there existed h\xt a want of recollection. Is this to destroy the evidence of a witness not otherwise impeached, who swears that the order was given ? As far as there is proof and as those who are acquianted with the parties, know to be the fact, Locke's character for veracity is as perfect as that of McDowell's or King's. Why then is his truth assailed, and there being mistaken even, treated as impossible. King'admitted that he was sick on that day, and although he did not state what his desease was, yet, as he said, he was too Sick to take part in the battle of the succeeding day, and was forced to leave his division to be led by Hatch, as his loyalty and gal lantry are beyond all question, his sickness must have been severe. Cer- 60 tain deseases we aH know, (and King's may have been of that kind,) produce listlessness and impair memory. And yet on this negative, and wholly unreliable evidence, it is maintained by the Judge Advocate, that no such order was given, and that Locke, the equal in virtue of McDowell and King, willfully swore false. Mistake as to the fact to which he testified was impossible. If the oraer was not delivered by McDoweU to Locke, then the latter knew it, and his testimony was designedly untrue. But, whether the order was in fact sent by McDowell, Locke positively swears he dehvered it to Porter as coming from McDoweU. No one contradicts this either posi tively or negatively. To receive it as true, therefore, would seem to be unavoidable, but it is not so with the Judge Advocate. He assumes without charging it designed falsehood on the part of Locke in his state ment that the order was sent by McDoweU, and then maintains that the other fact proved by him, the delivery of such an order to Porter, is to be rejected as untrue on the authority of the maxim, which according to his reading is "falsuminuno, falsum in omnibus," (it should be falsusin uno,falsusin omnibus,") Desirous, however, as he evidently was to im peach the credibiUty of Locke, he could not bring himself to charge him with willful falsehood. And, yet the maxim has no application to any other. And it appUes there, because in snch a case, the very ground on which credit is given to human testimony faUs. You cannot be certain in such a case whether there is truth in anj part of the witness' evidence. "Having (says the Judge Advocate,) been discredited as laboring under a complete misapprehension in regard to the first, (the receiving the order from McDowell,) this discredit necessarily attaches to the second, (the delivery of such an order to Porter,) and under the maxim quoted, his entire statement faUs to the ground." (P 314.) Mistake — " misapprehension," as to one fact, the Judge Advocate as- . serfs — taints the whole evidence of the witness, and demands its rejection. It establishes therefore in the sense of the maxim, according to his under standing of it, falsehood. If this was its true construction, in how many cases could testimony be of any avail. What witness but proves at times to be mistaken, or to misapprehend some of the facts to which he testifies ? Human memory often honestly fails — ^is human testimony on that ac count to be rejected ? But if misapprehension as to a fact legally and morally discredits every other portion of the evidence of a witness, for the same reason the misapprehension of the meaning of a legal maxim, would deny to him who entertains it any legal knowledge. The mis apprehension of the meaning of the maxim quoted by the Judge Advo cate, every student will see is clear beyond all donbt. Its meaning is stated with his accustomed perspicuity by Mr. Justice Story, in the case of the Santissima, 7 Wheat, 338. "Where a party speaks to a fact in re spect to which he cannot be pr£sumed liable to mistake, as in relation' to 61 the country of his birth, or his being in a vessel on a particular voyage, or living in a particular plaee, it is extremely difficuh to exempt him from the charge of deliberate falsehood ; and Courts of Justice, under such circumstances are bound upon principles of law and morality, and Jus tice, to apply the maxim falsus in uno, falsus in ominibus. What ground of judicial behef can there be left, when the party has shown such gross insensibility to the difference between right and wrong, between truth and falsehood." But yet how unfair it would be to deny to the Judge Advocate even very distinguished legal attainments. ' He so wished to get rid of the fact fatal to his immediate purpose, the approval of the sentence against Porter, that he was oblivious for a moment of the true sense. of the maxim or of the moral principle on which it rests. It is unaccountable also why the Judge Advocate did not call the Pre sident's attention to the positive statement by Porter in his defence, that Locke delivered the order to him. Did he doubt Porter's truth ? Did he think his statement false ? He could not. He must have known, or could have informed himself, that in the estimation of all who knew them. Porter as a gentleman, and man of honor, is in every respect the peer of McDowell and King, and himself It is no answer to this suggestion, that Porter's defence is not evidence. It is not legally, but it is morally. Locke being confirmed by Porter, whose veracity no gentleman will question, should have saved Locke from the charge of perjury, so reck lessly made by the Judge Advocate. But the evidence of Locke, after McDowell and King were examined, is so clear that it is impossible not to credit it. After stating why he con sidered McDowell's message to Porter singular and important, he said ' that on that account " it impressed me very strongly all the way up to the time that I gave it to General Porter." That its character was such that he thought no one should hear it but Porter, and that he therefore "delivered it to him in an under tone," and that he had " never forgotten the messages or the incidents connected therewith." He also described minutely where he found McDoweU and King. At the time he knew the former weU, but not the latter. And in conclusion was asked this ques tion : " are you entirely positive, as much as- you can be of any fact, that you did dehver to General Porter, on the afternoon of the 29th of August, words which purported to be a message from General McDoweU, to the effect that General King was to be taken away, and that he. Porter, was to remain where he was," and answered, " I am positively certain of IT." (Pp. 223, 224.) It is not thought that there was' a person present when this evidence was given, not excepting the Judge Advocate, who did not fully believe it. It was impossible to do otherwise. The manner of the witness, his evident inteUigence, the reason he assigned for his conviction, all united to chaUenge absolute confidence in his truthfulness and accuracy. To dis- 62 credit him as to the fact of delivering the message to Porter, on the authority of the legal maxim quoted by the Judge Advocate, is as cruel as it is legally absurd. With as much, indeed greater propriety, could the maxim be used to destroy the whole evidence of McDoweU and King. The one is proved by Locke to have given the order, the other to have heard it given. No fair legal mind can doubt this. They say, they do not recoUect the facts. The Judge Advocate maintains "that, under the circumstances, this is in effect the same as positively swearing that the facts did not occur." They then are found to have labored " under a complete misapprehen sion in regard to " them, and, being to that extent "discredited," the dis credit necessarily attaches to " all the evidence," and under the maxim, "falsum in uno, falsum in omnibus," to use the Judge Advocate's Latin, the entire evidence " falls to the ground." That an accusation of falsehood against these officers, on that ground, would be most unjust and disreputable to him who should make it, all will agree, and none, it is supposed, more decidedly than the Judge Advocate. And yet such an imputation is cast by him on Locke, on that very ground and no other. The topic is too unpleasant to be further considered. But finally, on this specification, how the Court could find it against Porter is incredible. It averred only disobedience of Pope's joint order. Whether that existed or not was best known to Pope. Porter's con duct was all before him. He was informed of everything that he had done undA- the joint order. And yet with this information, in no part of his evidence did he state or intimate that the order had not been obeyed. All that he said on the subject, or that the Judge Advocate could induce him to say, was not that that order was not obeyed, but the subsequent one of 4.30 of that day. At the time this last order was received, the ¦ proof is clear and uncontradicted, that Porter was doing everything re? quired by the joint one. Neither Pope nor any other witness testified to the contrary. And yet the Court found the specification true. Such a finding under all the circumstances can serve but to disparage their intelligence in the estima tion of the public. Third Specification. — First Charge. Disobedience of the 4.30 order of the 29th of August. The order was as follows : Headquarters in the Field, August 29, 1862, 4.30^. m. Major General Porter; Your line of march brings yon on the ememj'a right flank. I desire you to push forward into action at. once on 63 the enemy's flank, and, if possible, on his rear, keeping your right in com^ munication with General Reynolds The enemy is massed in the woods in fro of us, but can be shelled out as soon as you engage their flank. Keep heavy reserves and use your batteries— keeping well closed to your right aU the time. In case you are obliged to fall back, do so to your right and rear, so as to keep you in close communication with the right wing. JOHN POPE, Major General commanding, I. It will be seen that this order assumes that Porter's line of march under the joint one, would bring him "on the enemy's right flank" It directs him therefore, when he gets on that flank to attack it " at once," and if possible the enemy's "rear." To do this last, the flank was necessarily to be first turned. So that the order with reference to both the flank and rear attacks, was intended to depend on the contingency of Porter's march under the previous order, bringing him "on the enemy's right flank." As this, however, necessarily involved the line of the enemy's march as well as that of Porter's, and neither he nor Pope could control the former. Pope could not have been certain when he Issued the 4.30' order, that Porter would be brought by the route he was pursuing under the joint order on the enemy's right flank. Pope therefore could not have designed (th,e words indeed of the 4.30 order, negative such a design,) that Porter was to attack, unless his march brought hiia on that flank of the enemy. If it should bring him on the enemy's left or centre, then the order from necessity became inoperative. II. Where then, pursuing as it is admitted he did, the route prescribed by the joint order, was Porter's command when he received that of 4.30 ? The proof is all one way. He was not on the enemy's right flank, but in his immediate front, and where he was in full force. Not only then was the order inoperative, but to have attempted in that position of his troops to have marched them towards the enemy's right flank with a view to attack that, and if possible, his rear would not only have failed, but almost certainly have been followed by serious, if not fatal consequences to hfs command. What was the fact ? Was the enemy in his front, and in force, when he received the 4.30 order ? I. 'At what hour did he receive it ? The Judge Advocate on this, as well as on every other point of doubt, decides so as to prejudice Porter. The rule is otherwise in every system of civilized jurisprudence, and this is believed to be the first case Aft which it has been uflifermly departed from. 64 Facts have not only been disregarded, inferences, the wildest and the most uncharitable, indulged in, but the best estabhshed legal principles, without even a sophistical reason to excuse it, totally repudiated. But when did Porter in fact receive the order ? The Judge Advocate admits that in regard to this, " there is a decided conflict in the testimony." He seems rather inclined to conclude for himself, that it was received about 5^ o'clock. And he suggests that "it maybe that after carefully con sidering all the circumstances, the Court felt that the explicit and intelh gent statements of Captain Pope, and his orderly, fortified by the cor roborative evidence of Generals Pope, McDowell and Roberts, were not overcome by the opinions of the five officers examined on the part of Porter. (P. 309.) But what is the evidence. 1. Captain Pope of General Pope's staff. — He says that he supposes that the distance between Pope and Porter when he got from the former, the 4.30 order was " three miles," and swears that it was in Porter's hands "by five o'clock." On cross-examination, he admitted that he fixed the hour when it was handed to him, by Pope, from the time stated on the face of the order. He did not profess other knowledge of it. He de scribed the road he took to get to Porter, and said that he returned by the same road. (P. 57.) 2. Charles Buffer, the orderly — He fixed the distance between the two Generals, not at three, but at " about _^i;e miles, as near as he could judge from traveUing the road." This is the distance that the Judge Advocate adopts, discarding in that respect, what he calls " the explicit and intelligent statement of Captain Pope." He says that Pope "rode as fast as his horse could carry him, and had but about five miles to travel, and yet according to the theory of the defence, that he did not arrive untU sunset, or half-past six, he was two hours on the way," and then asks with an air of triumphant logical confidence, " is it credible that a staff officer bearing an important order in the midst of a fiercely con tested battle, would have travelled at this rate, and this too when he was conducted by an orderly acquianted with the road, and encountered no obstacle. Is it not much more probable that but a single hour was occu pied, and that in point of fact, he arrived at half-past five ?" (P. 309.) He thus rejects as to the time of arrival, as he had done as to distance. Pope's evidence, and adopts that of the orderly, and yet tells us, that the statements of both, though materiaUy conflicting, were adopted by the Court as being "explicit and inteUigent." He also says that these state ments were "fortified by the corroborative evidence of Generals Pope, McDowell and' Roberts." How this could be, when the statements were 65 contradictory of each other, it is not very easy to comprehend. But let that pass. What is the supposed corroborative evidence ? « 1. General Pope — "I know that an Aid-de-Camp, riding rapidly, could go from the field of battle to Manassas Junction or to any point west of Manassas Junction within an hour by going at speed" 2. Roberts, the disinterested prosecutor of Porter, — he says that he was present when the order was issued, and gives it as his opinion that it should have been delivered "in half an hour or less as orders are generally delivered on such occasions.^' 3. McDowell. — He agreed with young Pope as to the time and place when he says he saw J;he witness. Neither of these officers even profess to know when the order in fact was delivered to Porter, nor at what rate of speed the messenger travelled, nor the character of the road he passed over; and yet their opinions are gravely relied upon as confirming the statements of the messenger and his orderly, although they vitally con flicted with each other. And their statements and their supposed corrobo ration are held sufficient wholly to rebut the positive proof of five wit nesses of admitted intelligence and unquestioned integrity, who were pre sent when the order was delivered, and concurred as to the time. That this would be manifestly unreasonable if the evidence of the two was the same, and if neither was contradicted in any material fact, every impartial mind will agree. But in this instance it is the more obviously unreasonable since Pope is contradicted as to other material facts than the hour at which he says he delivered the order, and II, Duffer, the orderly, disproves the facts on which Pope and Roberts, and the Judge Advocate, base their apinions. Captain Pope stated first, that after giving the order to Porter he returned by the same road by which he had arrived, second, that no one pointed out to him the road on his return, except his orderly. In both these particulars he is expressly contradicted. 1 . By Lieutenant Weld. — In his evidence in chief he says, that he car ried, on the afternoon of the 29th, an order from Porter to General Pope, and adds, I " got back after sundown, — I think it was about a quarter to seven o'clock when I got back, as near as I can recollect." That Gene ral Pope's messenger to Porter (admitted to be Captain Pope) " came afterwards." "I was told to show this messenger the direct road back to General Pope. I did show it to him, and described it, and even drew on a piece of paper the road I had taken, which I afterwards found out was not the direct road ; there was a little variation in it. He could not see the road- he did not seem to understand where the road was, where 5 66 it crossed the rail road. Some one then told me that I had better go and show him where the road was, and I went up to the rail road with him, and Dointed out the road that I had taken." "He started on it." (P. 130.) 2. Lieutenant George T. Ingham, Aid de Camp to General Sykes. Was present, he said, when the order was delivered to Porter, and knew Pope, the messenger: "it was after sunset." That Pope did not re main "there more than twenty or twenty-five minutes at the outside." That after he had left, the witness was sent by Porter to recall him. " I rode on pretty rapidly, and I found Captain Pope had got between a quarter and a half mOe." There were several officers on the road, and I had to ride up close to Captain Pope to see who he was, it was so dark at that time." He further stated that Pope, on starting to return, did not take "the Dudley Springs Road, the road he finally took," but "was bear ing off down the rail road, towards Manassas Junction, and that he then told him to take the left hand road, and that then Lieutenant Weld (the former witness) went down to the road with Pope to show him which road to take." (P. 199.) It will be remembered that Pope had sworn, that he had returned by. the same road that he had come, and that no one had pointed out to him any other. 3. Major General Sykes. — He was present when Captain Pope .dehvered the order to Porter. It was " as near sunset as I can remem ber ; certainly, vrithin & little before sunset, or after sunset." (P. 177.) 4. Locke. — He -witnessed the delivery, and said it was "between sundown and dusk." (P. 136.) 5. Montieth — Was present, knew Pope, and says he delivered the order about "sundown." (P. 127.) AU this evidence, however, is rejected by the Judge Advocate, and, as he teUs us, by the Court, although the witnesses were with Porter when the order was delivered, saw it delivered, and concurred in stating that it was about sundown. Their statements are at least equally " exphcit and intelligent " as Pope's and his orderly's, but they are passed over, and theirs adopted. II. Nor does the corroborative evidence relied upon in support of the latter amount to anything. It consists of mere opinion, whUst the re jected evidence was positive statement of facts, made on personal know ledge. When the order could have been delivered, in the judgment of Generals Pope and Roberts, and how long it would take a messenger to 67 go from the point where he saw McDoweh to Porter's tent, can be but mere opinion. General Pope says an hour. Roberts says a half hour, in no exigency does he fail, the Judge Advocate. But to carry the mes sage within either an hour or half hour they unite in saying that speed was necessary. Pope says it could be done within the time he named, "by going at speed,"— Roberts, in his "half hour or less, if carried "as orders are generally carried on such occasions." Whether it was in fact carried " with speed," or as is " generally" done, neither ventures to say. The Judge Advocate presumes "speed" from the character of the mes sage. He cannot believe it "credible that a staff officer" could he more than an hour in performing such a duty. In his view it is nothing that five intelligent and honorable witnesses swear positively to a later delivery. He, and, as he says, the Court, adopts the statements of Pope and his orderly, not only not corroborated in any manner, but expressly contradicted in the very material fact of the roads travelled coming or returning. The reasoning of the Judge Advocate is that the messenger did what he pro fesses to have done, because he should have done it He also maintains in the support of his hypothesis, that Pope "rode as fast as his horse could carry him." How fast that was depended on the character of his horse and of his orderly's, and the nature of the road. To suppose all horses go at the same pace, and that their speed is irrespective of the nature of the road, is not exactly logical, if experience is to be considered. And in this case, too, to conclude that actual speed was had in the sense in which the term is used by Generals .Pope and Roberts, and the Judge Advocate, is to disregard the evid ence of the orderly. It is apparent that the Court, who alone examined this witness, (he was produced by the Government, after Porter had "rested his case,") would like to have had him prove that great speed was used in the transmission of the order, but in this they failed. He said "sometimes we were on a trot, sometimes on a walk, and sometimes on a canter, going about as fast as we thought our horses could travel. (P. 208.) He was then ask'ed, " how much of the way did you gallop ?" And answered, "that is more than I can tell you. We went as fast as we could from the nature of the road, and as we thought our horses could travel." He was further asked, " do you reinemlier whether you trotted or walked, or galloped the most of the way," and replied "we had to go a aood deal of the way ouite Sloio, on account of the road being very buJ, rough in places." The Court unwilling to abandon their purpose, asked this additional question, "did you gallop any at all ?" And were answered, "yes sir, we did." I recollect galloping sume, in other places we had to go quite slow. (Pp. 209, 210.) The speed, therefore, required, in the judgment of Generals Pope and Roberts, for the delivery of the order by five, or five and a half o'clock, was not used, unless to travel "a good deal of the way quite slow," as 68 proved by the orderly, and not disproved by young Pope, is to go with speed. It is not only true, therefore, that the preponderance of evidence shows that the time of the delivery of the order was about sunset, but that there is not any reliable evidence to the contrary. Even however, if the first part of the remark alone was correct, the Court should have found the fact, that the delivery was at that time. They had neither the legal nor moral right to find it otherwise. Where witnesses are equally intelligent and fair in character, the testimony of the greatest number is to prevail The probabilities of mistake, (designed mistake in such case being impossible,) are less likely with many than a few. The Court, con sequently, in pursuing the course attributed to them by the Judge Advo cate, violated both legal and moral principle. In addition, however, to the distinct proof of the five witnesses, which was made to yield to that of the two, though one of the two was positively contradicted, and the evidence of the other but served to confirm that of the five, there was before the Court in regard of the transmission of other orders in which no error was intimated, evidence that strongly confirmed that of the five. It is this : The order of 3 A. M. of the 29th was not delivered until 6 A. M., 3 hours, though the distance was but five miles. That of 8-30 P. M. the same day, not until 3 A. M. of the 30th, 6^ hours — distance yoMr miles. And another of the 29th of great importance, (p. 28,) was three hours in its delivery, and one of 8.50 P. M. of the same day, (p. 7,) was 6 40 A, M. Neither of the officers who bore those several orders, were reprimanded by Pope for delay. Nor could they have been, justly. The roads were very bad, and comparatively unknown, and the horses much broken down by prior hard work. Speed, of course, was impossible. It cannot be necessary to pursue the inquiry further. The order, then< having been received about sun down, or as General Sykes says, " certainly within a little before sunset, or about sunset," I. Was it obeyed ? And II. If not, why not ? The proof is distinct, that the moment it was received. Porter sent an order to MoreU, who was in the advance, to attack the enemy. 1. Locke says. Porter handed me the order, and "very soon after wards ordered me to ride up to General Morell, and direct him to move forward and attack the enemy immediately, and to say, that he would be up himself right after me." (P. 136.) 69 2. Morell says, that soon after sunset, Locke " came to me with aa ordier from General Porter to make the attack, (he had been preparing for one under a prior order.") " I told him, (and I think in my message to General Porter, I spoke of the lateness of the day ) that we could not do it before dark." (P, 147.) This order was afterwards, apd in the judgment of MoreU, properly countermanded. He thought that the day was too far advanced, and the enemy too well and strongly posted in the front, and in too great force to justify the attempt. In this opinion all the officers in the command concurred. Colonel MarshaU, as will be seen presently, most decidedly. The Judge Advocate states, that "by the inaction" of Porter's com mand, and by its "falling back," (a charge before reputed,) "the enemy had been so far encouraged in their advance, that at this hour, the front of (Porter's) column was not separated from the advance of the rebels by more than a mile, or a mUe and a half" and that " little time therefore was required to make the attack." He fails, however, to inform the Pre sident, what is evidently true, that the joint order of the 29th from Pope, was designed to prevent the- junction of Longstreet's corps, supposed to be 24,000, and Jackson's 25,000. That it was for that purpose, that Pope, by that order, united the commands of McDoweU and Porter. Before McDowell separated from Porter, he had read General Buford's note to General Ricketts, as appears by his evidence. (P. 83.) That note was dated at 9.30 A. M. on the 29th, and stated that "seventeen regiments, one battery, five hundred cavalry, passed through GainesviUe three quarters of an hour ago, on the CentrevOle road. I think this division should join our forces now engaged at once. Please forward this." (P. 84.) He also said the regiments averaged 800 men. Buford, at the time he sent this note, was at Groveton, about four mUes from Gainesville. The proof is most conclusive that it was Longstreet's corps that Buford referred to, and that it was that corps which jvas in the immediate front of Porter. If it was, as is supposed, the pur pose of the joint order that an attack should be made to prevent the junction of Longstreet and Jackson, by the blended commands of Mc Dowell and Porter, it should have been made at that time. Instead of this, McDowell, who being the senior in rank, had the control of the whole force, retired with his own corps, taking with him a division of Porter's (King's,) and repaired to a distant point, which he was several hours in reaching; and where he was beyond a supporting distance from Porter. This is alluded to under the present head, to confirm the state ment before made, that prior to his withdrawing and reducing by more than one-half, the force which Pope had assigned for the attack, and leaving Porter with an enemy over double his own force in front, he never gave Porter an order to make the attack. This conclusion is necessary 70 to exempt McDowell from the imputation of reckless foUy, gross military ignorance, and a disregard of what he must have known was the design of the commander-in-chief It was in this condition of his force, that Porter received the order of 4,30. And as already appears, he gave orders, without the least delay, to make the attack; and abandoned the purpose afterwards, because of the approach of night, which made it, in the judgment of Morell, as well as in his own, impossible to make an effective one. It is asserted by thtf Judge Advocate, that there was not an "earnest or vigorous effort on the part of (Porter) to obey the order." Morell says, as has been already seen, that the moment he received Por ter's order through Locke, he proceeded to place "the men in position to make the attack." And Locke says, that the moment Porter received the order, he carried one from Porter to Morell to attack, " at once." The Judge Advocate assumes that there was but a smaU force in Porter's front, and rests for his assumption, principally upon the testimony of General Roberts. It is sufficient to say, in relation to his evidence, and to show how totaUy unworthy of consideration it is in this particular, that he does not pretend to have seen Porter's position on that day, later than "about one o'clock." He could not therefore have seen the position, or had any information of the strength of the enemy in Porter's front, later than that hour. Nor does he pretend to have been nearer to it, at any -time of the day, than " a mile and a half" He says, too, " I could not see his command, there were woods intervening," nor could I " see his im mediate front." (P. 215.) And yet, although it was literally impossible that he could have any information to justify it, he gives it as his opinion that there was " only a cavalry force with some light artiUery," in Porter's front. And yet, more strange is it, that the Judge Advocate adopts this opinion in preference to the testiraony of Major Hyland, attached to Colonel Marshall's regiment of skirmishers, and who was eight hundred or a thousand yards in advance of Morell, and near the enemy, of Lieut. Stevenson, of Colonel Marshall, Morell, and of every other officer ex amined, who was with Morell's command on that evening. Under the circumstances, his criticism upon the testimony of Stevenson, that " he was a young man with limited experience," is amusing, when it is remem bered with what confidence, he relies upon the testimony and opinion of young Pope, Smith the orderly, and Roberts, with his admitted ignorance of the facts upon which he gives his opinion. The reliable evidence upon the point which was rejected by the Judge Advocate, is however, con clusive. 1. Major Hyland. — He belonged to Morell's division, and was on the evening of the 29th in "the front of it." That his regiment was at the time, "employed as skirmishers," "from about one o'clock of the after- aoon of -the 29-th, until daylight of the next day. That the 22d Massachu- 71 setts, and Berdan's sharpshooters were placed on our left in the evening.'^ Ihat the enemy "commenced forming between two or three o'clock," in our front, "there appeared to be two columns of them." The witness mdicated the position of his regiment, and the enemy on the map, which was before the Court. That no portion of the enemy was on the left of his regiment. That he knows of their forming to attack (Porter's force) during the day. He ¦¦ could hear the commands plainly as if forming in hne," and "the movements of their artUlery coming into position." On cross-examination bythe Judge Advocate, in answering this question with reference to the number of the enemy, " can you state how many thou sands, or divisions, or regime.nts ?" he answered, " I could not state the number of thousands, or divisions. I judge from the movement and from the commands given, that there was a very large force indeed, probably a larger force than we hud." He reported the force to Colonel Mar shall, his commanding officer. He further stated that he thought it " was sufficient to have made a successful resistance to General Porter's en tire corps." Although unable to state with accuracy, the number of the enemy, he yet added, that "from what information I had, and from what I could get from the other officers, I thought their force was very heavy indeed I should think there were probably 10,000 troops in front of us. Judging by the columns of dust that I also saw coming from the same direction." And in reply to a question by the Court, he stated that in his opinion " the strength of the enemy," in Morell's front, was increased by the "strength of their position." (Pp. 174-176.) 2. Stevenson, of the 13th New York Volunteers, MarshalPs regiment. On the 29th, he went on horseback " from the left flank of General Pope's army to the position then occupied by " his regiment. That the distance was " between a mile an-d a mUe and three quarters." That he was almost an hour in travelling it, and reached his regiment " between one and four ¦o'clock in the afternoon. That when he got there he could "seethe enemy," and "judge him to be about between 12,000 and 1.5,000." That he could " see his forces of different arms, infantry and artillery, " and could see that "he was receiving reinforcements." 3. Colonel E. G. Marshall, of the 13th New York Volunteei-s, was with his regiment on duty with General Morell's division, on the 29th. ''About one o'clock, I was detailed by General Porter to go with my regi- mcHt across an open country and a ravine, to some timber that was facing «ur line of battle, and deploy skirmishers to find out the position of the enetny, and anything else that I could find out concerning them." They were "a very large force, and they were drawn up in line of battle as ihey came down." After describing the manner in which the enemy ap proached, and saying that he deemed it so important, that Morell should 72 know their position, Ihat he vS^as unwilling to trust his orderlies or others with messages, he said that he repaired himself to MoreU to confer with him " concerning the enemy " "This was about dusk." Upon hearing from Morell, that he had orders from Porter to attack the enemy, and finding that Morell was much troubled concerning it, and that he "asked my advice," says, " I told him by all means not to attack, that it was certain destruction for us to do so, THAT I for one did not wish to go into that timber and attack the enemy. Their position was a very strong one, and they were certainly in force at that time, twice as large as our OWN force, all of General Porter's corps." He also said, "that if we had attacked them, I felt that it was certain destruction." "After wards, at dark, I was sent for by General Porter, and questioned very stringently with reference to the enemy ; and ray remarks to him were the same as I am now making, and as I made to General Morell. (Pp. 189, 190.) The force of the evidence of this last witness, the .Judge Advocate attempts to avoid by asserting, that he was " largely influenced in form ing his opinion from the clouds of dust which (the Judge Advocate says, not the witness,) may have arisen as much from the movement of ambu lances and wagons as from the march of troops. The witness in answer to this question of the Judge Advocate, " did you make your estimate of the amount of that force principally from the extent of the line as indi cated by the clouds of dust, or had you other means than that of judg ing ?" Said, " my estimate was made mostly from the length of time, which they were coming down — there appeared to be artillery and in fantry — and the time that we were attacked, and also from what I had seen of the enemy's dust prior to going on this duty, and the length of their lines, as much as I could see of it in our front " There is no foundation, therefore, in fact, for the criticism of the Judge Advocate. Of the intelligence, integrity, and patriotism of this witness, the Judge Advocate does not even insinuate a doubt. Nor does he question his military capacity. He was a Captain in the regu lar army, and for his ability and gallantry was made Colonel of his regiment. His gallantry was greatly displayed in the then recent battle of Fredericksburg, where he was severely wounded. The Court repaired to his chamber, where he was confined, and there took his testimony. To discard the evidence and opinions of this witness, and of Hyland, and Stevenson, and to adopt the ridiculous opinion of Roberts, — ridiculous, because founded in ignorance, as he admitted, of the facts, is an insult to the understanding. ' It being then clear, that it would have been madness in Porter, to have attacked the enemy, who were in his front, at sunset on the 29th, and equally clear, that to have done so would not have been justified by the 4.30 order, but on the contrary, would have been a violation of it, as it -73 directed him to attack "the enemy's flank,'and if possible his rear:" let ns see whether when he received it, he could have made such attacks ? At that time there was, as proved hy iMarshall, and the other witnesses re- lerred to, in Porter's front, a force of the enemy twice as great as his own. To have reached their flauk he must have marched in front and to the entire distance of the enemy's line. Their force consisted of infantry, cavalry, and artillery. With this force they could have assailed him in every foot of his progress, and readily have attained a position in his own rear, which must have ended, in all human probability, iu his annihilation, and if so, in the destruction or capture of Pope's army. But, in addition to this, the country over which he would have had to pass, was so broken and filled with ravines and timber, that it would have been impossible, in the darkness which then prevailed, to have moved his infantry in anything hke order, and utterly impossible to have moved his artillery. To have left the latter behind him would have subjected it to certain capture, and would have been a direct violation of the order, as that directed him on his march to "keep heavy reserves and use your batteries." The Judge Advocate says, " it may be admitted, and perhaps the testi mony requires the admission to be made, that falling upon the enemy on the afternoon of the 29th, (Porter) would have encountered both diffi culty and danger," but adds the very original remark that "difficulty and danger in time of war are daily and hourly in the category of the soldier's life. Their presence should be for him, not a discouragement, but an in spiration To grapple with them should be his ambition, to overcome them, his glory." (P.- 312.) Without meaning to call into doubt the capac ty of the Judge Advocate to judge what would be a sol dier's ambition or "glory" in such an exigency, it is certainly not dis courteous to him, so say that such soldiers as Hyland, Marshall, Mo reU and Porter, who saw the diffculty and danger, are judges more to be relied upon. In comparing in this particular the Judge Advocate with Porter, no disparagement is intended of the former. When he shall have been in as many battles — shaU have conducted himself with as much skill and valor — shall have won the same grateful applause — have re ceived such signal manifestations of approval from the Government — have done so much to fill the whole measure of a soldier's ambition and glory, he will then, and not before, have a right to be heard with respect, as to what, in any particular instance, should be a soldier's ambition and glory. Let us, however, examine what was the extent of the " difficulty and dan ger" which the Judge Advocate admits to have existed. In considering this 'question, the Judge Advocate accepts the least and rejects the most satisfactory evidence He relies on the opinions of Lieutenant Colonel Smith and McDoweU, formed in ignorance of the country to be passed over, or of the length of the march, and of the force of the enemy in Por ter's front. That such opinions are entitled to no weight, must be obvious 74 to every fair mind. In a court of justice, were the principles of evidence are apprehended and impartially applied, they would be promptly rejected, and the counsel who endeavored to maintain them, lose reputation with the bench and bar. The reliable evidence is this : 1. General Reynolds. — He had passed over the country on the 28th with his command, and says he found it " so broken, wooded, and ob structed that^ I had to turn into a road leading along the rail road from GainesviUe to Manassas Junction, and finally marched on that road in one column, around to Bethlehem Church, towards the old battle field of BuU Run, late in the evening," That the country between New Market' and Groveton was " very broken by ravines and wooded ; I wUl state that I know that from having passed over it on horseback that night, from somewhere in the neighborhood of New Market over to the Warrenton Pike, near Groveton." In his judgment, a command could not have "passed over that country in force with artillery in proper order to face an enemy, if it had to "move in the immediate presence of an enemy." On cross-examination bythe Judge Advocate he was asked, "you say that a command with artUlery, etc, could not have pas,«ed over the coun try between }fiew Market and Groveton, in the imraediate presence of the enemy : was not the ground equally bad for the enemy as for General Porter? And if the enemy could take position there why could not Gen eral Porter's troops have taken position against them ?" And answered : " It ivas impossible to manoeuvre troops over that country." They could take position there, of course, and they could be attacked in position by troops. But it would have been very difficult to have got artillery up through that broken country, and a very disadvantageous attack would have been made." He was afterwards asked: "did you or not pass over the country stretching from your left towards General Porter's posi tion, on the 29th, while on the march from GainesviUe towards Manassas Junction?" And answered: "not with my command." "Did not the enemy, in attacking the left and rear of General Pope on Saturday, 30th of August, pass with artillery and infantry much of the country that General Porter would have had to pass over on the 29th to attack the right of the Confederates?" He replied, " I think not; I think it had gotten in, as it were, between that broken country and our position on that day, occupying a ridge which crossed the turnpike there, and having the bro ken country behind him. Because I manoeuvred the day before, 29th, all over, up to that broken country, and got partially on that ridge with one brigade." The Court, evidently unwiUing to abandon their desire to show that Porter could have made the attack, not satisfied with this answer, put to the witness this additional question. "Could so large a force as passed around your left on Saturday, have done so without passing over a long distance toward where General Porter was ?" And received 75 this answer: "He had the Warrenton Turnpike open for him, and by coming down that turnpike, he ffied in off that turnpike, as I supposed, though at a different point, through this broken country. He had that aavantage in coming down and occupying this ridge," (Pp. 170-173.) 2. Morell—Thia inquiry was made of him : " Seeing your own posi tion and that of General Porter's command, so far as you knew it, at the period of the day in question, between sundown and the gray of the even ing, and seeing aU that you knew and believed of the position of the enemy at that time, please to state whether an attack by General Porter's command upon the right flauk and rear of the enemy at that time was possible." And answered: "the only attack we could ±ave made at that time would have been directly m front. The firing of which I spoke was far to the right, and at that time we could not have got there. The troops of the enemy in front of us were under cover iu the woods. If we had moved forward we would have gone over this open space, where our men would have been exposed to the fire of the enemy, without any possibility of effectively returning it." "Such being the case, as to a movement on your left to attack the enemy by flanking him on his right, please to state whether you could have passed through the woods on your own right in any good order to attack the enemy in that direction ?" "I doubt whether we could have got our artillery through, even by daylight. We might have passed through the woods with our infantry, but not in any fighting order at all." " Would it have been possible to carry your artillery through that wood by night. " A?o .sir- ,• I think not. (P 147.) The force of this testimony was not attempted to be weakened by the examination of either the Judge Advocate or the Court. The intelli gence of the witness, and his well known high character, would have ren dered such an effort fruitless. 3. Marshall. — "Was it possible, (he was asked,) without the greatest danger, for General Porter to have made a movement to his right to attempt to reach and attack Jackson on his right?" "No sir; it was impossible to have done so. In the first place, it was impracticable to cross the country in that position during the day. Again, we would have been obliged to have whipped the very force in front of us, large as it was, to have got there, and it was very doubtful if we could-have done it." He also said, that if Porter had " attempted the movement," the enemy "would have attacked our flank." The Judge Advocate did not think it prudent to examine the witness at all upon the point, but the Court were less cautious. They asked whether, "from the position of the forces, both those of the enemy and our own, would the march of General Porter, to 76 reach the right flank of Jackson, have been direct or circuitous " And were answered : "It would have heen circuitous, through a broken country. If he had endeavored to go the most direct route, it would have been through a broken country. But I do not conceive that it was practicable for him to have gone that route. I think that in order to have acted upon the enemy he would have had to go back the same route we took the, next morning in retreating." "Not practicable, (the Court further inquired,) because of the character of the country or the position of the enemy ?" And were answered : "Because of the broken country; it was rocky, and then a part of it was very heavily timbered, and it would have been impracticable to to have carried artillery through there, besides being fired upon and met by the eneniy in our front." (Pp. 191-193.) There was other testimony to the same effect, but it is unnecessary to give it in detail. It is submitted with perfect confidence, that this evi dence is conclusive to show- that the order of 4.30, which alone forms the subject of this specification, could not have been, at the time it was re ceived, executed. In this opinion all of Porter's officers who were acquainted with the condition of things concurred. Under these cir cumstances, if Porter had made the attempt to execute the order and had been, as he certainly would have been according to this testimony, defeated with great, if not total loss, he would have committed a most serious military offence, for which he should have been, and no donbt would have been, held responsible and severely punished. If that had occurred, too, judging from the treatment he has received, no one can doubt that the failure of Pope's campaign would have been attributed to such rash and unmilitary conduct. How ridiculous it is to reject the evidence of the above named officers; and how insulting to the intelligence of a reader, to ask him to put faith in the opiuions, not statements of facts, of Smith and McDowell, given in admitted ignorance of the facts which rendered a compliance with the order impracticable. Smith's opinion is based, as he states, " on the fact that that portion of the country over which (as he understood it,) the corps of (Porter) would hav.e moved upon the enemy, "was sufficiently practicable to enable the enemy, as they did, to make a .similar move ment on our left on the next day." (P, 77 ) The Italics are the Judge Advocate's. Not only did he omit to inform the President, what in fair ness he should have done, of the evidence here given, but to advise him that the fact on which Smith's opinion was formed, was not true. That Reynolds had proved that the enemy's movement on the 30th was not over the ground which Porter must have passed on the 29//i, to have attacked their right flank. And McDowell's opinion was based upon the 77 same misapprehension, and only upon what (as he said) was his "know ledge of the country, derived principaUy from having gone over the rail road from Mannasses to Gainesville in a car, or on a locomotive, which gave me but httle idea of it, as I was engaged whilst going over with matters which prevented my paying attention to the country," And upon several other tacts, for the most part immaterial, and unknown to him except upon hearsay. (P. 93.) The Judge Advocate seeks to aggravate Porter's supposed offence by stating with entire confidence, that if the order had been obeyed it "would have secured a triumph for our arms, and not only the overthrow of the rebel forces, but probably the destruction or capture of Jackson's army." He states that this would have been the result if a vigorous attack had been made by Porter " at any time between twelve o'clock, when the battle (between Pope and the enemy) began and dark, when it closed." And for this he refers to the opinions of Pope, Mc Dowell, Roberts and Smith, "all of whom participated in the engagement, and were well qualified to judge." This confidence is somewhat amusing, when it is remembered that Pope and McDowell never achieved a victory, Roberts no one thought could ever achieve one, and Smith was a volun teer of but a few months standing, and never before under fire. But, waiving this, how totally immaterial are those opinions when the proof is clear to the, dullest comprehension, that the attack directed by the order, when that was received, could not have been made, and when there was no prior order stated in this specification, or either of the other two under the first charge, directing an attack to be made at aU. First, Second and Third Specifications or the Second Charge. These will be considered together. They are framed under the 52d Article of War, which embraces " misbehavior before the enemy." They charge Porter with such misbehavior on the 29th. It will be seen that this concedes that there was no order from Pope to make an attack on that day. This charge h-as been substantially anticipated. It has been proved conclusively, that no attack could have been made, except with the almost certain result of serious defeat, if not, destruction. Either oP which would have been fatal to Pope. Nor is the fact true upon which the Judge Advocate relies, that during the time from twelve o'clock to sunset on that day, a severe battle was raging between the rest of Pope's command and the enemy, within the hearing of Porter. On the contrary, the officers, all of them who were with Porter, agreed in stating that the battle appeared to be mainly with artillery, and at some mUes from his position. That Porter had no reason to believe, and did not believe that an attack liy him was necessary for Pope's safety or success, appears by his order to Morell, brought out on the cross-examin- ation of the Judge Advocate, and received about sunset, or a little before 78 sunset. (P. 150.) That order informed MoreU " the battle works well on our right, and the enemy are said to be retiring up the pike." This reply has assumed dimensions greater than was anticipated. It was found unavoidable however, from the necessity of giving in detail many portions of the evidence. The object of the writer was to expose the injustice done Porter by the Judge Advocate — to rescue him from the influence of the reputation of that officer; and to demonstrate to the public the gross wrong done hira by the Court, and unconsciously, as is thought, from misplaced confidence, by the President. In this he cannot have failed. He thinks that in the public judgment when the case is fully understood, th^finding of the Court wUl be considered to be without ex planation, except upon the ground of mental imbecility or blinding prejudice. The first, certainly did not exist. The latter is beheved to be established. With a view to avoid this last conclusion, one which the Judge Advo cate appears to have anticipated, he ventures (and in so doing, greatly compromises his legal reputation) to say, " it is not believed that there remains upon the Record a single ruling of the Court to which excep tion could be seriously taken." Those ruhngs are on pages 17, 21, 24, 39,41,51,71,96,214,221. There were several others which Porter's counsel considered erroneous but omitted to except to them, in order to save time, and from their then having no hope, that anything they could say, would change the rulings. These involve two propositions — 1st, whether it is competent for a witness to state his opinion upon the meaning of orders written or verbal, and 2d, whether, when the prosecution with a view to show the alleged criminal animus of Porter, had given in evidence his telegrams and con duct, on the 27th, 28th, 29th and 30th of August, it was not competent to Porter, iu order to disprove such animus, and to show his loyalty and his determination to do his full duty before getting, and after coming under Pope's command, to offer in evidence his telegrams, and conduct on the 25th, 26th, 31st of August, and the 1st, 2d, and 3d of September telegrams, constituting a series, of which those offered by the prosecution, were a part. I. Without stopping to inquire if a decision on this head was correct, which either admitted or rejected the evidence, all will agree, that to admit it in some instances, and reject it in others, cannot but be errone ous. And that is just whatwas done by the Court. When Porter asked the opinion of a witness, the question was objected to and overruled. When the Judge- Advocate, or any member of the Court, asked such a question, though objected to by Porter, because the same privilege was not aUowed him, — the objection was overruled, and the evidence received. 79 The Record will show that this was uniformly the case. Its evident par- tiauty and palpable injustice, renders further remark unnecessary. II. To exclude statements and conduct made, and occuring a day or two before and after the date of those relied upon to establish Porter's criminal animus when offered to explain the latter, and to disprove such animus, is an error so gross,, that it is amazing how the Court, though not lawyers, could have faUen into it, and more amazing how the Judge Advocate could sanction it. The admissibility of the evidence, is proved, clearly, it is thought, in Porter's protest, appendix. No. 1. But notwithstanding the finding and sentence of the Court, and its approval, and the malignant and bitter assaults upon him, before and since, Porter wiU stand unharmed through the potent power of truth and the public judg ment. The latter ever cheers the patriot, and sooner or later frustrates the aim of the demagogue and palsies the arm of the traitor. In addition, too, to this support, he possesses in himself one even yet more potential. He is self-sustained in the consciousness of innocence, and conviction of duty fully performed. What shield against injustice is more invulnerable ? It abides with the injured at all times and everywhere ; consoles hira in adversity — en hances his prosperity. It is an adjunct to truth and justice, an antidote to falsehood and calumny, and in the end is certain to bring their authors before the public in full relief, to be the scorn or the jest of the honest. The friends of Porter, therefore, need feel no further concern for him. He and his accusers stand for judgment before a just and enlightened tribunal, and what fair mind can doubt the issue ? But we must all feel deep solicitude for the country, now passing through a dreadful crisis. No people was ever subjected to a more perUous one. But this solicitude is not because we doubt the result, if the Government is true to its own duty. If it is, the danger wUl soon be over, and who can doubt that it wih be. If keeping a single eye to the extinction of the rebeUion in conducting the war, they discard mere party, cast off intrusive and ignorant politicians, observe in the loyal States, where the ordinary course of justice is unobstructed, all the con stitutional guarantees of personal liberty, recognize every individual right, regard freedom of speech and of the press, (a freedom which the people wUl never suffer to be impaired,) restrain the excessive enthusiasm or madness of misjudging officers, instruct them that it is their duty to war with the rebel enemy alone, and to observe in so doing aU the humane rules of the modern laws of war, suffering no harm to be done to private property, nor the appropriation of it for other than military purposes, cease to foster the incompetent, and in an enlarged and enlightened statesmanship, sword in one - hand and the olive branch of forgiveness, eoncUiation and compromise in the other, (the enemies are onr brothers, 80 and we but seek to bring them back to the common household,) all will ere long be well again. The rebeUion now so shaking the land, like as "Ocean's mighty swing. When heaving on tempest's wing. It brealis upon the shore," wUl have subsided, and before the historian shaU have written its history, even its vast wrecks of material wealth, and its vaster and more distress ing wrecks of former harmony and affection, will have been forgotten in the magnitude and universality of the blessings in which the whole land will then be rejoicing. Nor portentious of destruction as is the black cloud that lowers o'er us is there serious ground for despondency, much less despair. A benefi cent Providence cannot design so to afflict us, and, through us, the world. Great as our national sins may have been, and deserving of punishment, as they no doubt are, it cannot be that such a Being will strike a nation like ours out of existence. Protected and regulated freedom is so impor tant to human happiness, that, if we may, with reverence, speculate on such a subject, it must be within the scope of Heaven's design to secure it to all. And in the past what has contributed more to that result, than our example ? With institutions resting as their sole foundation on indi vidual liberty, we have by its inherent and almcst magic power prospered as never people prospered before ; so unexampled and striking has this been that all nations looked at us with wonder — the rulers of some with envy — the oppressed, everywhere, with hope and gratitude. Is such an example to end forever ? Believe it not. If, however, in the inscrutable dispositions of heaven it is so to be, and we are hereafter to live but in memory, of one thing we may rest assured, that that dire calaraity will not be caused by the fulfillment of the object of this rebeUion. That object, even ostentatiously and shamelessly avowed, is not to vindicate and maintain freedom, nor even to rescue human slavery as it at present exists, in some of the States, froni the hazard of a possible early overthrow, but to extend and perpetuate it through all time. In the very City and State of their nativity,, and which for so many years were guided, benefitted and honored by the wisdom and presence of Mason, Jefferson, Madi son, Marshall and Washinoton, in defiance of all the doctrines which they inculcated, and shocking the world by their astounding and ini quitous degeneracy, it is proclaimed, without rebuke, and no doubt by the authority of hira who sacriligeously holds out Washington as his model, that the main object of the rebeUion is to establish a Confederacy which wUl be "A distinct reaction against tue whole course of the mis taken civilization of the age." "That for liberty, equality and fraternity they have deliberately substituted slavery, subordi- 81 NATION AND GOVERNMENT. ThaT HOWEVER AMONG EQUALS EQUALITY IS EIGHT, AMONG THOSE WHO NATURALLY ARE UNEQUAL EQUALITY IS CHAOS." HAT THERE ARE SLAVE RACES BORN TO SERVE, MASTER RACES BORN TO GOVERN." Siich are the fundamental principles (what a profanation of the term,) which, addressing themselves to the universe of man, they say, " we inherit from the ancient worid, which we lifted up in the face of a ¦perverse generation, that has forgotten the wisdom of its fathers." (Spirits of the great departed, let us hope that you do not hear the vile calumny !) By these principles we hve and by their defence we have shown ourselves ready to die ; reverently we feel that our Confederacy is a God sent missionary to the nations with great truths to preach." "And who hath ears to hear let him hear."* No, no. Through such an instrumentality God will never work our destruction. He libels deity who for a moment credits it. An honest man might as soon be suspected of effecting an end by fraud, perjury or murder. There is then no reason for despair. The rebeUion will not triumph. Its fate is already sealed. The lamentations over its anticipated early death are heard in the wailings of the conspirators. The much boasted army of Lee has been arrested in its recent invasion of Maryland and Pennsylvania by the unsurpassed bravery of the Army of the Potomac, handled with consummate skill by Meade, the gentleman and soldier, and driven back, with terrific slaughter, to its own impoverished and desolated Virginia, stealing away at night, under the cover of darkness and storm, in the demoralizing fear that the arm of the Union was approaching utterly to crush them. Vicksburg and Port Hudson have fallen, and the States of Louisiana, Tennessee, Kentucky, Western Virginia, Maryland and Mississippi are ours, and the Father of Waters knows no standard but the Stars and Stripes. The very leader of the conspiring band, for years the plotters of the treason, is losing heart. In the beginning of his wicked career, he ridiculed the power of the loyal States, and vauntingly threatened them with the feeling of "Southern steel" and "the smell of Southern powder." Now, he stands conscience stricken and appaUed. He sees, and weU he may, the finger of God in their dreadful reverses, and caUs upon his deluded and ruined followers "to unite in prayer and humble submission under God's chastening hand." He teUs them that they are to attribute their trials and afflictions to their forgetfulness of Him, and to their "love of lucre," (what an admission for proud chiv alry,) which had "eaten like a gangrene into the very heart of the land, converting too many of them into worshippers of gain, and rendering them UNMINDFUL OF THEIR DUTY TO THEIR COUNTRY, TO THEIR FELLOW MEN, AND TO THEIR GOD."t ¦*¦¦ See Eiohmond Examiner, May, 1863. f Davis' Fast-day Proclamation of the 25th of July. 82 To their country 1 How could he have ever even dreamed that forget fulness of duty to country, to fellow man and God would not meet with the chastening hand of heaven ? Davis, the educated and often honored chUd of the Union, over and over gain pledged by solemn oath to sup port it, is at last aroused to a sense of the guilt of oaths violated and duty to country forgotten, and on his knees implores the forgiveness of Omnipo tence. What stronger evidence could there be that despair of success of his criminal career now fills his very soul ? It has, too, in its very form of government, the seed of its own certain dis solution — secession is made the vital principle of its organism. No Govern ment is certain of living a day, but, on the contrary, is certain of a speedy death under such chronic and ever active disease. Whilst it defies cure, it is certain sooner or later to produce death. And before a single nation has recognized its legitimate existence, the disease has manifested its fatal nature. Georgia and North Carolina have already disputed the Confederate authority, and threatened withdrawal under the acknow ledged theory of secession. So alarming has the threat become, and so obviously fatal to the Confederacy, that notwithstanding its constitutional recognition of the right, it has been denied in serious debate in their Con gress, and the insubordinate members menaced with the exertion of the central military power. Our own downfall then, if ever, is not to be now. The rebellion will be put down. If not by force, as it may be, if our rulers are equal to the emergency, and as it is believed it will be, it will fall through the very feebleness of its form of Government. Fall it wiU. Fall it must, and the United States be restored to the condition in which our fathers left it. A nation of which its citizens can speak with an honest pride as being destined to make "the world its debtor by its dis coveries of truth and example of virtuous freedom." APPENDIX, Washington, D. C, December 26, 1862. With all proper respect for the ruling of the Court on Wednesday, refusing the accused the right to give in evidence the telegrams and messages he then offej-ed, dated before and after the 29th of August, (that is to say, from August 22 to Sep tember 1, 1862,) lie begs leave to enter on its proceedings this protest. The accused is charged, amongst other things, with having disobeyed the several orders stated in the specifications of the 27th' August, 1862, 29th August, 1862, (4.30 p. m.,) and 29th August, 1862, (8.50 p. m.,) and the prosecution has endea vored to prove that such disobedienoe was hy design, because of a fixed purpose on the part of the accused not only not to co-operate with the general in command in the existing campaign, but to fall in his duty in that regard. With this view, certain papers, being a part of the same series of telegrams with those rejected, were offered hy the Judge Advocate, not objected to by the accused, when the purpose for which they were offered was stated, and received hy the Court. And with the same object the opinions of the witnesses, Eoberts and Smith, founded, as they said, on what they represent to he the manner and conversation of the accused, and also on what the first said he heard from another that the ac cused -would fail the commander-in-chief. In the words of the Judge Advocate, this evidence was produced to show the animus of the accused towards his chief, and in that aspect was admitted hy the Court. The accused respectfully maintains, that If evidence of that description, for such a purpose, be admissible (as he concedes it is) it is equally admissible, and is his right, to show by his conduct just before, at, and after he came under the command of General Pope, hy what he did and by what he said, orally or in writ ing, that the asserted purpose — the aUeged animus — is wholly untrue ; hut that, on the contrary, his real purpose — his real animus — from the first to the last, was to do his whole duty to tlie utmost of his ability, and render his general and his country all the aid in his power. rf the prosecution had contented itself with exhibiting the orders in the spe cifications which he is said to have disobeyed, and given evidence of the fact of disobedience, the accused is advised that, even then, the proof which the Court has ruled out should have heen received. But when, not content with that course, it has attempted to prove his mental purpose— to fathom his mind— to show that from personal grudge to his general, or other cause, he designedly disobeyed such orders, he is advised that the evidence rejected is clearly admissible The o-eneral rules of evidence are the same in courts-martial as in other Courts. They a^e based on principles of universal application, and which, as experience has demonstrated, are best calculated to ascertain thetruth. One of these, as well settled as any known to the law, is that where a mental intent with which an act iB done is in Issue, the acts and declarations of the party a few days before, at, or 84 a few days after the time when the intent is charged to have existed, hearing on such intent, may be given in evidence by either party. This is a familiar rule in cases, amongst others, of acts of alleged bankruptcy or insolvency, change of re sidence, and of many acts of alleged fraud- In the first, whether the act charged as an act of bankruptcy is one or not, often depends on the intent with which it is done ; and what the party did before or after is constantly admitted as legitimately illustrating- the actual intent. In the second, whether a man has changed his residence often, also depends on intent. He may have removed, to remain permanently or temporarily ; and what he has done or said before and after removing is- allowed to prove or disprove intent. In the third, whether the imputed fraud was perpetrated or not, often depends on intent unexplained. The mere act itself may appear criminal or innocent. It is the purpose which gives it its actual character, and this purpose may he shown by either party, by acts and declarations of the person charged before and after the period of the impeached act. This principle, I am advised, is fully settled, not only in all the elementary writers on evidence, hut hy the Supreme Court of the United States in, amongst other cases, that of Wood vs. United States. — (16 Peters, 362.) And it is respectfully hoped that the Court will, on further consideration, see the justice of the rule. Its justice is strikingly illustrated in this instance: the ac cused is charged with the dishonorable, traitorous purpose of having disregarded the orders of his chief, to gratify some supposed personal dissatisfaction with him, wholly reckless of its consequences to his country. He is charged with having caused the defeat of our arms, and hazarded the safety of the capital, under the same degrading impulse. One of the witnesses has sworn, without objection from the Judge Advocate or the Court, that a deceased ofiicer of chivalrous character and spotless patriotism had declared to him, before the date of either of the orders, that the accused would fail his chief. Another has stated, also without objection, that his conduct and manner in his presence were such that he was satisfied that he was a traitor, and that nothing hut the fear of human laws prevented his killing the accused on the spot. This evidence was offered and received to show his animus — his intent. Proudly conscious of his innocence, and knowing the base ness of the calumny, he did not object to its introduction, being perfectly willing to let it all go for what it is worth. But to deny him the right, after it is received hy the Court, to meet it by proving what is wholly inconsistent with it — acts of duty about the same period, orders, and messages, haviag no possible purpose hut a faithful discharge of duty to his chief and his country — it is submitted is a viola tion- of the rule of evidence, and is to deprive him of the very best and most per suasive proof that the nature of the accusation admits of. To show that he was not a traitor, he desired to establish constant acts of duty immediately preceding and succeeding the acts which he is charged to have done traitorously. To show faithfulness to duty to his chief, he desires to prove, as the rejected evidence does, that to get to his command, and after he reached it, he did everything that diligence, zeal, ardor, and all the skill and ability which he pos sessed enabled him to do to assist his chief in every possible way and at every possible hazard, so as to render his campaign a successful one. Tour ruling puts this out of his power, and, respectfully protesting against it, he can do nothing further than to submit it to your more mature consideration. (P. 253, 254.) F. J. PORTBR, Major General. 85 II. In addition to the propositions embraced as mentioned in the te^t, other gross errors characterized the rulings of the Court. 1. As will he seen, (p. 21,) this question was propounded to Pope. "If, as you have stated, you were of the opinion that the army under your com mand had been defeated, and in danger of still greater defeat, and the capital of the country in danger of capture by the enemy, and you thought that these calami ties could have been obviated if General Porter had obeyed your orders, why was it that you doubted on tho 2d of September whether you would or would not take any action against him ?" The witness declined to answer it, "as not being relevant to this investigation. The Court was thereupon cleared, and when opened, the Judge Advocate stated its decision was, "that the question was irrelevant!" Porter submitted a protest in writing. The Court was again cleared, and after sometime was opened, and Porter told that his protest would he held "under advisement until " the next day. On the next day, the protest was read by the Judge Advocate, and is as follows : "The witness having, in his examination in chief, attributed the disasters of the army under his command in Virginia, in August, last to the failure of the ac cused to obey all or some of his orders, and having stated that he was of the opin ion that such orders might have been obeyed ; and it being so far as the prosecu tion has gone, upon his evidence that such disobedience occurred that the prosecu tion has endeavored to he maintain ed ; the accused is advised by his counsel that the question just ruled out by the Court is not only relevant and legal but most material, in order to show that the recollection of the witness in such his examina tion in chief is not to be relied upon; and that he for the first time afterwards charged the alleged disobedience upon the accused ; because it was the duty of the witness, not only not to doubt whether he would take any action in relation to the matter, but to report the same as a grave offence on the part of the accused ; and liis determination or doubt whether he would take such action, or make such report, are facts not only admissible but material evidence, that at the time to which the question relates he did not believe there had been any such disobedience on the part of the accused, and thereupon respectfully requests to have this protest entered on the proceedings of the Court against the exclusion of the question TpfprTPfl t,o "1?. J. PORTEE, Major Gmerai." The Judge Advocate said : The witness requests the permission of the Court to answer the question referred to in the protest just read. The accused made no objection. The Court was cleared and after sometime opened, and the Judge Advocate an nounced the decision to he that the witness have permission to answer the question. When the witness objected to the question for irrelevancy, his objection is sus tained After the protest is heard by him and the Court, and he requested to he permitted to answer the question, it was decided, although still as far as is known in the opinion of the Court, irrelevant to allow him the permission. As the Court had no authority to receive any but relevant testimony, the result of this ruling was to leave the relevancy or irrelevancy of the question to the decision of the witness. III. The same course was adopted by the Court in regard to another question put by Porter to the same v/itness. (P. 24.) lY. General McCleUan, whose evidence was strongly in favor of Porter, was asked by one of the Court, and evidently with a view to impair its effect, whether his feelings towards General Pope were not unfriendly. The gross indelicacy of the inquiry, -caused another member of the Court to object to it, and it was then with drawn. Porter by his counsel protested against its withdrawal, because as it was apparent that the member of the Court propounding it, was under the impression that such feelings existed, it was Porter's right to have the truth of the imputa tion tested, and the right of the witness to be permitted to exhonorate himself from it. But the Court decided that it should not he answered, and neither the question, nor what occurred in relation to it, were permitted to appear in the Record. V. In the Reply, (p. 11,) it is said that the writer did not know what, if anything had been done, for Lieut Colonel Thomas O. S. Smith. He has since ascertained that he was appointed a Brigadier General, to date from the 29th of November, 1862. The Court was opened on the 25th of that month. On what day the ap pointment was made he is not informed, but it must have been after he gave this testimony against Porter, on the 11th of December, in the same j'ear, as at that time he stated himself to he a Lieutenant Colonel, under a commission dated the 24th of August, 1861. As he admitted upon his examination that he had never been in any army before that date, and never received a military educa- tio'n, and never was in a battle prior to Pope's Virginia campaign, and there being nothing to show that he displayed there either scientific knowledge or conspicuous valor, it must be true that his promotion to the high rank of Gen eral was not a reward far gallant service in the field or distinguished military ability. But looking to the time when he gave his evidence in Porter's case, and the character of that evidence, and his conduct in publishing and circulating his testimony and Pope's, and Roberts' only, without any other part of the proof, it is left to the reader to decide for himself to what cause it is to be referred. VI. The Judge Advocate considers as immaterial the testimony of Porter's "former services and character for faithfulness and efficiency as an ofBccr,'' although he admits it to be "f-qll and earnest," because such evidence, he says, "is held to be entitled to little weight except in doubtful cases," and to no weight when "it comes into conflict with evidence that is both positive and reliable." That no such evidence as the latter was given against Porter the reader has seen in Thu Rkply. He will also have seen that the case made against him by the 87 o^ne!"lUs"d„:\*:eve7:o r l^^^'f "' '^"' ^^" ^'^'' ^^ -* -» '^ ^-^ul testimonials •hlrme;.%2Snls"* 'T^^'' '^ '^"''^^" ^°^^ ^*^°"-^ -"'^ "^'^ bim longest and best ^"'"^^"'"^^= "^d efficiency" by those who had known that h'Tta's tZmJZ'''"~''^ '^'^ "^"^^ ''"^ «''y*'^^"g *° ^--i -<= t° think ne was anything but a zealous, faithful and loyal oejiceb " (P. 181.) condutt'll tr'^^'T""'"' '"' opportunities to judge of General Porter's rvo';;Voic.B.r\p;7foV""''^^^' ''" "" ""^^™"°' ^'^"^^^^^ ^^^ (P^'l4?r'"' JVXoreZJ.-"! do not think that he ever failed to do his duty." 4. General Sykes.~B.e was asked, did you ever see in Porter "any slackness to do his duty, any evidence of a disposition to fail his commanding officer or his country," and answered: ^No ; I never have. General Porter is an officer whose zeal is so well established ttiat I hardly see the necessity of that question. I would like to add that General Porter's foresight, his providence for the wants of his command, and his attention to all the minutiaj of his command, are such and so great that I have often thought that he relied or trusted too little to the capacity of his division com manders. He seemed to do everything himself. (P. 177.) 5. General Butterfield.— (Rohevts had said that Major General Kearney had told him that Porter " would fail General Pope.") Butterfleld was asked whether be had had conversations with Kearney in relation to Porter, and said, "fre quently," and that he always spoke in the highest teems of General Porter, both as a bratb oti'ICBK and a gentleman, and as a hard worker." And Butterfield also stated for himself, that he never saw in anything that he did or said before, or when it was understood that he was to come under Pope's com mand, any evidence of an indisposition to be faithful to General Pope and ' to his country. 6. Major General McClellan, under whose immediate eye Porter was during his command of the Army of the Potomac, said, that from what he saw of his conduct, or from what he heard him say, after he knew that he was to go to the assistance of Pope, he did, in his opinion, "all that an energetic and ZEALOUS AND PATKIOTIC OTFICEK COULD ' HAVE DONE," and that he never had any reason whatever at any time after he received notice that he was to go to Pope's aid, "to believe that he would tail General Pope or the ooun- TBX in the discharge OF HIS DUTY." (P. 196.) VII. The very material evidence on one point, of Colonel George D. Ruggles, was omitted in the Reply — it is here given : He says, that he was in a room of the headquarters of General Pope, at Fairfax Court House, %n the morning of the 2d of September, 1862, that Porter and Gene- ral Pope were in the room, and that "I was engaged at the time (he was Pope's Assistant Adjutant General, and chief of staff,) writing orders for the positions of troops." "While I was writing these orders, General Porter and General Pope had a conversation lasting about 20 minutes." " Whilst this time, studiously avoiding overhearing the conversation, I heard scraps -enough of it to know they were talking about the incidents of a few days pre vious. At the conclusion of the interview. General Pope and Porter got up, and I heard General Pope say to General Porier, that his explanations were satisfac tory loith the exception of the matter of the one brigade. I think he said, "en tirely SATISFACTORY," though as to the word entirely, I can not swear posi tively." "I think General Porter replied, "that (the brigade) can be easily explaned," though I am not positive about his answer. He also stated that his recollection was, that he reminded Pope of this "conversation on the 5th or 6th of September, 1862." The Judge Advocate, in order to destroy the force of this evidence, succeeded only in getting the witness to repeat what he had said before, that he was not positive in his recollection of the latter fact, stated by him, but that with regard to the other, Pope's telling Porter that he was satisfled, he was positive and certain. (Pp. 155, 156.) Nor did Pope, who was examined before in regard to it, deny it, on the contrary, he virtually admitted it. He said that he remembered that upon the occasion referred to, " I told General Porter that I had not reported him to the Department in Washington, and as matters stood, I thought / should not take any action in reference to his case, though I felt bound to do so in the case of Griffin. And when asked upon cross-examination whether he remembered the conversation between himself and Ruggles, testified to hy the latter, he only said he had " no remember ance of it," but was "not certain that he had not," but was "very certain that Colonel Ruggles never stated a thing of that kind to him, although he was "not prepared to swear that he did not." The bearing of Ruggles' evidence upon the accuracy, if nothing else, of General Pope's testimony, and its conclusiveness of the fact, that Pope, when he was made ac quainted by Porter with all the circumstances connected with his conduct under Pope's several orders, expressed himself satisfied, cannot fail to he apparent to the reader, and fatal in any fair judgment, to the finding of the Court. YALE YALE UNIVERSITY LIBRARY 3 9002 02498 2531 IS 1 1 * » |. '¦*> - ., , - , jf ¦( ¥"•* ' -" > . ¦* 1 ' ' I ¦*H"^..^# ' '*'f .'».,. I ' , .j' , V >. ^ ,'-'^, #' 1 , vJ'L, ' B "^ '^ -4- ^"y - \^; ' - - >K V- \ % - -. : -