"falsus in uno, falsus in omnibus.") De- | party has shown such gross insensibility to sirous, however, as he evidently was to the difference between right and wrong, impeach the credibility of Locke, he could between truth and falsehood?" But yet not bring himself to charge him with how unfair it would be to deny to the willful falsehood. And yet the maxim Judge-Advocate even very distinguished has no application to any other. And it legal attainments! He so wished to get applies there, because in such a case, the rid of the fact fatal to his immediate purvery ground on which credit is given to pose, the approval of the sentence against human testimony fails. You can not be Porter, that he was oblivious for a moment certain in such a case whether there is of the true sense of the maxim or of the truth in any part of the witness's evidence. moral principle on which it rests. "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 falls to the ground." (P. 314.)

Mistake "misapprehension," as to one fact, the Judge-Advocate asserts-taints the whole evidence of the witness, and demands its rejection. It establishes, therefore, in the sense of the maxim, according to his understanding 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 account 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 misapprehension of the meaning of the maxím quoted by the Judge-Advocate, every student will see is clear beyond all doubt. 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 respect to which he can not be presumed liable to mistake, as in relation to the country of his birth, or his being in a vessel on a particular voyage, or living in a particular place, it is extremely difficult 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 justice, to apply the maxim falsus in uno, falsus in omnibus. What ground of judicial belief can there be left, when the

It is unaccountable also why the JudgeAdvocate did not call the President's attention to the positive statement by Porter in his defense, 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 defense 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 recklessly 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 considered 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 McDowell and King. At the time he knew the former well, but not the latter. And in conclusion was asked this question, "Are you entirely positive, as much as you can be of any fact, that you did deliver to General Porter, on the afternoon of the twenty-ninth of August, words which purported to be a message from General McDowell, 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 per

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 estimation of the public.

THIRD SPECIFICATION.-FIRST CHARGE.

A

son present when this evidence was given, | dicted, that Porter was doing every thing not excepting the Judge-Advocate, who required by the joint one. did not fully believe it. It was impossible to do otherwise. The manner of the witness, his evident intelligence, the reason he assigned for his conviction, all united to challenge absolute confidence in his truthfulness and accuracy. To discredit 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 McDowell and King. The one is proved by Locke to have given the order, the other to have heard it given. No fair legal August 29, 1862, 4.30 P.M. mind can doubt this. They say, they do "MAJOR-GENERAL PORTER: Your line of not recollect the facts. The Judge-Advo- march brings you on the enemy's right cate maintains "that, under the circum-flank. I desire you to push forward into stances, 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 misapprehension in regard to" them, and, being to that extent "discredited," the discredit 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 conduct was all before him. He was informed of every thing that he had done under 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 half-past four of that day. At the time this last order was received, the proof is clear and uncontra

Disobedience of the half-past four order of the twenty-ninth of August. The order was as follows:

"HEADQUARTERS IN THE FIELD,

66

action at once on the enemy's flank, and, if possible, on his rear, keeping your right in communication with General Reynolds. The enemy is massed in the woods in front 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 all 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 half-past four 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 (the words indeed of the half-past four

order negative such a design) that Porter | staff-He says that he supposes that the was to attack, unless his march brought distance between Pope and Porter, when he him on that flank of the enemy. If it got from the former, the half-past four should bring him on the enemy's left or order, was "three miles,” and swears that centre, then the order from necessity be- it was in Porter's hands "by five o'clock." came inoperative. 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 described the road he took to get to Porter, and said that he returned by the same road. (P. 57.)

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 half-past four? 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 at-ed the distance between the two Generals, tempted in that position of his troops to have marched them toward 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 his command. What was the fact? Was the enemy in his front, and in force, when he received the half-past four order? I. At what hour did he receive it?

2. Charles Duffer, the orderly. He fixnot at three, but at "about five miles, as near as he could judge from traveling 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 defense, that he did not arrive until sunset, or half-past six, he was two hours on the way," and then asks, with an air of triumThe Judge-Advocate on this, as well as phant logical confidence: "Is it credible on every other point of doubt, decides so that a staff-officer, bearing an important as to prejudice Porter. The rule is other- order in the midst of a fiercely contested wise in every system of civilized jurispru- battle, would have traveled at this rate, dence, and this is believed to be the first and this too when he was conducted by case in which it has been uniformly de- an orderly acquainted with the road, and parted from. encountered no obstacle? Is it not much Facts have not only been disregarded, more probable that but a single hour was inferences, the wildest and most unchari-occupied, and that, in point of fact, he ar table, indulged in, but the best established rived at half-past five ?" (P 309.) He legal principles, without even a sophistical thus rejects as to the time of arrival, as 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 half-past five.o'clock. And he suggests that "it may be that after carefully considering all the circumstances, the Court felt that the explicit and intelligent statements of Captain Pope and his orderly, fortified by the corroborative 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?

he had done as to distance, Pope's evi'dence, and adopts that of the orderly, and yet tells us, that the statements of both, though materially conflicting, were adopted by the Court as being explicit and intelligent." He also says that these statements were "fortified by the corroborative evidence of Generals Pope, McDowell, and Roberts." How this could be, when the statements were 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

1. Captain Pope of General Pope's speed.

2. Roberts, the disinterested prosecutor | road I had taken, which I afterward found of Porter-he says that he was present out was not the direct road; there was a when the order was issued, and gives it little variation in it. He could not see as his opinion that it should have been de- the road; he did not seem to understand livered" in half an hour or less, as orders where the road was, where it crossed the are generally delivered on such occasions." railroad. Some one then told me that I had better go and show him where the road was, and I went up to the railroad with him, and pointed out the road that I had taken." "He started on it." (P. 130.)