directed him to attack "the enemy's flank, and if possible his rear:" let us see whether when he received it, he could have made such attacks? At that time there was, as proved by Marshall, and the other witnesses referred to, in Porter's front, a force of the enemy twice as great as his own. To have reached their flank he must have marched in front and to the entire distance of the enemy's line. Their force consisted of infantry, cavalry, and artillery. With this force they could have assailed him in every foot of his progress, and readily have attained a position in his own rear, which must have ended, in all human probability, in his annihilation, and if so, in the destruction or capture of Pope's army. But, in addition to this, the country over which he would have had to pass, was so broken and filled with ravines and timber, that it would have been impossible, in the darkness which then prevailed, to have moved his infantry in anything like order, and utterly impossible to have moved his artillery. To have left the latter behind him would have subjected it to certain capture, and would have been a direct violation of the order, as that directed him on his march to "keep heavy reserves and use your batteries."

The Judge Advocate says, "it may be admitted, and perhaps the testimony requires the admission to be made, that falling upon the enemy on the afternoon of the 29th, (Porter) would have encountered both difficulty and danger," but adds the very original remark that "difficulty and danger in time of war are daily and hourly in the category of the soldier's life. Their presence should be for him, not a discouragement, but an inspiration To grapple with them should be his ambition, to overcome them, his glory." (P. 312.) Without meaning to call into doubt the capac ty of the Judge Advocate to judge what would be a soldier's ambition or "glory" in such an exigency, it is certainly not discourteous to him, so say that such soldiers as Hyland, Marshall, Morell and Porter, who saw the diffeulty and danger, are judges more to be relied upon. In comparing in this particular the Judge Advocate with Porter, no disparagement is intended of the former. When he shall have been in as many battles-shall have conducted himself with as much skill and valor-shall have won the same grateful applause-have received such signal manifestations of approval from the Government-have done so much to fill the whole measure of a soldier's ambition and glory, he will then, and not before, have a right to be heard with respect, as to what, in any particular instance, should be a soldier's ambition and glory. Let us, however, examine what was the extent of the "difficulty and danger" which the Judge Advocate admits to have existed. In considering this question, the Judge Advocate accepts the least and rejects the most satisfactory evidence. He relies on the opinions of Lieutenant Colonel Smith and McDowell, formed in ignorance of the country to be passed over, or of the length of the march, and of the force of the enemy in Porter's front. That such opinions are entitled to no weight, must be obvious

to every fair mind. In a court of justice, were the principles of evidence are apprehended and impartially applied, they would be promptly rejected, and the counsel who endeavored to maintain them, lose reputation with the bench and bar. The reliable evidence is this:

1. General Reynolds.-He had passed over the country on the 28th with his command, and says he found in "so broken, wooded, and obstructed that I had to turn into a road leading along the rail road from Gainesville to Manassas Junction, and finally marched on that road in one column, around to Bethlehem Church, towards the old battle field of Bull Run, late in the evening." That the country between New Market and Groveton was very broken by ravines and wooded; I will state that I know that from having passed over it on horseback that night, from somewhere in the neighborhood of New Market over to the Warrenton Pike, near Groveton." In his judgment, a command could not have "passed over that country in force with artillery in proper order to face an enemy, if it had to "move in the immediate presence of an enemy."

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On cross-examination by the Judge Advocate he was asked, "you say that a command with artillery, etc., could not have passed over the country between New Market and Groveton, in the immediate presence of the enemy was not the ground equally bad for the enemy as for General Porter? And if the enemy could take position there why could not General Porter's troops have taken position against them ?" And answered: "It was impossible to manœuvre troops over that country." They could take position there, of course, and they could be attacked in position by troops. But it would have been very difficult to have got artillery up through that broken country, and a very disadvantageous attack would have been made." He was afterwards asked: "did you or not pass over the country stretching from your left towards General Porter's position, on the 29th, while on the march from Gainesville towards Manassas Junction ?" And answered: "not with my command." "Did not the enemy, in attacking the left and rear of General Pope on Saturday, 30th of August, pass with artillery and infantry much of the country that General Porter would have had to pass over on the 29th to attack the right of the Confederates?" He replied, I think not; I think it had gotten in, as it were, between that broken country and our position on that day, occupying a ridge which crossed the turnpike there, and having the broken country behind him. Because I manoeuvred the day before, 29th, all over, up to that broken country, and got partially on that ridge with one brigade." The Court, evidently unwilling to abandon their desire to show that Porter could have made the attack, not satisfied with this answer, put to the witness this additional question. "Could so large a force as passed around your left on Saturday, have done so without passing over a long distance toward where General Porter was?" And received

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this answer: "He had the Warrenton Turnpike open for him, and by coming down that turnpike, he filed in off that turnpike, as I supposed, though at a different point, through this broken country. He had that advantage in coming down and occupying this ridge." (Pp. 170–173.)

2. Morell. This inquiry was made of him: "Seeing your own position and that of General Porter's command, so far as you knew it, at the period of the day in question, between sundown and the gray of the evening, and seeing all that you knew and believed of the position of the enemy at that time, please to state whether an attack by General Porter's command upon the right flank and rear of the enemy at that time was possible." And answered: "the only attack we could have made at that time would have been directly in front. The firing of which I spoke was far to the right, and at that time we could not have got there. The troops of the enemy in front of us were under cover in the woods. If we had moved forward we would have gone over this open space, where our men would have been exposed to the fire of the enemy, without any possibility of effectively returning it."

"Such being the case as to a movement on your left to attack the enemy by flanking him on his right, please to state whether you could have passed through the woods on your own right in any good order to attack the enemy in that direction ?" "I doubt whether we could have got our artillery through, even by daylight. We might have passed through the woods with our infantry, but not in any fighting order at all."

"Would it have been possible to carry your artillery through that wood by night. "No sir; I think not. (P. 147.)

The force of this testimony was not attempted to be weakened by the examination of either the Judge Advocate or the Court. The intelligence of the witness, and his well known high character, would have rendered such an effort fruitless.

3. Marshall.-"Was it possible, (he was asked,) without the greatest danger, for General Porter to have made a movement to his right to attempt to reach and attack Jackson on his right?" "No sir; it was impossible to have done so. In the first place, it was impracticable to cross the country in that position during the day. Again, we would have been obliged to have whipped the very force in front of us, large as it was, to have got there, and it was very doubtful if we could have done it."

He also said, that if Porter had "attempted the movement," the enemy "would have attacked our flank." The Judge Advocate did not think it prudent to examine the witness at all upon the point, but the Court were less cautious. They asked whether, "from the position of the forces, both those of the enemy and our own, would the march of General Porter, to

reach the right flank of Jackson, have been direct or circuitous " And were answered:

"It would have been circuitous, through a broken country. If he had endeavored to go the most direct route, it would have been through a broken country. But I do not conceive that it was practicable for him to have gone that route. I think that in order to have acted upon the enemy he would have had to go back the same route we took the next morning in retreating." "Not practicable, (the Court further inquired,) because of the character of the country or the position of the enemy?" And were answered:

"Because of the broken country; it was rocky, and then a part of it was very heavily timbered, and it would have been impracticable to to have carried artillery through there, besides being fired upon and met by the enemy in our front." (Pp. 191-193.)

There was other testimony to the same effect, but it is unnecessary to give it in detail. It is submitted with perfect confidence, that this evidence is conclusive to show that the order of 4.30, which alone forms the subject of this specification, could not have been, at the time it was received, executed. In this opinion all of Porter's officers who were acquainted with the condition of things concurred. Under these circumstances, if Porter had made the attempt to execute the order and had been, as he certainly would have been according to this testimony, defeated with great, if not total loss, he would have committed a most serious military offence, for which he should have been, and no doubt would have been, held responsible and severely punished. If that had occurred, too, judging from the treatment he has received, no one can doubt that the failure of Pope's campaign would have been attributed to such rash and unmilitary conduct.

How ridiculous it is to reject the evidence of the above named officers; and how insulting to the intelligence of a reader, to ask him to put faith in the opinions, not statements of facts, of Smith and McDowell, given in admitted ignorance of the facts which rendered a compliance with the order impracticable. Smith's opinion is based, as he states, "on the fact that that portion of the country over which (as he understood it,) the corps of (Porter) would have moved upon the enemy, "was sufficiently practicable to enable the enemy, as they did, to make a similar movement on our left on the next day." (P. 77) The Italics are the Judge Advocate's. Not only did he omit to inform the President, what in fairness he should have doue, of the evidence here given, but to advise him that the fact on which Smith's opinion was formed, was not true. That Reynolds had proved that the enemy's movement on the 30th was not over the ground which Porter must have passed on the 29th to have attacked their right flank. And McDowell's opinion was based upon the

same misapprehension, and only upon what (as he said) was his "knowledge of the country, derived principally from having gone over the rail road from Mannasses to Gainesville in a car, or on a locomotive, which gave me but little idea of it, as I was engaged whilst going over with matters which prevented my paying attention to the country." And upon several other facts, for the most part immaterial, and unknown to him except upon hearsay. (P. 93.) The Judge Advocate seeks to aggravate Porter's supposed offence by stating with entire confidence, that if the order had been obeyed it "would have secured a triumph for our arms, and not only the overthrow of the rebel forces, but probably the destruction or capture of Jackson's army." He states that this would have been the result if a vigorous attack had been made by Porter "at any time between twelve o'clock, when the battle (between Pope and the enemy) began and dark, when it closed." And for this he refers to the opinions of Pope, McDowell, Roberts and Smith, "all of whom participated in the engagement, and were well qualified to judge." This confidence is somewhat amusing, when it is remembered that Pope and McDowell never achieved a victory, Roberts no one thought could ever achieve one, and Smith was a volunteer of but a few months standing, and never before under fire.

But, waiving this, how totally immaterial are those opinions when the proof is clear to the dullest comprehension, that the attack directed by the order, when that was received, could not have been made, and when there was no prior order stated in this specification, or either of the other two under the first charge, directing an attack to be made at all.

FIRST, SECOND AND THIRD SPECIFICATIONS OF THE SECOND CHARGE.

These will be considered together. They are framed under the 52d Article of War, which embraces "misbehavior before the enemy." They charge Porter with such misbehavior on the 29th. It will be seen that this concedes that there was no order from Pope to make an attack on that day. This charge has been substantially anticipated. It has been proved conclusively, that no attack could have been made, except with the almost certain result of serious defeat, if not, destruction. Either of which would have been fatal to Pope. Nor is the fact true upon which the Judge Advocate relies, that during the time from twelve. o'clock to sunset on that day, a severe battle was raging between the rest of Pope's command and the enemy, within the hearing of Porter. On the contrary, the officers, all of them who were with Porter, agreed in stating that the battle appeared to be mainly with artillery, and at some miles from his position. That Porter had no reason to believe, and did not believe that an attack by him was necessary for Pope's safety or success, appears by his order to Morell, brought out on the cross-examination of the Judge Advocate, and received about sunset, or a little before