for having generously withdrawn, related to Porter's conduct in the very battle of the 30th of August, where, under his lead, the battle ground was. literally mired with the blood of his devoted followers, and where his efforts were so greatly instrumental in diminishing the disaster of the day. Having thus, it is confidently submitted, shown not only that there is no proof to establish the alleged erimiual animus of Porter, but conclusive evidence to the contrary, the assumption of which animus constitutes the very foundation of the argument of the Judge Advocate, the charges and specifications will be considered in their order, and in connection with the whole evidence.

FIRST CHARGE.-FIRST SPECIFICATION.

The first charge was the "Violation of the Ninth Article of War," and the first specification, a failure to obey the following order of Major General Pope, dated Bristow Station, August 27th, 1862, 6.30 P. M., Major General F. J. Porter, Warrenton Junction :"

"GENERAL: The Major General Commanding directs that you start at one o'clock to-night, and come forward with your whole corps, or such part of it as is with you, so as to be here by daylight to-morrow morning. Hooker has had a very severe action with the ene ny, with a loss of about three hundred killed and wounded. The enemy has been driven back, but is retiring along the railroad. We must drive him from Manassas, and clear the country between that place and Gainesville, where General MCDOWELL is. If Morell has not joined you, send word to him to push forward immediately; also send word to BANKS to hurry forward with all speed, to take your place at Warrenton Junction. accounts, that you should be here by daylight. this dispatch who will conduct you to this place. to Banks, who is on the road from Fayetteville, probably in the direction of Bealton. Say to Banks, also, that he had best run back the railroad trains to this side of Cedar Run. If he is not with you, write him to that effect.

It is necessary, on all I send an officer with Be sure to send word

"P. S-If Banks is not at Warrenton Junction, leave a regiment of infantry and two pieces of artillery, as a guard till he comes up, with instructions to follow you immediately. If Banks is not at the Junction, instruct Colonel CLEARY to run the trains back to this side of Cedar Run, and post a regiment and section of artillery with it."

The Judge Advocate devotes five pages of his review to maintain this specification. With what justice, we will now see:

First. The order was to bring by the specified time, "daylight," the following morning, not a part merely, but his "whole corps," or the

whole of "such part as is with you." Porter had artillery with him, an arm of vital moment, at the time, to the accomplishment of Pope's purpose, and to the safety of his own command. This part of his force, too, the body of the order clearly embraced.

And if that could be doubted, the postscript made it clear. For in the postscript he was told that, in the event of his not finding Banks “at Warrenton Junction," he was to "leave a regiment of infantry and two pieces of artillery, as a guard until he comes up, with instructions to follow;" that is, to follow with his own and these two pieces. The artillery of Porter was, therefore, manifestly included in the order. No part of that arm was to be left behind, except in the contingency mentioned, and then only two guns, and but for a time. On this fact, the Judge Advocate is silent, although its significance is most important. The order exacted the movement of Porter's entire force, and embraced, in words, his artillery. To have left that behind, would have been disobedience; and if any untoward result had ensued to his own command or to Pope's, he should, and no doubt would, have been held responsible. Nearly all the witnesses proved that the artillery could not have heen moved at one o'clock. In this part of the case, and indeed throughout, the prejudice of the Judge Advocate reveals itself. After relying, and illogically and uncharitably using the portion of the evidence which he quotes, as bearing on the question involved in this specification, he tells the President: "That there are certain other facts disclosed in the testimony, which go far to indicate a settled purpose on the part of the accused to disregard" the order. On receiving it, he said to the Generals who were with him, "there is something for you to sleep upon," instead of telling then what the Judge Advocate, in his enthusiasm, says he should have told them, though he fails to say what that was.

Conceding that what he did say is correctly given, one would suppose that if it did not for a moment excite the surprise of the officers to whom it was addressed, (and against whom no fault of motive or want of skill is attributed, and all of whom are now faithfully serving their country,) officers who knew the actual condition of things, and saw the manner and heard the tone in which Porter spoke, an unprejudiced mind would find in that fact alone, ample confutation of the imputation, and dismiss, as wholly unjust and uncharitable, all suspicious speculations that could be founded upon it.

But Porter did not say what is stated by the Judge Advocate. The reliable proof is the other way. What he did say, was not in any degree "saddening or discouraging" to the officers who heard it, or to those who believe that in the prosecution of this war, much vigor is much wisdom." In that maxim no one more decidedly concurs than Porter himself. This is evidenced by his whole conduct since the war commenced. What he did say, on reading the order to his Generals, was

proved by General BUTTERFIELD, one of those present at the time. That officer states, that as soon as Porter received the order, he handed it "to General MORELL or to General SYKES, who were present, and said there was a chance for a short nap, or something of that sort, (I do not remember the exact words,) indicating that there was but little time for preparation." And the same witness further stated, that on objections being made by Sykes or Morell, or both, to marching at 1 A. M., (they both testified that they did so object,) Porter stated, what the Judge Advocate neither gives nor alludes to, "In reply to these remarks, General Porter spoke rather decidedly, that there was the order-it must be obeyed; that those who gave the order knew whether the necessities of the case would warrant the exertions that had to be made to comply with it. I do not state that as his exact words, but as the substance of what he said." (P. 185.)

What evidence is this of want of vigor, or of a purpose to disobey? No wonder that neither Sykes, Morell, nor Butterfield saw in it nothing to regret, nothing indicating a purpose or a willingness to disobey the order. Nothing to the last degree saddening or discouraging for those who believe that in the prosecution of this war much vigor is much wisdom." Nothing sad or discouraging at all, but on the contrary, an ardent desire to obey the order. The Judge Advocate, however, though he heard not the words, nor the tone, nor saw "the expression of the eye and the play of the features," which he tells us, "often afford a language more to be relied on than that of the lips," (p. 301,) ruminating in his study, and even without a Smith, or any other expert in the reading of "the intercommunings of spirits" to supply his own possible want of information, and, with assumed confidence, construes them to have been most sad and discouraging, and to have exhibited nothing of "vigor," or of "wisdom." Can this be reconciled with his well known ability, except upon the ground of his fixed antecedent hypothesis of Porter's guilt?

I. But to the evidence.

The order was received, as admitted by the Judge Advocate, between half-past nine and ten o'clock of the evening of the 27th of August. The Generals who were present, Morell, Sykes and Butterfield, all say it was about ten o'clock.

II. When was the march under the order begun?

The Judge Advocate says, it was not until about dawn. To make that statement good, he quotes a sentence or two from the testimony of a few witnesses. But why not all that these witnesses said? And especially why not have given the evidence of the Generals, who were present when the order was received, and had charge of the movement, and of that of General GRIFFIN, Lieutenant Colonel LOCKE, Captains MARTIN and

MONTEITH, and Lieutenant WELD? In fairness, it is obvious that this should have been done. General Morell was asked, "about what time did the march or movement of troops commence," and answered, "at three o'clock, or very near that time. That was the hour designated” (P. 145.)

notify me where the head of We marched from the camp

General Butterfield, (by Presidential appointment the chief of General Hooker's staff, whilst he was in command of the army,) says, that General Porter fixed three o'clock as the hour, and that the witness "wrote an order in General Porter's tent, for my command to be in line to march at three o'clock." And in reply to the question, "did you march or attempt to march at three o'clock, said, “I did;" I had my column formed and staff officers sent out to my column should take its place in the line. up to the road, and there waited until we could take our place, which was at the rear of General Morell's division." (Pp. 185, 186.) General Griffin, said, "I received an order about twelve o'clock on the night of the 27th of August, to move my brigade at three o'clock in the morning. At three o'clock in the morning I started from my camp towards Bristow Station, and marched about a mile or two, to where I halted, and there I remained at the head of my column until about two hours after daylight. (Why this delay he satisfactorily explains.) (Pp. 160, 161.)

Lieutenant Colonel Locke being asked, "did the corps march at three o'clock," answered, "yes" (P. 134) Captain Montieth, "at what time that morning did General Porter begin to move his troops?” “I should think it was about three o'clock (P. 127.) And such is the testimony of all the witnesses upon this point, in fact of all who had the best opportunities of knowing, including the Generals whose duty, to move. at three o'clock, under the order they all say they received from General Porter the night before, it was to see that that order was obeyed, and to superintend the movement. How idle is it to disregard all of this evidence as unreliable, and to find a fact inconsistent with it upon such testimony, little, too, as that is to which the Judge Advocate refers, and of that little to General Pope's, who was not present at the time, who, to an inquiry, "whether on the receipt of certain messages from the accused, the latter was on his march, in obedience to the order of the 27th of August," answered, "I do not know that he was. On the contrary, from a note I had received from him, (not however, produced, as were none of Porter's notes to this witness, who said that he had mislaid them all,) I did not understand that he would march until daylight in the morning." A story at war with the fact, that he had ordered the march to commence at three, and, as proved by the witnesses just referred to, that it did commence at that hour.

But, independent of the positive proof as to the time of the march, and supposing that the mind could possibly doubt upon the point with that proof before it, what are the probabilities? Every General and other

officer present when the order was received, or who was in Porter's tent afterwards on that evening, tells us that Porter gave a positive order to march at three o'clock.

If not obeyed, these Generals, who had to execute the order, were liable to censure. Who censures them? Not the Government, certainly. For, as before stated, and fortunately for the country, they are all of them in high favor Porter is the only victim. He alone has been sacrificed, or rather as far as his reputation is concerned, a futile effort has been made to sacrifice him.

III-But, admitting that he did begin his march at three, A. M., the Judge Advocate maintains that he was guilty of disobedience, meriting the sentence of the Court, because he should have marched, or attempted to march, at 1 A. M.

However positive in that respect the order was, it was confidently stated in the defence, upon the anthority of a military maxim of Napoleon, that passive obedience to a military order is only exacted "where it is given by a superior who is present on the spot at the moment when he gives it." The authority of this maxim is not disputed by the Judge Advocate-he only denies its application in this instance. And he does this but doubtingly. Nor is it believed," (says he,) that the accused can find shelter" under it. And why-can the reader imagine? because, as this official military jurist says, "the discretion it allows to a subordinate, separated from his superior officer, is understood to relate to the means, and not to the end of an order. When the accused determined that instead of starting at one o'clock he would start at three or four, (he adds an hour, for all agreed that Porter ordered the march to begin at three,) he did not resolve he would arrive at Bristow Station by daylight in a different manner from that indicated by his Commanding General, but that he would not arrive there by daylight at all. In regard to this, the end of order, he had no discretion." (P. 360.)

What technicality. A just and enlightened Judge once said of a like. display in a case before him, "it is stretching technicality to the very verge of quibbling."

A few observations will show the weakness of the reasoning of the Judge Advocate

I. In the first place, no such qualification of the maxim is anywhere suggested by its great author. His language is general, comprehensive of end as well as means. Passive obedience to an order in any particular, whether of end or means, is not to be exacted when the superior who gives it is not present at the place where it is to be executed. In the words of Napoleon, such obedience is to be exacted "only when it is given by a superior who is present on the spot at the moment when he