I did not receive but I did not understand at all what the cause was. any impression that we were retreating from the enemy that we were making a reconnoissance to feel the enemy in that direction, and, having found him, 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 justly," have found that Porter d d fall back, did retreat on that evening, and in that way, (the only one suggested) violated the joint order? It can but be accounted for as other gross errors can only be by assuming the existence from some cause alion 21⁄2 of judicial, and official blindness. The only ground relied upon by the J. dge Advocate, is the following note, heretofore referred to, from Porter to McDowell and King. "GENERALS MCDOWELL AND KING: I found it impossible to communicate by crossing the roads to Groveton. The enemy are in strong force on this road, and as they appear to have driven our forces Lack, the firing of the enemy having advanced and ours retired, I have determined to withdraw to Manassas. I have attempted to communicate with McDowell and Sigel, but my messengers have run into the enemy. They have gathered artillery and cavalry and infantry, and the advancing masses of dust show the enemy coming in force. I am now going to the head of the column to see what is passing and how affairs are going. Had you not better send your train back? I 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 Waiving for the present, what however is most obvious, that if Porter had withdrawn to Manassas, (his purpose when this note was written,) the movement would have been within the discretion vested in him by the joint order, yet as the evidence is clear, that he did not so 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 30th and then only marched under a positive order from Pope, he could have been found guilty of falling back or retreating upon the 29th, only upon the hypothesis, that an unexecuted 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, another-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. The Judge Advocate asserts, however, that the purpose 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, surrounded 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 daring 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 the 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 Morell, 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 McDowell to Porter of the 29th, which Colonel Locke positively swears he received and delivered that afternoon, would be a full justification for Porter's not attacking the enemy, assails 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 McDowell, that he did not recollect giving the order, II, by King, that he was not with McDowell (as Locke had said he was,) when McDowell as stated 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 professed 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 McDowell about the time when Locke testified he received the order, and said that he did not. And to another question he answered, that he did not remember hearing McDowell give any such order that day. In his case then as in McDowell's, there existed but 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 acquiauted 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 gallantry are beyond all question, his sickness must have been severe. Cer 66 tain deseases we all 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 order was not delivered by McDowell 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 delivered it to Porter as coming from McDowell. No one contradicts this either positively 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 statement that the order was sent by McDowell, 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 "falsum in uno, falsum in omnibus," (it should be falsus in uno, falsus in omnibus,") Desirous, however, as he evidently was to impeach the credibility 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 applies there, because in such a case, the very ground on which credit is given to human testimony fails. You cannot be certain in such a case whether there is truth in any 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 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 maxim 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 cannot 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 ominibus. What ground of judicial belief 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 President'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 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 29th 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 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 intelligence, the reason he assigned for his conviction, all united to challenge absolute confidence in his truthfulness and accuracy. To dis 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 McDowell 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 recollect 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 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 everything 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 4.30 of that day. At the time this last order was received, the proof is clear and uncontradicted, that Porter was doing everything required 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 estimation 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 p. m. MAJOR GENERAL PORTER: Your line of march brings you on the enemy's right flank. I desire you to push forward into action at once on |