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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 acquainted 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 tells 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 contrast, 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, 1312, when Wellington's whole army did not exceed sixty thousand men, and King Joseph's, Napoleon's brother, numbered eighty-five thousand, and Hill's command, left by Wellington at Alba de Tormes, fifteen thousand, the King, Jourdan and all the Generals 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 destruction 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 Retiro, the King and Jourdan insisted upon the advisability of throwing the French cavalry upon the English 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 eighty-live thousand French troops were assembled the English were already out of their reach, and in full retreat upon the Cuidad-Rodrigo route," and the object of the campaign thereby lost, (ib. vol. 15, pp. 73, 74.) Soult nevertheless 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 arınies. 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

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 was held to rigid and most technical proof, created in the minds of the observing, great surprise ; but it is referred to in this connection with no view to censure. In the course of that inquisition, it appeared that McDowell had received a positive order from Pope, (under whose command he was,) which he failed to obey. Instead of doing so, he 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 most disastrous, as proved by Pope, whose evidence in regard to it was adopted by the 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, (meaning, 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,” “ could be of no avail when the misconduct 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 frustrated, as Pope says it did, the almost certain destruction of Jackson's command, and probably its capture, may with much more show of reason be attributed 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,” (disobedience 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 unfortunate 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 motires." 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,

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 confidence 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 remonstrance, he only agreed (they could persuade him to no longer delay,) to wait till 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 positively 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 tendency 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 disobedience. For the other_Porter—such facts, if they have any effect, either come “too late," or prove nothing; or if anything, prove guilt.

Such is the striking difference in the administration of its justice, exhibited 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 Republic, 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 satisfactory answer ? And yet, how priceless to a “nation is even-handed justice.” How imperative the interest, and the duty, to observe and cnforce 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 Department 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 Centreville, on the night of the 28th of August, had remained masters of the field still interposing 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 King." This filed him, as it well might, with high hopes of sua cess, and he says that he “immediately" " directed General KEARNEY, whose division occupied Centreville, 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 daylight. 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 Manassas Junction, leaving open the road to Thoroughfare Gap. This withdrawal of that division made necessary a great change in the movement, and was 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 derangements of the plan of battle then formed by General Pope." By whose order, then, was the retreat made ? By King's. Why was not be called

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 informed him that our whole force from the direction of Centreville 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 dissatisfied 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 well 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 command, as we all unfortunately no know it to have been, of General McClellan, 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 well or ill advised, his subsequent 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, dismissing from the strvice several of the highest officers in his command, and many others, and, soon after, informed the President in person that

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