that "crime of deeper die than all the guilty train of human vices," is never found in them.

III. Conceding, however, that the joint order did not direct an attack. on the enemy at that point, or elsewhere, on that day, and that McDowell gave Porter no such order, or if he did, that it was without authority, the Judge Advocate says, "it would seem to have been a manifest violation of the duty resting on Porter in the position in which he was then placed, without reference to any specific order or direction, leading or directing him to engage the enemy," not to have done so. (P. 308.)

I. It would be a conclusive reply to this view that the specification charges only disobedience of the joint order of the 29th. If it was the purpose of the Judge Advocate to rely on any such general military duty, as is here stated, fairness, as well as the laws of military pleading, required that it should have been alleged. To specify a particular offence, and on the trial rely upon another and totally different one, is as repugnant to justice as to every legal principle. How is the accused to prepare for his defence; to know what witnesses to summon? or what proof he is to meet? It is impossible that the law in this respect can be unknown to the Judge Advocate. A long abandonment of the profession, which he for years so greatly adorned, may have had its usual result, the making him somewhat rusty in some branches of the science. But this rule of pleading, and evidence, is so familiar, and so challenges the assent of every sensible mind, that he could not have forgotten it. Why then rely on a charge not stated in the specification? Why present it to the President as one of the reasons for his approving the finding on the actual specification? Can it be accounted for except because he was satisfied, or apprehended the President would be satisfied that the offence specified was not established by the evidence? Did he urge the same view upon the Court? Did the Court adopt it, or itself take it? If so, both he, and the Court, offended against the law, and committed a legal outrage upon Porter. The same observations are applicable to the further view of the Judge Advocate, that Porter on the same day violated an "elementary principle," "that in the absence of positive restraining orders, the march shall always be towards the sound of the guns. (Ib.) That is not the offence specified. Nothing can be clearer than this. But, waiving this objection, conclusive as it is, what foundation in fact is there for either of these charges.

II. The ground of the first, is said to be, that the officer is bound to hold his column so, "in the advance, as to be ready to afford mutual assistance in time of need." (Ib.) Need, then, is to exist, to make the principle applicable. Who is to judge of it? The officer in command of

the column. If he judges erroneously, it is no offence, provided he does so honestly. Those who know Porter require no proof to convince them that, unless prohibited by "restraining orders," he would ever assist his brother soldiers in time of need Did he believe it was wanted in this instance? The columns supposed to have required his aid, were not in his sight, but several miles off. Nor could he leave his own command to ascertain their condition, or the desire of their immediate officers, or of the Commander-in-Chief McDowell, leaving his column under the same circumstances, to consult Pope, the Court in his case adjudged committed a clear offence, and only omitted to punish for it from an impression that his motives were innocent. Porter remained, as he should, with his troops, and gent one of his aids, Lieutenant Weld, to Pope. That officer states, "about four o'clock on the afternoon of the 29th," he started on his errand. He bore a written and verbal message to Pope from Porter. The latter was "to the effect that General Morell would now be strongly engaged; that there was a large force in front of us." The glance that he had of the written one showed him, he said, that it was to the same purport, “but much more minutely, with details," what they were, he did not remember. He found Pope, "and delivered the messages to him, both written and verbal," and asked if there was an answer. Pope told him, "tell General Porter we are having a hard fight," and said, that "was all he had to send to General Porter." The witness wrote this down, and afterwards delivered it in person to Porter. He further stated, that on the way to Pope he saw General HATCH," who was in command of King's division, that officer, as Hatch said, being sick, and not present. That he gave Hatch both of the messages, as Porter had authorized, and asked him for an answer, and was told, "tell General Porter that we have whipped the enemy, and are driving them," but soon added, don't deliver that answer, but this, "tell General Porter, we have driven the enemy in the woods." (P. 129.) This also was delivered to Porter. With these facts in his possession, on what ground could Porter have supposed that Pope needed on his battle ground Porter's column?

Who was best able to judge? Pope, who was on the site of the battle, and in command of all the forces engaged, or Porter, who was several miles distant? Had Porter not a right to consider that if his assistance was needed, a request, or order to that effect, would have been sent by Pope, in reply to his written and verbal messages by Weld the right to demand his assistance. But he not only failed to do this, but even to intimate that he desired it. If the assistance was needed, and not asked, (and it is clear that it was not,) then one of these conclusions follow:

Pope had

I. Either Pope designedly failed in his duty, or II, had not the intelligence to know, (though on the spot,) that Porter's corps was needed.

But, he is not blamed by the Judge Advocate. On the contrary, (however it may excite surprise, or cause a smile with those who remember the disorganized army that fell back upon the Washington defences, and its crest fallen chief,) he tells us, "that it cannot be improper to add, what the Record will sustain me in saying, that so far as light is shed upon the subject by the testimony, the Army of Virginia appears to have nobly performed the arduous and perilous work committed to its hands. Its campaign was brief, but marked by sigual vigor and obility, and animated by a spirit which, shriking from neither toil nor exposure, nor danger, bravely struck the enemy whenever and wherever he could be found.” (P. 316) The only way to account for so singular an opinion, is by supposing that the Judge Advocate closed his eyes to all the evidence in the Record, except that of Pope, Roberts and Smith, (a fault belonging to the whole of his review,) and also by supposing, that the universal voice of the public upon the campaign, which literally filled the land, never found its way within the walls of his office. But it is strange, that when he was penning this eulogium and lauding, "the signal vigor and ability of Pope," it did not occur to him, that it was possible the people would find in the fact, that when the President discovered the Capitol in imminent peril, he at once relieved the so much lauded chief, and about the 2d of September, placed the army under the command of Major General McClellan, and on the 5th of the same month gave to Porter the command of eighteen thousand men to guard the most important portion. of the intrenchments around the city, and continued him in that position until 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 McClellan, 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 Mountain and Antietam-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 their united forces in McDowell, his order was conclusive on Porter. To have disobeyed it would have been a high military offence. Did McDowell give an order, and what was it? The facts that he gave one, and what the order was, are conclusively proved by the evidence of Locke and Martin, before referred to, and which was not at all weakened much less rebutted by that of McDowell.

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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 order." (P. 308.)

I. The only proof urged to sustain the fact that there was a falling back is a note (which will 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, McDowell 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 untrammelled" 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 Centreville 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 will not be strictly carried out.". The power, therefore, to Judge whether departing from the order would produce "any considerable 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. in a different direction, or to attack the enemy, or to do would probably hazard that end, it was not to be done. 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 McDowell 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 to march anything else, And who was

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 fall back, but positive proof that he did not. "Falling back," as the Judge Advocate uses the term, means retreat. Did his troops fall back or retreat on the 29th. There

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:

1. Morell. He stated that he received an order from Porter, written in pencil, a little 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, describing 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 follows:

"General Morell,-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 Comm."

What conclusive proof this, that Porter, on that day, was thinking of "the personal safety of (himself) and staff?" It is commended as such to the special meditation of the charitable Judge Advocate. The witness further stated: "I received from General Porter an order to remain all 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, all the night of the 29th. Locke, said that they continued there "until the next morning at daylight," and to the question, "was there any retreat at all, answered no." (P. 195.) Smith, a witness of the Government, examined by the Judge Advocate, and whose evidence he fully relied upon for another 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,