Defense of Maj. Gen. Fitz John Porter, of the Volunteers of the U. S. Army,
Mr. PRESIDENT AND GENTLEMEN: I stand before you, I trust, as a man who, up to the 27th of August last, was and desired to be of fair name and fame; a soldier held to be faithful, laborious, loyal, and trustworthy; prompt to honorable duty though involving personal peril, and having done some service which my country and my Government had seen fit generally to regard and to reward as meritorious.
Eminent and honorable men, fit in every way to be heard with respect, have come here before you, within the past few days, to bear upon their knowledge and their oath at least thus much of witness in my behalf and praise.
Nor do I for a moment doubt that their words, so spoken: carried with them your belief. But in some sense such words were not needed to attest to you what I have been and what I was up to those two days of my life in August last, which this wicked accusation would have blackened if I had not crushed down its falsehood by my defense, even as you will, I do not doubt, in your finding, crush down its malice.
Yet a little while ago my companions in arms were taking counsel together as my judges. Yourselves, most if not all of you, have known me well. Your eminent official law adviser, who has conducted this prosecution calmly and fairly so far as on him depended, but with the vigilance and energy which his duty demanded, himself, in the recent past, when momentous events hinged on the great sway which in his high post he bore, has trusted me, and has felt that his trust was in nowise betrayed.
But no more of this. I go on at once to answer these charges as they stand.
The order set forth in the first specification to the first charge bears upon its face a plain purpose and meaning. It commanded me to hasten forward as soon as possible from Warrenton Junction to Bristoe Station, in order to be ready there as early as practicable, to cooperate with my force against the enemy. Receiving this order about 10 o'clock at night, I proceeded at once to carry it into execution, to the best of my ability. It had been written by General Pope 10 miles away from me, about three and a half hours before I received it, and at too early an hour for him to know the character of the night which was coming on. The order itself proves that he did not know, when he wrote it, whether General Morell's division had yet joined me. He could, of course, know nothing of the condition of my troops, of the distance which they had marched that day, nor of their capacity to commence another march of 10 miles without any considerable interval of rest and without any delay. Still less could he know whether, when the order reached me, the roads were or were not so much obstructed as to be impracticable for masses of troops in the darkness. All these facts were fully before me and the general officers of my corps, with whom I at once consulted as to the best mode of its execution. It is abundantly in proof that their opinion was unanimous that nothing could be gained, and that much must be lost, by an attempt to start at 1 o'clock in the night. In their testimony, General Morell, General Sykes, and General Butterfield have clearly set forth the grounds upon which they arrived at that conclusion. General Butterfield testifies expressly that I was reluctant to adopt it; and in this he is confirmed, so far as they speak to the point, by the whole testimony of the other generals. It is in proof that, immediately upon the receipt of the order, I sent out two officers of my staff to ascertain, if they could, in the thick darkness, the state of the road, and the extent to which it was obstructed, and that I waited for their most unfavorable report before I decided, in concurrence with the other generals, so far to depart from the strict letter of the order as to fix the hour of marching at 3 o'clock, with express order that all preparations for the movement should be before that hour completed. It is fully in evidence that this course was not adopted by me until I had myself gone forth from my tent to see whether anything better to accomplish the object of the order could possibly be done.
Such having been indisputably my conduct under the order, the only question before the court is, whether that conduct was criminal. That I was laboring to the best of my ability and judgment, in the whole transaction, to carry out the order fully, cannot be questioned. Did the event bear out the correctness of the judgment I then formed as to the best mode of executing the order? I submit to the court that every witness who has testified upon this point from actual knowledge and observation fully proves that to have started, as the order directed, at 1 o'clock, instead of starting, as I did start, at 3 o'clock, would have been, first, really to 1ose time in arriving at Bristoe Station, and also greatly to impair the strength and efficiency of my troops at the time of their arrival. Besides the three general officers to whom I have referred, and each of whom necessarily knew the whole state of things, General Griffin also testifies expressly to this fact. He informs the court that even at 3 o'clock, when he did move, it was so dark, and such was the state of the road, that the troops fell into confusion; and although every effort was made to get along, the column was forced to come to a halt and wait for the daylight before the artillery could be extricated from the marshy ground in which it had stuck last.
I now proceed to make such citations from the testimony before the court as will fully establish all that I have stated. General Butterfield says:
The order, I believe, was for General Porter to move his force at 1 o'clock in the morning to Bristoe Station. He handed the order to General Morell and to General Sykes, who were present, and said that 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. General Sykes or General Morell, I do not remember which-- one or both of them-- -spoke with regard to the fatigue our troops had endured, the darkness of the night, and the fact that, in their judgment, the troops could be of more service to start at a later hour than they could be to start, at the hour named. In reply to their remark, General Porter spoke rather decidedly; that there was the order; it must be obeyed; that those who gave the order knew whether the necessity 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. Captain DeKay, who brought the order, was then present, and was asked some questions about the road. He stated that the road was full of teams. General Sykes, I think, suggested that it would be impossible for us to move at the hour named, if the road was full of trains; that they could not find the way. General Porter called two aides, and sent them off' to investigate the condition of the road, and to ask General Pope to have the road cleared so that he could move up. When we got outside, the darkness was so apparent-- to use such an expression-- and it seemed to be such a matter of impossibility to move, that General Porter said, "In consideration of all the circumstances, I will fix the hour at 3 o'clock instead of 1. You will be ready to move promptly." And I subsequently wrote an order in General Porter's tent for my command to be in line to march at 3 o'clock.
Question. Do you recollect whether, at the same time, Captain DeKay said anything about having difficulty as a guide in showing the road?
Answer. I think he made some remark, that it would be very difficult in getting back; that he would have hard work to find the way. I do not remember the exact language, but it was to that effect.
Question. Were your men very much fatigued by the march of the 27th, and how far had they marched?
Answer. They were very much fatigued. They had marched from Ellis' Ford to Bealeton, and from there up to Warrenton Junction, almost all the way without water, in the dust. It was very warm, and it was with great difficulty I got them along.
Question. Did you march, or attempt to march, at 3 o'clock?
Answer. I did. I had my column formed, and staff officers sent out to notify me when the head of my column would take its place in the line. We marched from the camp up to the road, and there waited until we could take our place, which was at the rear of General Morell's division.
General Sykes testifies:
Answer. About 10 p.m. on the 27th of August, General Porter sent for me. We were then encamped at Warrenton Junction, Va. In his tent I met General Morell, General Butterfield, and Capt. Drake DeKay. General Rorter informed me that he had received an order by the hands of Capt. Drake DeKay, directing his corps to march at 1 o'clock a.m. on the 28th. We talked it over among ourselves, and thought that nothing was to be gained by moving at midnight, or 1 a.m., rather than at dawn. I was very positive in my opinion, and gave General Porter my reasons. They were, first, that a night, march was always exceedingly fatiguing and injurious to troops; that my command had already marched from 12 to 14 miles that day; that I though the darkness would cause confusion; that a constant stream of wagons had passed ahead of us from the time my command reached Warrenton Junction until dark; and, above all, I thought that as but two hours, or three hours at most, would elapse between 1 o'clock and daylight, we could make the march in much better order, and march more rapidly, by starting at dawn than if we started at the hour prescribed.
And, again, the same witness proceeds:
The night was unusually dark. Before I directed the advance to be sounded, I sent an aide-de-camp to find the road, so as to lead the column upon it. He returned in a short time, and told me that the darkness was so great that he could not distinguish the road. He also told me that he was assisted in that search by several soldiers.
As anticipated, we ran upon this train of wagons within 2 miles of my camp. They encumbered the road for miles. Myself and staff officers were constantly engaged in opening the way for the head of my column. On several occasions I had to take my mounted escort and place them on the road with drawn sabers to prevent the wagons from closing up any interval that occurred. I do not think that in my military life I ever had so much trouble with a train as I had that day. The wagon-masters and teamsters were alike insubordinate. About 2 miles from Bristoe Station, a stream crossed the road. On the Bristoe side of the stream, General Porter and his staff officers directed and compelled all those wagons to be parked, so that none of them should precede my troops. That order was carried out. I was compelled to halt the head of my command on the Bristoe side of that stream for fully an hour, in order that my rear brigades might be united with the brigade in advance, and the cause of this separation was the train or trains on the road.
General Morell gives an account of the consultation held as to the execution of the order, and to the same general effect. Being asked:
Did the generals then present, yourself included, express in strong terms the difficulty of moving as early as 1 o'clock, or earlier than 3 o'clock?
Yes, on account of the difficulty of marching at night. It was a very dark night. It was cloudy and threatening to rain, and did rain before morning.
He proceeds as follows:
If we had moved at I o'clock, the men would probably have been kept up all night-- have broken their whole night's rest. That was what I wished to avoid, and I think the other officers did also. Reveille would have been beaten by 12 o'clock. I suppose some of the men did not get into camp until dark.
Question. When you moved at 3 o'clock, did you encounter difficulties and confusion in your movements in the darkness?
Answer. Yes, Sir; until we had the benefit of daylight, there was a great deal. Directly in front of our camp was a little stream of water, or swale, that made it difficult to get started.
General Griffin, speaking from his own experience in the execution of the order, is still more emphatic upon the same point. I cite what he says, giving both the questions and his replies:
Question. With a view to reaching Bristoe Station as early as possible that morning, and doing duty there, would it have been expedient or judicious to have started at 1 o'clock that night?
Answer. I think decidedly not.
Question. Please state your grounds for that conclusion.
Answer. I think if we had started just at daylight that morning, we would have arrived at Bristoe Station, if the road had been clear, even sooner than we did by starting at 3 o'clock in the morning, for we would have made use of the two hours of daylight that we were lying in the road. I mean by that, of course, that I think if we had started by daylight, we would have left camp properly, and would not have had the stoppages that we did.
In this connection, the same witness gives the following account of the difficulties which impeded his march:
I received an order, about 12 o'clock on the night of the 27th of August, to move my brigade at 3 o'clock in the morning. At 3 o'clock in the morning I started from camp toward Bristoe Station, and marched about a mile or less, to where 1 halted, and there I remained at the head of my column until about two hours after daylight. I know the artillery that followed the brigade-- that is, a carriage or two of the artillery which followed the brigade-- got stuck in the mud, or in a little creek, and had trouble in getting out. I also know that at 3 o'clock it was very dark, so dark that I used candles with my leading regiments to get through a little piece of woods which we left, in which we had been encamped. I also know that there is a bad peace for artillery at Catlett's Station. There is a very steep hill there, and also a piece of woods where the road is winding, and which would have made it difficult for artillery carriages to pass along, especially on a dark night. In fact, along on all the road to Bristoe Station there are several little places that would be very bad for artillery to pass over at night-- almost impossible in a dark night-- that might be passed over in the daytime.
Question. What caused you to halt when you did halt?
Answer. I halted because I found, when I got to the point where I did halt, that I had only a portion of my brigade with me. In the darkness, by some accident or other, we had become separated, and I halted to get my brigade together; and the artillery, I presume, is what detained us there until we started again. That is my impression. I do not know that positively. General Morell was in command of the division.
General Heintzelman, a witness called by the Government, gives testimony, at page 313  of the record, as follows:
Question. Will you state what was the condition of the road between Warrenton and Bristoe on the morning of the 27th of August?
Answer. It was a narrow road, in tolerable good condition; a part of it was through some woods.
Question. Were there any, and, if any, what, obstructions upon that road which would have impeded the movements of troops in large numbers?
Answer. They could only march in one line. There were a few little ditches that were bad crossing, and I think the road crossed the railroad perhaps once or twice. These crossings were bad. I do not recollect distinctly about the road. It was not a very good road, however.
Question. Will you state whether it was, to any extent, obstructed by wagons?
Answer. There was a large train of wagons behind us: a considerable obstruction.
Question. When you say that the wagons were behind your command, are we to understand that you mean to say that they were behind the command of the accused, or in front of it?
Answer. They were in front of the command of the accused.
Question. Will you state what difficulty you had in getting your own wagons up-- how long you were engaged?
Answer. The night was very dark; our wagons did not come up until an hour or two, perhaps more, after night.
Question. Had the accused left Warrenton Junction at I o'clock on the morning of the 28th of August, would that train have been in his way or out of his way in marching to Bristoe Station?
Answer. I do not recollect distinctly; but I do not think the train had got in the next morning-when we left.
Question. Was there on the 27th of August, a route of march practicable for General Porter's <ar17_1079> troops from Warrenton Junction to Bristoe Station, so far as you have knowledge of the country?
Answer. That would depend upon where the wagons were. There were places where the wagons would have entirely obstructed the road.
Question. Do you know where the wagons were?
Answer. I do not.
Question. Were there, or not, any repairs on the railroad between Warrenton Junction and Bristoe Station between the time when you passed over it and I o'clock of the morning of the 28th?
Answer. I believe not.
In conclusion of the testimony upon this point, I refer to the statements made by Colonel Brinton, lieutenant-colonel of the Second Pennsylvania Cavalry, stationed on the evening of the 27th of August last at Catlett's Station, which is about 3 miles from where my corps then were, and directly on the road to Bristoe Station, to which they were ordered. Colonel Brinton states that he left Catlett's Station to proceed to Warrenton Junction at about 10 o'clock that night; that he returned to Catlett's Station that night, occupying about an hour in returning, and arriving there about 1 o'clock. Thus he must have known, fully and exactly, the practicability of the road for troops at the very hour in question under this first specification. He first testifies that "the night was very dark and overcast; very cloudy; that it was difficult to distinguish the road or any objects on it."
After mentioning that there were two officers with him, his testimony proceeds as follows:
Question. Did you see any wagons on the road over which you traveled?
Answer. Yes, sir. The road from Catlett's Station, for half a mile westward, was blocked up with wagons. We ran into them constantly. The road is there a narrow one, leading through a wood, and it was difficult for us to get along on that account. We ran into a tree on the one hand, or a wagon on the other, without being able to distinguish until we were upon it.
Question. Did you frequently see wagons in the road with their horses unhitched, and their teamsters absent?
Answer. On my return, I noticed that horses were hitched to the wagons. I did not observe it particularly as we were going to General Porter's.
Question. When you reached General Porter, did you speak to him of the condition in which you had found the road?
Answer. Yes, sir; I did. In answer to his inquiry concerning the state of the road.
Question. Did he make of you any request in relation to the road?
Answer. Yes, sir. He requested me to try to have the road cleared, stating his intention to pass along with his corps.
Question. Did you do anything to comply with that request?
Answer. Upon my return, I told the adjutant to send out some men to get these wagons out of the way. The railroad bridge over Cedar Creek is one which, I think, it would be difficult to pass a party of infantry over at night; almost impossible, certainly, without danger. I passed over it, I think, two days before, and led my horse across it, but that was in the day-time; even then it was a difficult matter. Infantry could have passed over it well in the day-time, but the planks were thrown loosely on, and they would be likely to fall through at night. As I was leading my horse across, I saw one fall through that was being led over.
In his cross-examination by the judge-advocate occurs the following passage:
Question. When returning, having no occasion to look for General Porter or anything to interrupt your progress, did you, or not, proceed directly to Catlett's Station without encountering any obstacle growing out of the darkness of the night?
Answer. No, sir; I stopped several times at the wagon trains that lay in the road, between the ford of Cedar Run and our encampment at Catlett's Station. I had been told that our regimental train was one of those lying in the road, and I wanted to find it. And in stopping there, inquiring of the wagons, I experienced great difficulty in finding it. In one train the horses were unhitched from the wagons, and were standing at the wheels or at the tongues of the wagons, where they were fed, I suppose, and in many instances no wagoner could be found. It was my desire to find my own regimental train, which caused some delay. <ar17_1080>
Question. The point of the question is, whether your delay in returning was at all occasioned by the darkness.
Answer. It was indirectly occasioned by that, inasmuch as I could have readily found our wagon train if the night had not been dark.
Question. I wish to know, supposing you had passed over that road in the day-time-- say the evening previous-- and had been directed to return directly from Warrenton Junction that night, without having occasion to stop and make inquiries of any kind, whether the darkness was of such a character as would have delayed you in making that Journey?
Answer. In answer to that, I would say that I now recall the fact that before coming to the wagon trains we lost our way.
Question. My question is based upon the supposition that you had passed over the road the evening before, and had had the acquaintance with the road which that would have given you.
Answer. It is impossible for me to answer that question. I know that, in consequence of the darkness of the night, we did lose our way. How it would have been if we had more thoroughly known the road, I cannot say.
The following is the whole of his examination by the court:
Question. In the wooded part of that road, how far could you see wagons standing still?
Answer. I do not think I could distinguish a wagon 5 yards off.
Question. How far could you have seen one in the open plain?
Answer. It was so very dark that I do not think that would have made any difference.
Question. With the night as it was, and with the wagons as they were between 12 and 1 o'clock, would the movement along that road of troops in large masses have been practicable; I mean, of course, an orderly movement?
Answer. I do not know as 1 should answer that question. The court are more able to draw an inference than I am. I give simply the facts. I can give my judgment of it if it is desired. I should think it would have been very difficult to move a body either of infantry or of cavalry over that road at night; almost impossible. They might have been marched in file, following each other in that way.
Question. How as to artillery?
Answer. Artillery could not have been moved without moving the wagons.
Such is the concurring testimony of all the witnesses, who speak from personal knowledge, as to the impracticability of conducting a march of troops in force over that road in the darkness of the night, between 1 and 3 o'clock. As to the railroad which General Pope seems to think might have afforded a passage for the troops, Colonel Clary and Major Fifield, who, in pursuance of the very order now under consideration, were charged with the duty of forwarding the trains from Warrenton Junction to Bristoe Station, both declare that the trains and engines were moving up and down the railroad all the night, and made the movement of troops upon the railroad in the darkness alike dangerous and impracticable. Questions were put to one of the witnesses (General Griffin) by a member of the court, to the effect whether infantry might not have passed over the road during the night if the artillery were left behind, with a proper force to bring it up afterward.
In addition to the unusual, if not unexampled, character of such a movement which appears from the testimony of the witness upon the point, it must be borne in mind that the adoption of such a course by me would have been in direct and palpable violation not only of the letter but of the whole spirit and meaning of the order which I was trying to execute. That order expressly directed me to "come forward with your whole corps, or such part of it as is with you," and, to make the meaning of the order still more explicit upon this point, the postscript of the order proceeds to specify the single contingency in which two pieces of artillery only, out of the six batteries which I had with me, might be left behind. The language of the postscript is:
If Banks is not at Warrenton Junction, leave a regiment of infantry and two pieces of artillery as a guard until he comes up, with instructions to follow you immediately.
If, therefore, there was a single point in the order in regard to which all discretion in executing it was precluded, it is this very point of not leaving my artillery behind. To have so left it would have been to make a false military movement, unwarranted by any known example, incompatible with efficient action by my corps at Bristoe, and in direct violation of a positive order.
It is stated by General Pope in his testimony that the want of ammunition in General Hooker's division, then in the near vicinity of' Bristoe Station, was an immediate and principal cause of the urgent terms in the order directing me to hasten forward. To this I reply that no such cause of urgency is alluded to in the order itself, though it makes express reference to the state and position of General Hooker's division, nor is there in the whole case a single word of proof tending to show that I knew or suspected, or in any way could have known, that his ammunition was nearly exhausted.
It should also be borne in mind that the very trains upon the railroad, which General Pope directed me to have hurried forward to Bristoe Station, under the superintendence of Colonel Clary, were themselves laden in part with the ammunition which, though I did not know the fact, was there needed. That after the commencement of the march, at 3 o'clock, no personal efforts of my own or of the officers under me were spared to hasten on the movement is, I believe, conceded. Captain DeKay himself on this point testifies that both myself and the officers of my staff made great personal exertions to clear away the wagons at the points where the obstructions occurred.
General Pope testifies that I sent two or three messengers to him to request his aid in clearing the road, and Colonel Brinton, whose regiment was at Catlett's Station, testifies that when he left me, at about 12 o'clock that night, I made the same request to him, and that he detailed a command for the purpose. I understand, also, that my execution of all the precautionary details embraced in the order is not disputed, and that the only point on which I am charged with disobedience to it is in commencing my march at three o'clock in the morning, instead of at one.
The facts upon which I exercised this discretion are fully before the court, and I leave them with all confidence to its judgment. The right, of a general commanding an army corps to exercise a Judicious discretion in regard to the best method of executing an order from his commanding general at a distance-- and in this case General Pope and myself were 10 miles apart-- is too well settled both in military law and military practice to admit of a question. Among the many authorities which may be cited to this point, a single one will suffice. In the work entitled "Napoleon's Maxims of War," published at Paris in 1830, and translated by the Count d'Aguilar, and published in 1861, with a recommendatory preface by Lieutenant-General Scott, at page 42 of the Paris edition occurs the following passage.
A military order exacts passive obedience only when it is given by a superior who is present on the spot at the moment when be gives it. Having then knowledge of the state of things, he can listen to the objections and give the necessary explanations to him who should execute the order.
This is not only military law and authority, but it is the only view compatible with the nature of military service or the dictates of common sense. But if the right to use, upon his responsibility, a just and salutary discretion within proper limits is thus vested in every commanding officer, under the circumstances referred to, then it is equally true that the exercise of such a discretion becomes not only a right but also a manifest and imperative duty, when the order is received in a condition of facts wholly unknown to the officer who gives it, wholly different from that contemplated upon its face, and yet bearing most naturally upon the question of the best mode of carrying its real meaning and purpose into effect. That this was precisely the case when I received the order which I am charged with disobeying, is shown by all the testimony, and is undoubtedly fully known to the court.
It may be proper to add, in closing my observations upon this specification, that it fully appears in the testimony that, when I arrived at Bristoe Station, no exigency had presented itself requiring the presence of my corps at that point. General Pope himself, indeed, testifies that the necessity which he contemplated for my early arrival there, when he sent me the order, did not, in fact, occur. But I expressly abstain from laying any stress upon this fact. It should, in my judgment, be considered merely as an accident, fortunate, indeed, but still an accident. I rest my defense upon the grounds above stated, that I executed the order in its full spirit and meaning, to the best of my judgment and ability. It occurred to me during the march, and I have been inclined to believe since, that I may have erred in fixing the hour of march, as I did, at 3 o'clock rather than at daybreak. Positive error, however, in this direction, especially in a case so doubtful, may be overlooked. But had I fixed the hour at 1, and so caused reveille at or about 11, and thus kept my corps-- a large part of it, at least-- already almost broken down with the fatigue of long and incessant marches, stumbling about in their camps in the thick darkness of that night, in order then to attempt to move into the road, and grope and stagger and straggle about in a vain and most fatiguing effort all through the night to no use, for what [no] purpose whatever but only to have the day dawn, as it surely would have dawned, and did dawn, upon their inextricable confusion and their broken strength a mile or two, more or less, beyond their camp, then I should, in my judgment, have done an act of wanton cruelty to my command, and at the same time have perpetrated a gross and inexcusable military blunder. If, then, all exigency had really arisen requiring their presence at Bristoe Station early in the morning, in a condition for efficient service, in that case the blunder thus perpetrated would have been aggravated into a crime, for which the literal compliance with the order, written when and where it was, and reaching me as it did, might indeed have been pleaded in excuse, but could not have furnished either to my conscience as a man, or to my judgment as an officer, or to the judgment of the President of the United States, or of this court, or of the country, any adequate justification.
I come now to the second specification of the first charge, which alleges that I disobeyed the order of the 29th of August, addressed jointly and severally to General McDowell and myself, and designated in the testimony as the joint order. The substance of this order is, that General McDowell's corps and my own were to proceed toward Gainesville, on the road running from Manassas Junction to that place, until we should form a junction with other specified corps, which the order supposes to be not far from Gainesville. Then we are to halt. The order proceeds to give in express terms a discretion as to our action under it, and concludes by enjoining upon us not to proceed so far in the direction which it prescribes as to preclude our falling back behind Bull Run on the night of the 29th or in the next morning. After a careful examination of this specification, and of all the testimony, I fail to understand upon what point or in what manner I am considered to have disobeyed this joint order. General Pope, upon being asked in his examination-in-chief as to the manner in which I had disobeyed this joint order, stated, if I understand him, that I had partially obeyed it and partially disobeyed it; giving, however, no particulars of such partial obedience or disobedience on my part. Being examined further upon this point, he began by stating that I had failed to attack the enemy in flank, as directed to do, not by this joint order, which is now in question, but by the subsequent order of 4.30 p.m. of the 29th, which is not now under consideration. General Pope, then returning to my alleged disobedience of this joint order, produces a note which, on the 29th, I addressed to Generals McDowell and King, in which, after stating my information and belief that our troops were falling back toward Bull Run, I expressed my determination in that state of facts also to fall back to Manassas Junction.
In the same note I stated my unsuccessful efforts to effect a junction with the other corps, as anticipated in the joint orders and some of the reasons why those efforts failed. Now, the writing of this note by me, upon information which turned out to be erroneous, and the expression of determination, in view of such information, to make a retiring movement to Manassas Junction, which I actually did not make, because, in the mean time, my first erroneous information had been corrected by surer intelligence; all this is certainly no act of disobedience. In point of fact, it is no act at all. It is only the expression of an intention never carried into effect; an intention proper, under the circumstances in which it was formed and announced, and an intention which was abandoned by me as soon as more correct information showed its abandonment to be proper. Yet, if my actual disobedience to this joint order does not consist in writing this note and sending it to Generals McDowell and King, then I ask in what else is it charged that I did disobey this joint order? The joint order directed me to proceed toward Gainesville. It is fully proved that when I received that joint order I was already proceeding toward Gainesville under a prior order (referred to in the joint order) to that effect, and that I continued to proceed toward Gainesville in pursuance of that joint order. That order directed me to halt as soon as I could form a junction with the other specified forces, supposed to be near Gainesville. I proceeded until I arrived about on a line with the position of those forces; perhaps a very little in advance of them in the Gainesville direction, and then I did halt, and did make such efforts as it was in my power to make to effect that junction; relying for that purpose mainly upon General King's division, so long as it remained with me, and baffled in this purpose in spite of all my efforts, first, by the unexpected position and force of the enemy immediately in my front; secondly by the unexpected position of our own corps, specified in the order, which the order anticipated would be much nearer Gainesville than they actually were; thirdly, by the impracticable character of the country between me and them, and, fourthly, by the fact that General King's division was soon taken away from my command by my senior officer, General McDowell, acting with the authority which, under the Sixty-second Article of Wars and by the discretionary terms of the joint order, he considered himself to possess.
In proof of all this, I refer in the first place to the testimony of General McDowell, a witness for the Governments who declares that the joint order found, when it reached us, both his corps and my own executing the very movement which it prescribed. He further declares that the execution of that movement, by both of us, continued under his own direction, as senior officer, until he himself modified the joint order, in the exercise of the discretion which it allowed, by separating his own corps from mine, and pursuing with it a direction not indicated in the joint order.
I refer, in the next place, on this point, to the testimony of Colonel Locke, my chief of staff, who testifies that he delivered to me, between I and 2 o'clock p.m., about half an hour after my last interview with General McDowell, on the 29th, a message received by him from General McDowell, directing me to remain where I then was, and informing me that General McDowell would take General King's division along with his own corps. It is true that the giving of such a message to Colonel Locke, to be delivered to me, is not, as General McDowell states, recollected by him; nor is the hearing of it recollected by. General King, in whose presence Colonel Locke testifies that it was given. But that it was delivered to me by Colonel Locke, as a message from General McDowell, is affirmed and reaffirmed by that officer in the most solemn manner, as a fact within his positive knowledge and perfect recollection. He corroborated the distinctness of his recollection of its delivery to me, by detailing to the court the unusual tone and manner in which he delivered it to me, and the circumstances and the reflections of his own at the time, which fix indelibly hi his memory the message itself, and induced the peculiar manner of its delivery to me, as being, in his judgment, at the time, a fact of a grave and momentous character; indicating nothing less than the taking away from me of my reserve-- which he considered King's division to be-- at the moment when, as he then supposed, the enemy, posted in order of battle, in great and accumulating force in our immediate front, was about to commence its attack upon my corps. The delivery of this message to me at that, time by Colonel Locke, who is entirely uncontradicted as to its delivery by him then and there, the court will unquestionably concur with me in considering as one of the facts most surely proved in the whole case.
Now, I submit to the court that the delivery to me at this time by Colonel Locke, my chief of staff, of this order as a message from General McDowell, puts an end to all question as to my disobedience of the joint order. Up to the time this order or message from General McDowell was received, I had been acting jointly with him, but subordinately to him as my senior officer, in the execution of the joint order. His last act, while he was engaged in the very process of separating his corps from mine, that is, as he testifies, in the very process of modifying the joint order-- his last act while so engaged was an Order, as reported to me by my chief of staff, directing me to remain where I was. That order so reported to me was either in pursuance of the joint order or else it was in modification of the joint order by my senior officer, who, under the discretionary terms of the joint order, possessed, and stated that he possessed, the right so to modify it. It is not denied anywhere that this order, reported to me from General McDowell, directing me to continue to hold my then position, was fully obeyed by me. I did continue to hold my then position until I was ordered away from it, some hours afterward, by General Pope himself, in the order set forth in specification fourth of the first charge, and bearing date 8.50 p.m. of the 29th.
Thus, so far as the joint order was concerned (alleged disobedience of which is the whole of the second specification of first charge), I did to the last obey either the order itself or a legal and authoritative modification of it.
I now proceed to the third specification of the first charge. It alleges disobedience to an order, which it recites as follows:
HEADQUARTERS IN THE FIELD,
August 29, 1862-- 4.30 p.m.
Your line of march brings you in on the enemy's right flank. I desire you to push forward into action at once on the enemy's flank, and, if possible, on his rear, keeping your right in communication with General Reynolds. The enemy is massed in the woods in front of us, but can be shelled out as soon as you engage their flank. Keep heavy reserves, and use your batteries, keeping well closed to your right all the time. In case you are obliged to fall back, do so to your right and rear, so as to keep you in close communication with the right wing.
In defense to this specification, I affirm and have, as I contend, fully proved before the court--
1st. That complete obedience to it by me was impossible, even if I had received it at the moment that it purports to have been written, that is, 4 p.m. on the 29th of August; and such complete obedience to it by me was by still stronger reasons wholly impossible; as a military movement would have been wholly inexpedient, injudicious, and improper, even if it had been possible at the hour when I had received it-- that is to say, at or nearly at 6 p.m. of the 29th, when the sun had set, or was just about setting.
2d. I affirm and contend that I have fully proved before this court that, in compliance, so far as possible, with the manifest spirit, purpose, and meaning of this order, I did take measures to carry out the spirit and to accomplish that purpose, and that those measures so taken by me were the only practicable measures for me to adopt under the circumstances, and were far more useful than any attempted literal compliance with the order by me could have been, and that any such attempt literally to obey it, made by [me] at the time when I received it, would have been nothing less than official delinquency, if not crime.
It is needless to add that, if I make out these propositions as here stated satisfactorily to the court, I ask at their hands an honorable acquittal under this specification.
To begin, the fundamental averment of the order upon which it all rests is entirely untrue. That averment is, that my line of march, as pursued under the joint order above referred to, brought me in on the enemy's right flank. The fact is, that my line of march as so pursued brought me not in on the enemy's right flank, but did bring me in directly upon the front of a separate force of the enemy, from ten to fifteen thousand strong, of the presence of which, thus directly in my front, General Pope, when be wrote the order, was wholly ignorant. He must plead this total ignorance as his sole possible justification for sending me this order, because it is abundantly in proof that if I had executed or attempted to execute the order literally, either at the moment when it was written or at the moment when it was received, by falling upon Jackson's right flank, which, as is proved, it was intended to direct me to do, then my column, moving to accomplish that object, must have suffered one of two inseparable and fatal disasters. If I had attempted to move across the country in a direct or nearly a direct line to Jackson's right, I should have been exposed to a murderous attack by the enemy posted in my front, upon the left of my advancing column, as it must then have passed along directly under the fire of that enemy as it moved toward Jackson's, through a country over which I could only have passed with my corps, if at all, in extreme disorder and without artillery. If, on the other hand, I had adopted the only other course left open to me of falling back to Bethlehem church, and then following in the track by which General McDowell had proceeded three hours before this order was written, up the Sudley Springs road to the battlefield, then the enemy thus posted in force in my immediate front must undoubtedly have fallen upon my rear with such crushing effect as to destroy or rout my whole column.
Thus I affirm that the key to the whole situation, which I held, both at the time this order was written and at the time when it was received, was the presence of the enemy, unknown to General Pope, directly in my front, at a distance of not more than 1,200 or 1,500 yards, and in great and accumulating force, consisting of artillery, infantry, and cavalry.
This enemy, thus posted, I could not attack on his right flank, because his right flank extended farther southward than my extreme left.
This enemy I could not attack on his left flank, because to make such an attack I must have passed through an impracticable country, and, in the inevitable disorder consequent upon that character of the country, my column would have been, as it moved along, exposed to the assault of Jackson's right, and at the same time to the resistance of the separate corps of the enemy, against which it would have been moving.
This three of the enemy thus in my front I could not attack in front, because to have made such an attack in front upon him would have been to uncover my own troops, and present them wholly exposed to his attack from under cover, and in a strong position, while they were moving or attempting to move through an open space, consisting of a country broken with defiles and obstructed by patches of timbered land, through which troops could not pass in order and artillery could not pass at all. Besides this, it is wholly manifest that no such attack upon a separate force of the enemy, posted in my front, was in any way contemplated by the order under consideration.
I proceed now to cite from the record the testimony of eye-witnesses, proving the whole situation as above described.
I begin by incorporating in this defense, as a part of it, the entire testimony of Colonel Marshall, captain in the Regular Army and colonel ThirteenthNew York Volunteers. I thus present the whole of his examination in chief, his cross-examination by the judge-advocate, and his examination by the court. I give this prominence to his testimony, first, by reason of the fact disclosed in the testimony itself, that what he thus deposes is the highest and best possible evidence in the case, he having been specially assigned, early on the 29th of August, with his regiment, to which another regiment was soon added under his orders, to the sole and exclusive duty of making a careful, continuous reconnaissance of the enemy, and of his constantly advancing and accumulating force in my immediate front, and of the whole military situation to the right of my column, where Jackson's right was operating, and also to the left of my column, in which direction the enemy's line likewise extended. I bear in mind, also, in making this use of Colonel Marshall's entire testimony, the circumstances under which, and the manner in which, it was given, all of them making, as I believe, upon the court as strong an impression as upon myself. His testimony was given by him at his quarters, upon his bed, to which he was confined by a grievous and nearly fatal wound, received in the recent battle at Fredericksburg. His face was pale from weakness and loss of blood, but his eye was bright and keen with the intelligence and the spirit of a true soldier, and what he had to say was spoken with an exactness of detail and a confident precision of statement entirely fitted to carry with it absolute conviction of its accuracy.
Colonel Marshall's testimony is as follows:
Col. E.G. MARSHALL was then called by the accused, and sworn and examined as follows:
By the ACCUSED:
Question. Will you state what is your rank and position in the service.
Answer. Colonel of the Thirteenth New York Volunteers and captain in the regular service.
Question. Where were you on the afternoon of the 29th of August last?
Answer. I was o, the road leading to Gainesville-- the road from Manassas Junction.
Question. On what duty?
Answer. On duty with General Morell's division, in General Porter's corps, and commanding my regiment.
Question. Specify the character of the duty you were performing that afternoon.
Answer. About 1 o'clock I was detailed by General Porter to go with my regiment across all open country and a ravine to some timber that was facing our line of battle, and deploy skirmishers to find out the position of the enemy, and anything else that I could find out concerning them.
Question. State the position and force of the enemy in the immediate vicinity of General Porter's command, as far as you know it.
Answer. Immediately after going there, my skirmishers were fired on by a body of dragoons, and shortly afterward there was a section of artillery which opened fire upon General Porter's command. Soon after that, perhaps about 2 o'clock, the head of a large column came to my front. They deployed their skirmishers and met mine, and about 3 o'clock drove my skirmishers into the edge of the timber. We were all on the left of the Manassas Railroad, going toward Gainesville. Their force continued to come down all day, in fact, until 1 o'clock at night. It was a very large force, and they were drawn up in line of' battle as they came down..I reported at different intervals to General Morell, my immediate commander, the position of the enemy. But at one time I deemed it so important that I did not dare to trust orderlies or others with messages, and I went myself up to him to confer concerning the enemy. This was about dusk. General Morell told me that he had just received orders from General Porter to attack the enemy-- to commence the attack with four regiments. He seemed to be very much troubled concerning the order, and asked my advice, my opinion. I told him by all mean's not to attack; that it was certain destruction for us to do so; that I for one did not wish to go into that timber and attack the enemy. Their position was a very strong one, and they were certainly in force at that time twice as large as our own force-- all of General 'Porter's corps. He had expressed to me the tenor of General Porter's order. I also deemed that we had executed the same with reference to the other part of the army-- General Pope's army-- by keeping this large body in force, and better than we would by attacking them, because if we had attacked them I felt that it was certain destruction, as we would have had to move our line of battle across this ravine into this timber, and then, perhaps, our line of retreat would have been entirely cut off from General Pope's army.
I may say that this army that came down in our front was a separate and distinct army of the enemy from that which we saw General Pope's army fighting with.
About the same time, before I went in to General Morell, I could hear and judge of the result of the fighting between the force of the enemy and General Pope's army. I could see General Pope's left and the enemy's right during the greater part of the day, about 2 miles off, perhaps more, diagonally to our front and to the right. The enemy set up their cheering, and appeared to be charging and driving us, so that not a man of my command but what was certain that General Pope's army was being driven from the field.
In the different battles I have been, I have learned that there is no mistaking the enemy's yell when they are successful. It is different from that of our own men. Our own men give three successive cheers, and in concert, but theirs is a cheering without any reference to regularity of form-- a continual yelling.
Afterward, at dark, I was sent for by General Porter, and questioned very stringently with reference to the enemy; and my remarks to him were the same as I am now making, and as I made to General Morell. I also stated in conversation that I felt that our right was very weak, and that the pickets should be increased, for there was danger of our being cut off entirely from General Pope's army; and I was given one regiment under my command to go to the right of me, and four companies of another regiment to go on the left of me, as pickets; and General Griffin was also ordered to place a strong force on my right, and to connect with me.
Question. The position and force of the enemy being as it was between 5 o'clock <ar17_1088> and dusk, and the position and force of General Porter being as it was at that time, was it possible, 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?
Answer. 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 this 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.
Question. They would have attacked you in flank if you had attempted that movement?
Answer. Yes, sir.
Question. Do you know that the order to attack, sent to General Morell from General Porter, was predicated upon the news which General Porter had received that the enemy was retiring?
Answer. General Morell told me that the news was that the enemy were retreating, and, says he. "We know to the reverse; that they are not."
The examination by the accused here closed.
Examination by the JUDGE-ADVOCATE:
Question. Did the force of which you speak seem to come from the direction of Thoroughfare Gap?
Answer. Yes, sir. Whilst the command was being got into line, prior to my going on this duty, my brigade was behind some others. General Porter had sent some dragoons of another regiment to the front, and my brigade was waiting in the road to get into position. I went to the left, and I could see a long line of dust, in fact, I saw two lines, one going along parallel to the mountains, and the other one coming down through Gainesville, and it appeared to be close upon Gainesville at that time, perhaps this side of it; I cannot tell exactly, for I have never been to Gainesville but the head of the column seemed to be about 5 miles off at that time.
Question. At what hour of the day was that?
Answer. It was 12 or half-past 12 o'clock. I joined my regiment and went on this duty at 1 o'clock. I should say the whole column of the enemy extended to Thoroughfare Gap. This column came down, and came rapidly to our front, as it appeared along the Manassas Railroad. Their whole line seemed to be in the general direction of the railroad from Thoroughfare Gap down to our position. The other line of the enemy's left seemed to go to the left of the enemy's left that were fighting with General Pope. I was so close to the enemy that I could hear their officers give the command to wheel into line, and other commands that they gave, sometimes correcting their men.
Question. You spoke of another line of the enemy's forces that seemed to be proceeding in the direction of the battle-field. Did that line also appear to have come from the direction of Thoroughfare Gap?
Answer. They seemed to come through the same Gap. The two lines joined together at a point just this side of the Gap; where it was I do not know. It was a long distance off from our position. One line seemed to come directly down to the left of the enemy's extreme left, I should judge, and the other column came down to our front. There seemed to be two large armies.
Question. Did you make your estimate of the amount of that force principally from the extent of the line as indicated by the clouds of dust, or had you other means than that of judging?
Answer. My estimate was made mostly from the length of time in which they were coming down-- there appeared to be artillery and infantry-- and the time that we were attacked; and also what I had seen of the enemy's dust prior to going on this duty, and the length of their lines, as much as I could see of it, in our trent.
Question. Would it have been possible to have distinguished the Clouds of dust raised by artillery and infantry from those raised by wagon trains moving?
Answer. No, sir. You cannot tell the difference, except by the quickness of movement of these columns. They seemed to move very quickly, which caused me, before going on this duty, to judge that it was the enemy coming. I judged that the advance of the enemy was dragoons, from the fact that there was always a dust ahead of and disconnected from the main column, which moved quicker even than the rest of the line; and, therefore, before going on this duty, I judged that the enemy were coming down to our front.
Question. Would not an ambulance train move as quickly, or very nearly so, as would the artillery?
Answer. Yes, sir.
Question. If the enemy had been in as large force as you suppose, double the force of General Porter's corps, do you not think they would have made an attack on you on the evening of the 29th of August, or would have prevented your withdrawing from there on the morning of the 30th?
Answer. I do not think they would have made an attack on the 29th. Our position was a very good one; and, if they had attacked, they would have had to move their line over toward us. But I think that, on the morning of the 30th, if we had remained there, they would certainly have attacked us.
Question. You withdrew in their immediate presence, did you not?
Answer. Yes, sir. My opinion on the 29th, while I was on that duty, was, that they desired to remain on the defensive and have us attack them, feeling confident of their position.
Question. At what hour on that evening did you first receive the impression that the battle was going against General Pope?
Answer. Between 4 and 5 o'clock.
Question. Do you think that you communicated to General Morell, as fully as you now state it, your impressions as to the strength of the enemy in your front?
Answer. I think that I did. My object in going in myself to confer with him was that he might get correct impressions; that a dispatch, or a message by an orderly, would not answer.
Examination by the judge-advocate here closed.
Examination by the COURT:
Question. How large a force of the enemy did you see on that day with your own eyes?
Answer. I cannot tell you. I could merely judge of their strength. It was a dense timber in which I was. We would get a view of the enemy first from one point through the timber and then from another. There was no place in which I could see their whole line. Their line of skirmishers was two regiments, at least, whereas mine was but one; and then, again, their troops appeared to be lying down behind this railroad.
Question. Was the line of the enemy extended over the road which General Porter would have used in reaching the right flank of Jackson's forces?
Answer. Provided General Porter had gone directly to General Pope's left, do you mean?
Question. Yes, sir; was that road open or free?
Answer. That road was blocked up by the enemy. There was no direct road to go over to General Pope's left, except by this road that the enemy already had.
Question. Did the enemy in your front make a junction with the enemy in General
Pope's front, according to your understanding?
Answer. I do not think they did.
Question. What space do you suppose there was between the two parts of the enemy's forces?
Answer. They would naturally have made a connection with their dragoons. But their line of battle was not a continuous line. Their line of battle in front of General Porter's command was separate and distinct from their line of battle in front of General Pope's command.
Question. What was the space between their two lines of battle, should you think? Answer. I should judge it to be at least 2 miles.
Question. 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?
Answer. 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 perceive 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.
Question. Not practicable because of the character of the country or the position of the enemy?
Answer. 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 have carried artillery through there, besides being fired upon and met by this enemy in our front. Question. Did you go over that part of the country yourself? Answer. I could see it; I did not go over it.
Question. What would have been the distance of the march if it had been made?
Answer. He would have had to have gone, perhaps, halt a mile or more out of the way by going a little around to the right.
Question. Was that route open, or was it obstructed, either by the nature of the country or by the enemy
Answer. It was obstructed by the nature of the country. Whether it was or not by the enemy, I do not know. I was I old that their dragoons had taken some prisoners at that point, which we would have had to cross over. That point looked to me during the whole day to be a very dangerous one; and that night I so expressed myself, and requested that a strong force should be put in that direction to watch our right.
Question. You have spoken of General Morell's division being drawn up in line of battle fronting the enemy. Will you please state, if you know, the relative position of the remainder of General Porter's corps to that force of General Morell, at the time they were drawn up in line of battle, and your command thrown forward as skirmishers?
Answer. I was informed that they were directly in rear of us when I went on that duty.
Question. Were they in line of battle?
Answer. I do not know. I did not see them. I do not know anything about that. I was informed that they were close behind us. We were in the advance.
Question. You have stated that General Porter's direct march toward Jackson's right was obstructed both by the character of the road and by the enemy.
Answer. His direct march by the most direct route was obstructed; that was held by the enemy.
Question. Was the circuitous route you have spoken of absolutely obstructed or not? Was it a practicable route in any sense?
Answer. I do not think it was a practicable route in any sense, by day or night. I do not think there was any route left for General Porter to have acted upon, except by going back again on the road to Manassas, and then joining our army.
Question. What length of time would it have required to make that march, returning in the way you speak of?
Answer. I cannot tell you the length of time. It would have taken several hours, perhaps about half a day, to have marched and got into position again, so as to have had any effect.
Question. Was that the road taken by you on the 30th?
Answer. Yes, sir.
Question. Did it take a half a day, then?
Answer. I do not know how long it did take us. There was a data which I do not recollect. I would like to say here that I had been out on picket with my command from 1 o'clock on the afternoon of the 29th all that night, until the next morning. We had had nothing to eat until the next morning, and then. I could get only a little hard bread, which I made my men carry on their shoulders until we could stop on the march somewhere for them to eat it. I did not feel like making any observations, but went right to the battle-field and into the fight.
Question. Of the line of battle formed by the enemy opposed to General Porter's command between 5 o'clock and sundown, what portion of the enemy's troops were south of the Manassas Railroad.
Answer. They were more along the railroad. The railroad came down close to us, off a little to the right of my skirmishers,; so that, in advancing my skirmishers, my right came on to the railroad much sooner than my left.
Question. Were any of the enemy's forces south of that road?
Answer. They were along the railroad, but none this side of it, except skirmishers. I met dragoons along the whole front, and particularly on this direct road; and then afterward their skirmishers came to my front and extended in a longer line than I did, and drove me in.
Question. Supposing the force of General Porter to have been extended from the point, where General Morell's command was down to Bethlehem church, could not a large portion of them have moved along the Sudley Springs road to the battle-field within a much shorter period of time than you have named for the whole movement?
Answer. By all means, much sooner than we would.
Question. Do you know any reason why that road was not practicable for an advance on the 29th?
Answer. I do not know any reason why it was not practicable.
Question. Would such a separation of General Porter's corps on the 29th, by a part of it moving up the Sudley Springs road to the battle-field, have been an eminently dangerous military movement at that time, considering the position and force of the enemy in front?
Answer. It would be unusual to separate parts of a corps, and particularly with such a large force of the enemy in our front. It would have left us very weak in our position in the advance. I understood that the part of the corps that was left behind by General Porter was left there as a support to us, to be used any direction that he saw fit. It would have been unusual, and I think it would have been criticized by General Porter's officers, to have sent them off in any other direction, leaving us alone with this large force of the enemy in our front.
Question. Suppose the case of an order from General Pope to General Porter to make the movement to assault the right of Jackson's army, could that Sudley Springs road have been taken by any portion of General Porter's corps to accomplish that object?
Answer. Yes, sir; it could have been taken, but it could not have been taken when we got the order in time to have met the enemy and done anything.
Question. You mean done anything by daylight?
Answer. Yes sir; by daylight that day-- to have done anything that day.
Question. Did the battle cease immediately after daylight?
Answer. Yes, sir; the battle ceased about dark.
The examination of this witness here closed.
I might rely upon this testimony alone as entirely conclusive for my answer to the third specification of first charge now under consideration, but it is proper for me to say that in this testimony Colonel Marshall is supported by the clearest corroborating evidence.
In this connection I refer, in the first place, to the testimony of Major Hyland, which is found on pages 697 to 703 [995-997] of the record. Major Hyland belongs to the same regiment of observation, the Thirteenth New York Volunteers, of which Colonel Marshall is the commanding officer. Premising that Major Hyland, in his examination-in-chief, stated that his regiment and himself with it were employed as skirmishers to the front of General Morell's division from about 1 o'clock of the afternoon of the 29th until daylight of the next day, and that the Twenty-second Massachusetts and Betdan's Sharpshooters were placed on the same duty, and that he also stated, speaking of the enemy, that he could hear the commands plainly, as if forming in line, and that he also heard the movements of their artillery coming into position, I cite for the consideration of the court the whole of the evidence given by him under the cross-examination of the judge-advocate, and in reply to the subsequent questioning of the court. It is found on pages 701, 702, 703 [995-997] of the record, and is as follows:
Maj. GEORGE HYLAND, jr., called by the accused, and sworn and examined as follows:
By the ACCUSED:
Question. What is your position in the Fifth Army Corps, and what was it during the latter part of August?
Answer. I was major of the Thirteenth New York, the second regiment in the First
Brigade of General Morell's division of General Porter's corps.
Question. Where were you on the 27th of August last?
Answer. I was with my regiment, on the march from Kelly's Ford to Warrenton Junction.
Question. At what hour did your regiment arrive at Warrenton Junction?
Answer. They arrived there about dusk of the 27th.
Question. What was their, condition as regards fatigue?
Answer. They were very much fatigued and worn out. They also needed provisions, as they had had no provisions that day to any amount.
Question. At what hour did you march the following morning?
Answer. About, 3 o'clock.
Question. Where were you on the morning of the 29th of August?
Answer. On the march from Bristol to Manassas Junction. Question. Where did you go from Manassas Junction?
Answer. We went on the Gainesville road; on a road to the front leading to Gainesville, I supposed; I did not know at the time what road it was.
Question. How Was your regiment employed on the afternoon of the 29th?
Answer. It was employed as skirmishers.
Question. How was it situated with respect to your command-- Morell's division?
Answer. We were to the front of Morell's division. Question.
How long were you so employed?
Answer. We were so employed from about 1 o'clock of the afternoon of the 29th until daylight of the next day, the 30th.
Question. What, other regiments were engaged in the same duty?
Answer. The Twenty-second Massachusetts and Berdan's Sharpshooters were placed on our left in the evening.
Question. Was there any enemy formed in your front during that time?
Answer. There was.
Question. Do you know at what hour they commenced forming, or about what hour?
Answer. They commenced forming between 2 and 3 o'clock, I think.
Question. Do you know the route by which they came?
Answer. They came from a direction which I was told was from Thoroughfare Gap. There appeared to be two columns of them.
Question. And along what road?
Answer. They came down the railroad, as I supposed at the time, and filed to our right.
Question. Can you point out on the map before the court the position occupied by your regiment, and the position occupied by the enemy on that day?
Answer. [The witness indicated the position on the map.]
Question. Were the enemy, at any time, forming on your left and front?
Answer. No, sir; I did not see any enemy to our left. There was none there that I was aware of.
Question. Did they pass at all to our right of the railroad?
Answer. Yes, sir; they passed to our right and front; I could hear them very distinctly.
Question. Have you any knowledge of their forming to attack during that day?
Answer. Yes, sir; I could hear the commands plainly as if forming in line; I could hear the movements of their artillery coming into position.
Question. Did any of their artillery open upon you during the day? Answer. The artillery to the right of our skirmishers opened upon us. Question. Not the artillery that was in your front?
Answer. Not directly in our front.
The examination by the accused here closed.
Examination by the JUDGE-ADVOCATE:
Question. How far in front of General Morell's command did your regiment, in its duty as skirmishers, proceed in the direction of the enemy?
Answer. Probably from 800 to 1,000 yards.
Question. What is the character of the country there?
Answer. The country in front of us was quite heavily timbered. Between us and General Morell's division the country was an open country, with a deep ravine there, and a stream running through it. In front of us it was heavily timbered, and there was also some scrub pine.
Question. Can you state about what force of the enemy took position in front and right of your regiment, as deployed in advance of General Morell's division on the 29th?
Answer. I could not state the number, but it appeared to be a very large force, indeed.
Question. Can you state how many thousands, or divisions, or regiments?
Answer. I could not state the number of thousands or divisions. I judged from the movements, and from the commands given, that there was a very large force, indeed; probably a larger force than we had.
Question. Did you report this force to General Porter or to General Morell?
Answer. I reported to Colonel Marshall, my commanding officer.
Question. Do you think the force of which you have spoken was sufficient to have made a successful resistance to General Porter's entire corps?
Answer. I do.
Question. Do you base that opinion upon the supposition that the enemy had there more than 10,000 or 12,000 men?
Answer. I could not state the thousands. But from what information I had, and from what I could get from the other officers, I thought their force was very heavy, indeed. I should think there were probably 10,000 troops in front of us, judging by the columns of dust that I also saw coming from the same direction.
The examination by the judge-advocate here closed.
Examination by the COURT:
Question. In your answer as to the strength of the enemy in front of you, do you take into consideration the location of the enemy as adding strength to his position?
Answer. I do.
The examination of this witness here closed.
In corroboration of the evidence given by those two officers. I refer next to the testimony of Lieut. James Stevenson, of the same regiment (the Thirteenth New York Volunteers), who, as he states, has been nearly two years in the service with his regiment; was with it on the Peninsula during the seven days' battles before Richmond, and in the recent battle at Fredericksburg. His testimony appears from 808 to 822 [1022-1026] of the record.
Seeing the enemy in my front from a different point of view from that of the other two officers, he fully confirms in his several answers, in general terms, their statements as to the position and force of the enemy. He states that he saw the enemy in regiments, and, from all that he could observe, he judged their force in the immediate front of my column to be, during the afternoon of the 29th August, from twelve to fifteen thousand men. But what is special in his testimony is the fact stated by him, that on the 29th of August, between 1 and 4 o'clock in the afternoon, he passed from the left flank of General Pope's army to the position then occupied by Colonel Marshall's regiment. He made the passage in as direct a line as he could. There was no direct road which he could take, and he went across the country. He states that it was rather rough country, partly wooded, with a number of small ravines, and that, in traversing, he found it necessary to dismount once or twice. He states positively that it was not a country through which troops, infantry and artillery, could be marched in large masses. He also states that if I, with my corps, had taken the direct route to attack the enemy, who were engaged with Pope, I must have passed over about one-third or one-half of the different ground which he traversed. He adds the confident and repeated statement that I could not have moved with my corps to make an attack on the right flank of the enemy, engaged with General Pope, without exposing my own column as it moved to the attack of the enemy formed in my front. This opinion, not given as that of a military expert, but simply as that of an intelligent eye-witness, baring had very special and peculiar opportunities of personal observation, appears from that circumstance well entitled to consideration as important corroborating testimony.
In further corroboration of the testimony of Colonel Marshall and Major Hyland as to the forces and position of the enemy in my front, and as to the character of the country between my corps and Jackson's right, I refer to the testimony of General Griffin, forming with his brigade a part of General Morell's division, which was the head of my column on the 29th. He states in his examination-in-chief (page 646)  that, early on the afternoon of that day, he attempted to go to the right, and moved probably about 600 yards across the railroad, when he met with obstructions which he could not get through. On page 650 , in his examination-in-chief, he gives his testimony to the effect that any attempt on my part to attack the enemy, who were massing in front of us, on their right or rear as they were then moving, was impossible. In his cross-examimation by the judge-advocate, on pages 658 and 659 , he testifies directly to the large force of the enemy forming a line of battle obliquely to the front of my column, and coming toward us in force from Thoroughfare Gap all the day long.
In further and final corroboration of the testimony upon this point, I refer to the evidence of General Morell, as given in his examination-in-chief, on page 581 [969.] Referring to the state of things at sundown on the 29th, he testifies as follows:
The only attack we could have made at that time would have been directly in our front. The firing of which I spoke was far to our right, and a.t that time we could not have got there. The troops in front, of us were under cover in the woods. If we had moved forward, we would have gone over this open space. We would have been exposed to the fire of the enemy without any possibility of effectually returning it.
In reply to the question whether his force could have passed through the woods on his right in any good order to attack the enemy in that direction, he says :
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.
On page 599  of the record, in his cross-examination by the judge-advocate, General Morell states explicitly:
The enemy in our front, if we had moved to the right, would have threatened our own left very seriously.
In continuance of his cross-examination on page 602 , General Morell also testifies, referring to the official map:
The only enemy that I supposed were within my reach were directly in front of us, just about where this line is. I could not see them; I could only judge from the reports. When they opened with their artillery they were directly opposite my front, and then a short time after that some guns opened from the top of a hill off to their left, considerably beyond our right.
On this mass of affirmative evidence I rest the fact, now perfectly ascertained, and altogether controlling in this trial, that, during the whole afternoon and evening of the 29th of August last, a powerful and continually increasing separate force of the enemy was in battle array, in an almost impregnable position, directly in my front.
But I cannot take leave of this most important point without a moment's reference to the strange and only effort which has been resorted to through or by the officer who has signed the charges against me to rebut the testimony which I have presented. For this purpose, General Benjamin S. Roberts takes the stand, and informs the court that, not having any special command during the 29th of August, he traversed the greater part or the whole of the battle-field of General Pope, having been early in the day furnished with an eye-glass by General Pope, and directed with it to watch from afar the advance of the re-enforcing bodies of the enemy as they appear to have come up from the gaps in the general direction of the battle-field and its vicinity. He states that he did thus carefully watch the clouds of dust which they raised, and that in his undoubting judgment the masses of the enemy's troops were mostly moving on the Warrenton turnpike, between Gainesville and the battle-field. He appears, by his testimony, during his rides over the field, to have had one or two glimpses of some portion of my force, but he does not pretend that he saw anything of it after 1 o'clock. He thinks he was at one time within a mile and a half of my line, but, unfortunately for his observations, a wood intervened between him and me, and so he could see nothing of me or my force. The ground in my front, in which the enemy was posted, he does not pretend, as I understand, to have seen at all. In this state of facts, in reply to a question from the court, he testifies his confident conviction that there was during the whole afternoon no enemy's force in my front save only some cavalry with some light artillery. When such rebutting testimony as this, mere speculation and conjecture at the best, is deliberately presented upon such a point at the close of this more than forty days' trial by the inspector-general of the Army of Virginia, my accuser upon the record, I respectfully submit to the court that it is more than conclusive proof-- it is manifest confession-- that neither the commander of the Army of Virginia, who does not pretend to any personal knowledge on this point, nor the Government, can produce one particle of rebutting evidence as to the whole fact of the enemy's force in my front which is entitled to a moment's consideration even if it be fit to be heard.
To return, then, to the propositions in which I stated the general line of my defense against this specification, I now respectfully submit to the court that they are both satisfactorily made out to the full extent of the terms in which they are stated. That I could not at any time have literally obeyed the order of 4.30 p.m. of that day, by attacking the right of the enemy's forces which it directed and intended me to attack, namely, those under Jackson, is too clear to admit of dispute or doubt. What, then, remained for me to do in compliance with the general spirit and meaning of that order as a military movement of cooperation with the army of General Pope? Why, it was, beyond peradventure, my duty to do just what I did do, as directed by General McDowell when he left me; that is, hold on to the strong position in which my front was posted, with my center and rear within close supporting distance, and thus hold in check before me the mussing forces of the enemy, which, but for my presence there, would have closed up at once upon Jackson s right, crushed our forces in front of it, outflanked General Pope on his left, striking General McDowell on the Sudley Springs road, fall on the left of his column as it moved northward toward the battle-field, and this force surely doomed General Pope's whole army which was engaged that day to an inevitable and signal defeat, even though its efforts had been, if possible, more heroic and its courage more stubborn than they were. It was the presence and menacing aspect of my corps in its strong position before this separate enemy which alone prevented him from the overwhelming and decisive movement upon General Pope's hard-pressed left and upon General McDowell's column as he approached the battle-field. Thus I say, then, that I complied with the meaning and spirit of General Pope's order; and, when I received it, General Pope was in a position of peril which he did not suspect or imagine, but from which I could shield him so long as I could hold my position.
It was in this view that I sent Colonel Locke, my chief of staff, with a message to detain General King. I felt that I might, I knew not how soon, need his force. And in the event of my not needing it against the enemy in my front, I trusted to it, up to the hour when it was taken from me, to effect, if possible, by a circuitous route, my desired connection with General Reynolds on my right. Why, then, in this situation, did I, just before I received the order of 4.30 p.m., direct General Morell to prepare for an attack upon the enemy? I answer, because at that hour I had just received a message from General Hatch by my aide-de-camp, Lieutenant Weld, as he testifies without contradiction, which led me to suppose that General Pope's left, if not his center, were then forcing back the enemy with whom they were engaged.
In that state of facts, I ordered General Morell to make prompt dispositions enabling him to push on vigorously in pursuit, because it was to have been expected that in such a case of retreat of the enemy opposed to General Pope, the force in front of General Morell would either have left their position to join in that retreat, or else have moved from that position to protect the retreat. And in either event the true military policy of the moment was for my column to be all ready to push on to the assault. General Morell at once dispatched a messenger to inform me that my information of the retreat of the enemy was a mistake, and at the same time, in obedience to my order, he proceeded to make his dispositions for attack. Before his messenger reached me with these tidings, the order of 4.30 p.m., now in question, was placed in my hands. At once I dispatched Colonel Locke, my chief of staff', to the front, to order the commencement of the attack. When I learned the truth of the case, that the enemy was not retreating, I rode rapidly toward the front, examining for myself the situation, and, seeing that it was on all accounts, and especially by reason of the commencing nightfall, impossible that day to do anything effectual, I issued the order to remain as we were and continue to hold our position. When I reached the front, I saw the dispositions for that purpose being made. In proof of what I here state, I cite the following passage of the testimony of General Morell as it stands written on pages 578 and 579  of the record. He says:
A little while before sunset-- just about sunset-- -I received an order, in pencil, from General Porter, to make disposition to attack the enemy. That order spoke of the enemy as retiring. I knew that could not be the case from the reports I had received, and also from the sounds of the firing. I immediately sent back word to General Porter that the order must have been given under a misapprehension, but at the same time I made dispositions to make the attack in case it was to be made. Colonel Locke soon after came to me with an order from General Porter to make the attack. I told him, and I think in my message to General Porter I spoke of the lateness of the day, that we could not do it before dark. Before I got the men in position to make the attack, the order was countermanded, and I was directed to remain where I was during the night. General Porter himself came up in a very few minutes afterward, and remained with me for some time. It was then just in the gray of evening, between dusk and dark. I then put my men in position for spending the night.
I now add to this testimony the following explanatory statement of General Morell, as written on pages 628 and 629  of the record.
Maj. Gen. George W. Morell, after hearing his testimony read, made the following explanation:
"I am satisfied, upon reflection, that the order of the 29th to attack was not countermanded prior to the receipt of the order to pass the night where I was. I construed the order to pass the night as being virtually a countermand of the order to attack. I was making dispositions to pass the night when General Porter joined me."
And now, in a word more, I close all I have to say as to this third specification of the first charge, and the disobedience which it alleges of the order of 4.30 p.m. of the 29th, which it sets forth.
That order was written to me in contemplation upon its face of several essential conditions of fact, every one of which was reversed in my actual situation, either at the time when the order was written or when I received it.
It contemplated my presence on the enemy's right flank, but both when it was written and when it was received I was actually in presence of the enemy in great force, and almost impregnably posted in my direct front. It contemplated the possibility of direct access by my corps to Jackson's right flank; both when it was written and when it was received by me, such access to Jackson's flank was impossible by the character of the intervening country, and, if attempted by me, would have brought with it the swift and sure destruction of my corps by the enemy in my front. It contemplated an attack by me on Jackson's right, while, at the same time, I should keep up connection with General Rev-holds on my right. Both when it was written and when it was received to have kept up connection with General Reynolds would have led me in one direction, and to have attacked Jackson's right would have led me in a widely divergent, or rather in a nearly opposite, direction; and each of these movements by me, both at the time when the order was written and when it was received by me, was so utterly impracticable, and so surely disastrous, that no commander in his senses, being where I then was, and knowing what I knew, could possibly have ordered, or sanctioned, or attempted to execute either one of them, to say nothing of the extreme absurdity of attempting to execute both of them at the same time. The order, when it was written, contemplated an attack by me in the daylight. When it reached me, the sun was setting, or had set, and before it could reach my front the dusk was on and darkness at hand. When it was written, it contemplated an attack by me in cooperation with the main battle; when it reached me, that battle was receding from me; and before the order could reach my front and be obeyed, that battle, in its force and volume, was about to cease.
Such, may it please the court, as proved by the testimony which I have cited, is my case as to the order in question, and my defense against the third specification of the first charge. I leave it here, with all confidence in the candid consideration of the court.
And now I state to the court that I do not deem it necessary to make other or further answer than that which, under this specification, I have already made to the second charge, or to either of the first three specifications under it.
The fourth and last specification under the second charge was withdrawn by the judge-advocate immediately upon its presentation to the court, and before the trial began. This specification, relating to my conduct on the 30th, appears to have been communicated to me by the Government under a total misapprehension of the facts, and only in consequence of its thus having been communicated inadvertently to me does it appear upon the record at all. It having been immediately and formally withdrawn, I, of course, could not plead to it, nor offer proof in relation to it. This fact I regret. In view of the character of the evidence introduced as to the feelings and intent toward General Pope, which have been so strangely and unaccountably imputed to me, my whole conduct in the battle of Saturday, the 30th of August, is, as I contend, legitimate matter for the consideration of this court. But in this view I have been overruled by the court, and all evidence offered by me to show my conduct in that battle has been excluded. I desired to produce that evidence, but under the ruling of the court I must content myself with the assumption, manifestly made by the Government in its withdrawal of the specification, that in that battle I did my whole duty. More than my whole duty, according to my sense of it, it would have been then impossible for me to do-- for any man to do.
To return, then, briefly, to the second charge, and the three specifications under it, which have not been withdrawn:
The second charge, in its terms, is "violation of the Fifty-second Article of War," but its meaning, as I understand it, is misbehavior before the enemy; because I do not perceive in any of the specifications of the charge anything imputed to me which can, by any possibility, be regarded as constituting any of the other offenses enumerated and made punishable by that article. I observe, indeed, that the second of the three specifications referred to charges that I did shamefully fall back and retreat from the advance of the enemy without any attempt to give them battle, and without knowing the forces from which I shamefully retreated. I observe also that the third of the three specifications referred to charges that I did shamefully retreat away and fall back, with my army, to the Manassas Junction, and both these specifications aver that these said shameful things were all done by me on the 29th of August last.
In view of the proof which I have cited in this defense, even to say nothing of the other eight hundred or more pages of proof which appear upon the record, and which I have not cited, may I not, without more words, respectfully ask this court to adjudge that both of these averments are simply ridiculous? Where is there one particle of proof, in the whole record, that I fell back or retreated, with my whole army, to Manassas Junction, either shamefully or not shamefully? Where, on the whole record, is there any proof or pretense that I did, on the 29th of August, with my army, retreat or fall back at all? Why, at half-past 3 of the morning of the 30th, I received an order, which General Pope had written at fifty minutes past 8 on the evening of the 29th, imperatively commanding me to report to him in person on the battle-field; and then, and not till then, did I leave the far advanced and strong 'position which I then held in front of a great force of the enemy, and hurry back to join him on the field. What, I ask, is the sense and meaning of the averment that I did not know the forces before me, and from which it is charged that I shamefully retreated, when all the proof is that I, who, with my corps, held them in check, and the brave and skillful officers and men whom I had set to watch them and make reconnaissance of them, and hold them where they were, were, in fact, ourselves the only men belonging to the Army of Virginia who did, on that day, have any knowledge of those forces or of their position, or of the great power with which it was held, and with which, but for the presence of my corps, it menaced there all the fortunes of that hard-fought day of the 29th?
Is it my accuser on the record, who, in view of the testimony he has given on this point, and in view of that which I have presented, is here now to tell you that I did not know the forces of the enemy with which on that day I had to deal? But I will not tax the patience of the court with further argument or protest against these details of accusation. I smite them, one and all-- the charge and its three specifications-- with the solid mass of evidence, which, as I conceive, has already beaten down the charge of disobedience to the order directing me to attack the enemy on his flank. That testimony shows my behavior before the enemy.
Standing upon that testimony, I defy all accusation, and I challenge all proof, that it was misbehavior. I affirm that it was faithful, zealous effort, made according to my best judgment, then and there, to aid to the utmost, my country, her army, and her cause; and I further affirm that all the proof, and all reasonable judgment of it, show that by those efforts, mainly, was prevented a great and fearful addition to whatsoever of disaster or failure did then occur.
I proceed, now, to notice the only two specifications against me which yet remain to be answered, being the fourth and fifth specifications of the first charge, which respectively allege that I disobeyed the order of 8.50 p.m. of the 29th of August, directing me, immediately upon the receipt of the order, to march my command to the field of the battle of the 29th, and to report there in person to General Pope. The former of these two specifications alleges that, in disobedience to this order, I permitted one of the brigades of my command to march to Centreville, out of the way of the field of battle, and there remain during the entire day of Saturday, the 30th of August last. The brigade here referred to is that of General Griffin.
The latter of the two specifications alleges a similar disobedience to the same order, in that I permitted one other brigade attached to my command-- being the brigade commanded by General A. S. Piatt-- to march to Centreville, and that I thereby greatly delayed the arrival of the said brigade on the field of battle, on Saturday, the 30th of August last. I shall briefly consider together these two specifications.
And, first, I remark that I do not understand it to be denied that, upon the receipt of the order above referred to, at or about 3.50 a.m. on the 30th of August, I did at once proceed to take with me a portion of my command to the battle-field. General Pope, himself, states explicitly in his testimony that he makes no complaint as to the time at which, with that portion of my command, I arrived (four hours before fighting) upon the field, as directed. It only remains, then, for me to show that I adopted the proper measures to bring about, in so far as possible, the same result as to the rest of my command.
It being undisputed that General Sykes, with his division, was immediately in rear of the division of General Morell, and that the division of General Sykes did, under my orders and lead, proceed in due time to the battle-field, I now cite the testimony of General Morell as to my action in the premises, immediately upon the receipt of the order in question, at 3.30 a.m. of the 30th, in respect to the remainder of my corps. The testimony of General Morell which I cite appears on page 584  of the record, and is as follows:
Question. At what hour on the morning of the 30th of August did you withdraw from your position, and under what order! Please also state what took place at the time you withdrew.
Answer. A short time before daylight, on the morning of the 30th, I received a written order from General Porter-- which I have with me-- directing me to lose not a moment in withdrawing, and to come down the road toward him.
Question. Will you read the order, and state the time of its receipt?
Answer. There is indorsed upon the order, in my handwriting, "Received a few minutes before daylight, August 30, 1862."
The order is as follows:
Lose not a moment in withdrawing and coming down the road to me. The wagons which went up, send down at once, and have the road cleared; and send me word when you have all in motion.
F. J. PORTER,
Your command must follow Sykes'.-- F. J. P.
This testimony of General Morell is wholly uncontradicted; and I submit that it is of itself a conclusive answer to the whole specification in which General Griffin's brigade is referred to. It is due, however, to that able and energetic officer that I should cite another passage of General Morell's
Question. Do you recollect who delivered that order to you?
Answer. Captain Monteith, of General Porter's staff.
Question. State what took place in consequence of that order.
Answer. I immediately issued the order to the commandants of brigades and of the artillery to get ready to return, and to get them in motion as soon as possible. I think General Butterfield's brigade moved first, and then Colonel Barnes' brigade; General Griffin's was to bring up the rear.
Testimony, which shows the honorable and responsible position assigned to him in this movement, and discloses the causes by which his brigade was so delayed as afterward accidentally to lose its way .
Question. Was the purpose of keeping Griffin's brigade back the anticipation of an attack on your rear while withdrawing?
Answer. Yes, sir; I supposed that we would be attacked. In the afternoon of the day previous, Colonel Marshall, who was in command in front, sent in a report that the enemy were passing down toward the railroad in the woods on our right. And I supposed that when the enemy discovered us at daylight in the morning they would be likely to attack us.
Question. Did General Butterfield's and Colonel Barnes' brigades get to their destination, or, rather, did they take a different road from the one you took?
Answer. Yes, sir; so I afterward understood.
Question. How soon after discovering that you had taken the wrong direction' did you proceed to join the command on the battle-field?
Answer. As soon as I discovered it; I went on myself almost immediately.
In reference to the delay of General Griffin's brigade, General Morell (as appears on page 589  of the record) testifies as follows:
I heard firing of artillery, the first I had heard during the day; I ordered my horse and rode to General Griffin, and told him that I heard firing, and that we must move immediately. He spoke of his men being out of rations, which he said were being issued then, and that they were very much fatigued. I told him that I should go on without waiting for him, and that he must follow as soon as possible and do the best he could. I then went on with my staff, and when I reached the battle-field I met two brigades of my own division just coming out of action. <ar17_1100>
The movements of General Griffin, in pursuance of this order from General Morell at Centreville, are described by himself, at page 670  of the record, as follows:
Question. At what time on the 30th, if at all, did you move from Centreville toward the battle-field?
Answer. I should think about 5 o'clock in the afternoon.
Question. What prevented your getting to the field!
Answer. The road was blocked up by wagons and stragglers coming toward Cen-treville, and the bridge at Cub Run was broken through so that it was impossible to get past it at all.
Question. Did you go to the bridge, or how far did you go?
Answer. I got to the bridge with the head of my brigade.
I here close my answer to the specification charging me with disobedience of orders in permitting General Griffin's brigade, on the morning of the 30th, to proceed to Centreville. I never did permit any such movement. The movement occurred through an accidental mistake, and in unintentional disobedience to my positive and very peremptory instructions, which directed General Morell's division, including General Griffin's brigade, to follow General Sykes, who, with his division, led by myself in person, proceeded directly to the battle-field, under my order to that effect.
A single word, now, as to the movement of General Platt's, or, more properly, of General Sturgis' brigade, on the morning of the 30th, and I close what I have to say in answer to the two specifications now under consideration.
On page 654  of the record, General Griffin's testimony, tinder examination by the court, and entirely uncontradicted, is set down as follows, in reference to his movements at daybreak on the morning of the 30th:
Question. What did you know of the direction you were to take?
Answer. I understood from the staff officer who brought me the order that the division was to follow General Sykes.
On page 655  of the record, General Griffin testifies as to General Sturgis as follows:
Question. Did you see any other forces belonging to General Porter's corps on the way?
Answer. Near Manassas Junction we passed General Sturgis, with Piatt's brigade. He said that he had been directed to follow Sykes, and wanted to know which way he had gone.
Upon these undisputed facts, I do not feel at liberty further to argue before this court the question whether I disobeyed the order which directed me to proceed, on the morning of the 30th, with my corps, to the battlefield of the previous day. I did so proceed, and I gave all the proper orders, directing my whole corps to accompany or to follow me. 1 affirm that it was wholly prudent and proper for General Morell's division, in moving away under these orders from the immediate front of the enemy in force, to use careful precautions to prevent or repel the assault of that enemy upon our rear.
General Griffin's brigade was detailed for that special duty, and I say he is to be commended for his attention to the execution of that important duty, although it resulted in his accidental failure, by reason of missing his road without my knowledge, to make his way direct to the battle-field in pursuance of my order. But whether or not the court concur with me in this opinion, the fact still remains that I, as the general commanding the corps, did fully and cordially obey with the utmost promptness and celerity the whole of the order of General Pope directing me to proceed with my corps to the battlefield. Why, indeed, should I not have thus wholly obeyed it, if I obeyed it at all? Can any human being suggest a phrase purporting to be a reason, or to state a motive why I should myself, in pursuance of the order, on that morning have taken the mass of my corps into that grim fight, and then have permitted two brigades, in violation of the order, to go in another direction? Do I use too strong language when I respectfully state to the court that such an accusation against any sane general officer is little less than an absurdity?
And now, having disposed of the several charges and specifications presented against me, I proceed, briefly, to comment upon the origin and circumstances of this accusation, and the testimony of some of the witnesses who have appeared to support it. In doing this I shall, I trust, practice all due reserve. I shall abstain from saying at this time much that I have to say, which is yet very fit to be said, and which may be said hereafter.
By reference to the record, pages 28 to 32, inclusive, it appears that -this general court-martial was convened by a general order, which dissolved a military commission (an illegal tribunal) previously convened, as the order convening it under date of -------- recites, to investigate and report upon certain charges preferred against me by Major-General Pope.
By reference to page 82  of the record, it appears that General Pope, under date of 5th ultimo, testified before the court that up to that day he had preferred no charges whatever against me. Evidently, therefore, at the very outset of these proceedings, and even before these proceedings commenced, some one in connection with them had perpetrated a mistake so extraordinary and unusual that it should rather be called a blunder. I ask the court here to consider whether this mistake or blunder does not cast a strong and strange suspicion over the origin and inception of this whole accusation. In the testimony of General Pope and of Colonel Ruggles, it appears that, at Fairfax Court-House, on the morning of the 2d of September, in the course of a conversation which is proved by Colonel Ruggles, General Pope's chief of staff, to have related to the series of occurrences embraced in the charges and specifications now before this court, that he, General Pope, did declare, in substance, to me that he was satisfied or entirely satisfied with my explanations, except as to the single point of Griffin's brigade; that he intended to take no further proceedings against me, though he might against General Griffin. By the testimony of the same two witnesses, it appears that on that day, and immediately after that conversation, General Pope received an order which brought him at once back to Washington; and, by the testimony of Colonel Ruggles, at page-- of the record, it appears that General Pope, on the 5th or 6th of the same September, two or three days after his conversation with me at Fairfax Court-House, held a conversation with Colonel Ruggles, of which, in his testimony, at page 618  of the record, Colonel Ruggles, being cross-examined by the judge-advocate as to the circumstances by which he was led to remind General Pope of his declaration to me at Fairfax Court-House on the 2d of September, as above referred to, makes the following statement:
General Pope told me that he did not wish to appear as a witness against General Porter, but that he should summon me as the principal witness. I told him that I was not acquainted with all the circumstances of the case; that, though chief of staff. I had been employed as an aide-de-camp much of the time from the 25th of August up to the time of the battle of Chantilly, on the let of September, and that orders had been issued by him that I knew nothing of. He then said to me, "You know that such orders were given?" I answered, "Yes, sir." He said. "And you know that they were not carried out?" I answered that that was what I had been told; that that was my impression. He then said that that was sufficient; that he would have me summoned as the principal witness. Then, according to my recollection, 1 reminded him of that conversation. I felt that I was not sufficiently conversant witch the case, and I immediately reported this conversation to the Adjutant-General of the Army, and to Colonel Kelton, the Assistant Adjutant-General, at the Headquarters of the Army, and requested that General Pope might be summoned as a witness in the case. They told me that he should be summoned, and both of them also told me to see Colonel Holt about it; but, before doing so, I understood that the order for the trial had been suspended, and the impression was that there would be no trial. I therefore took no further action in the matter.
Before offering any comments upon this testimony, I am very glad, in so far as relates to the distinguished judge-advocate of this court, to insert into this defense, in justice to him, the following brief but entirely satisfactory evidence as to his action in the matter. I quote from Colonel Ruggles' testimony, as written in pages 623 and 624  of the record, and given under examination by the accused:
Question. Were you summoned by the Government to testify in this case?
Answer. I was summoned by the Government. Question. Who discharged you, and why?
Answer. On the 16th of December I reported to the judge-advocate of this court that I had been detailed as judge-advocate of a court-martial, to be convened at West Point on the 18th of December, and asked him if I should be needed in ibis case of General Porter. After some consultation, he told me that he did not think he would need me, and said he thought I had been summoned as a witness for the defense. I told him no; that I was a witness for the prosecution. He then told me I might go to West Point, and, if my presence was required here, I would be telegraphed for. I went on, and on the evening of the 28th of December I received a telegram to come on here.
Question. From whom?
Answer. It was signed by the Adjutant-General.
The record proceeds to state the admission of the accused that that telegram had been sent at his request.
I now respectfully ask the court to consider, in connection with the origin of this accusation, and the testimony of General Pope in support of it, the now cited extracts from Colonel Ruggles' testimony; and, first, I observe that it is not of the slightest importance whether or not Colonel Ruggles is correct in his recollection that on the 5th or 6th of September, on the road between Arlington and Washington, [he] did remind General Pope of the exculpatory declaration which he, General Pope, addressed to me at Fairfax Court-House three or four days before, that is, on the 2d of September. Colonel Ruggles states that, to the best of his recollection, he did, on the 5th or 6th, so remind General Pope, and that General Pope, when reminded, made no reply. But to this point of the reminder, as it may be, Colonel Ruggles' reiterated testimony is positive and peremptory to the point that he distinctly heard General Pope make the exculpatory declaration to me at Fairfax CourtHouse on the 2d of September, at the close of our conversation,. and in a voice loud enough to be heard all over the room.
The exact remembrance by Colonel Ruggles of the one exception made by General Pope to the general terms [of] that exculpation, when he uttered it to me, is perfect proof that Colonel Ruggles heard the exculpation itself with attention, and that it then and there graved itself in his memory. His careful doubt as to whether General Pope did certainly use the word "entirely" before the word "satisfactory," in addressing that exculpation to me, is proof of the conscientious circumspection with which Colonel Ruggles gives his most important testimony. His belief that the word "entirely" was used by General Pope, goes, therefore, far <ar17_1103> to prove that it was used. His immediate reference of the one exception to the case of Griffin's' brigade, though it was not named by General Pope as being the exception, proves, first, that the conversation had embraced the military operations of the days just passed, as well as the participation of my corps in these operations, and, secondly, it proves conclusively that Colonel Ruggles had overheard enough of the conversation to know at that time the topics upon which it had turned.
In fact, General Pope himself, far from contradicting, in any essential particular, Colonel Ruggles in his testimony as to General Pope's declaration to me at Fairfax Court-House, does himself, in the main, confirm that testimony. He intimates, indeed, that the exculpation was partial and limited; but he admits that it embraced the principal fact that he intended to take no further proceedings against me, and he expressly places that intention upon the additional and still more important fact that he did not then believe me guilty of intentional or purposed crime or delinquency. Remember this was six days after my first, and four days after my last, alleged offense had been committed. If offense had been committed by me, and that during that six days General Pope and myself had been in constant communication, if I was guilty it was then high time for him to know it. If my alleged guilt had brought or menaced great disaster or danger to his army and upon this capital, as the charges and specifications aver, then it was official delinquency, if not imbecility, in General Pope not by that time, the 2d September, to have found it out.. Remember we had had our explanations before he made his declarations to me. Remember that he himself states that at the explanation he knew and mentioned what he considered to be very unkind and unfriendly written comments upon his military plans and proceedings before, as he states, I had a chance to know them. And yet, with all these lights upon my conduct; with all my military acts, as now embraced within these charges and specifications, full and fresh before him; with all their consequences, then fully developed, he deliberately decides and declares that he shall take no further proceedings against; me, being (save upon one comparatively immaterial point.) satisfied with my explanations, and convinced that I am not guilty of intentional crime. Three, or, at the most, four days elapse, and all this is changed. On the 5th or 6th of September, as Colonel Ruggles has testified here, and as he then immediately reported to the Adjutant-General and the Headquarters of the Army, we find General Pope urging Colonel Ruggles to be the chief witness upon my trial, which, it would appear, had then been decided upon. Why this urgency on the part of General Pope to his chief of staff? Did he wish me to be tried? Did he wish me to be convicted, that he was organizing and arranging the whole hierarchy of evidence against me; assigning to his own chief of staff the principal part of the drama., and then, as appears from Colonel Ruggles' statement, assuring, or attempting to assure, that officer that his impressions or information that I had not obeyed the orders given me was sufficient; and that he, notwithstanding his expressed reluctance, should be summoned to the stand as principal witness against me? What had happened in this short interval to effect so wonderful a change in the mind and purpose of General Pope? He tells us plainly he had come to Washington, and here he had been made to see my military conduct in a new light. His eyes were open here-- that, I believe, is his very phrase-- to many things that he had not rightly judged before; and now, on the 5th or 6th of September, if we may judge him by his conversation with Colonel Ruggles, he is hot in my pursuit. His eyes are opened! What a confession is here! The commanding general of the Army of Virginia comes to Washington to have his eyes opened; to see aright in the light of alleged criminality my military acts, done under his orders, in the dark night of the 27th of August, at Warrenton Junction, or on the critical and anxious day of the 29th of August, on the road to Gainesville, or on the perilous ridge of battle, where it raged at the field of Bull Run, on the eventful day of the 30th. I ask this court to consider whether all this be not without example. What has happened to General Pope? He has indicated in his testimony that when in Washington his eyes rested upon certain telegrams, by which they were opened to discern my guilt. Where are these mystical proofs of crime? Let them be produced! Are they the communications which passed, by the telegraph, between me and General Burnside, and which I, with great painstaking, have crowded into the case as part of my defense, against the manifest reluctance and even in reversal of the rulings of this honorable court, which at first deemed their exclusion its duty, because of their supposed irrelevancy? Are they the three or four telegraphic communications from me to General Burnside, which were introduced in evidence by the prosecution, with my cordial assent, and which I would have introduced without hesitation, if the prosecution had not presented them? If these papers prove my guilt, or tend to prove it, or raise a reasonable suspicion of intention on my part to fail my commanding general, sacrifice the army of my country, and betray its cause, then let words and letters, in which such damning guilt is manifested, be set forth, so that all men may read my criminality with its doom.
I have done my part to accomplish all this, if it be of possible accomplishment. I have furnished to the newspapers the entire mass of these papers, and, so far as I could do it, have scattered them over the land as proofs that I was thoughtful, watchful, provident, laborious, incessantly and zealous in duty, willing to assume responsibility, and assuming it at Williamsburg and elsewhere to reach quicker than the quickest the Army of Virginia, when I knew that the rebels had moved in mass to destroy it. But I will not go on upon this point. I respectfully state to the court that I did not do all this under the eyes of McClellan, and Burnside, and Tucker, and Morell, and Sykes, and Reynolds, and Butterfield, and Griffin, and the rest who testify that they saw me do it, in ceaseless labor and carefulness, by night and by day, in spite of sickness and in spite of weariness, with the purpose to fail that army or its commander in their hour of peril, and shamefully to betray them and almost inevitably the loved and noble corps which was then my own into the jaws of danger and death. It was not to this dire end, it was not [to] this fell purpose, that I watched and took counsel in the night of the 27th at Warrenton, and then strove to do my best duty there in hurrying forward as fast as I could, in obedience to orders, before the morning dawned; or that I pushed on toward Gainesville on the morning of the 29th, as ordered; or that I held my all-important position through the anxious afternoon of that day, to divide and distract the enemy and hold his massing forces in check; or that, on the morning of the 30th, I plunged into the thick of the fight while that same enemy which I had confronted and held from advancing the day before moved swiftly on, just as when, under the imperative, order of 8.50 p.m. of the 29th, I left my strong position, and thus opened his road I feared he would move to make his furious onset upon our left flank. Personally I was glad to be with my corps where the fight raged on the 30th. But I state my deliberate judgment as a military man that, but for that peremptory order, I had no right to be there. It was a false military movement. My post of real military power was the rising ground which Morell's division, backed by the rest of the corps, was holding. Had we been permitted to hold on there, the terrible attack upon our left flank on the 30th would never have been made. I could and would have stopped it then, as I did stop it the day before. If the major-general late commanding the Army of Virginia, whose inspector-general is, at least, my nominal prosecutor here, doubts the truth of what I now say, let him produce, if he can, as I asked him to produce at the trial, the note which I sent him by Capt. Douglass Pope at dusk, in reply to his order of 4.30 p.m. of the 27th, directing me to attack Jackson's right, and he will then learnt or at least recollect, what I at that moment judged concerning both the position of the enemy and my own. Let him publish that note, since it has not been produced, if he can even at this late day find it, and then all who choose to compare that note with what I have just stated will know that the military theory of the position which I now express with all confidence has ever since that day remained in my mind unchanged.
And this brings me back again reluctantly to consider further the testimony and the action of General Pope in this matter. Believing, as it appears that he did, on the 5th or 6th of September last, that I had, by criminal conduct and intent, put his army and this capital into great peril, why did he not then exhibit charges against me? Was it fit, if, after his eyes had been opened at Washington, he did at last see me as a man stained with the guilt which his subordinate, three months after, has undertaken in these charges to impute to me-- was it fit for him, as a patriot or a soldier, or as my commanding officer, to stand by in silence and see me, for months afterward, invested with high and most responsible command? Does not the fact that he did thus so long stand silent, cover this whole accusation, to the judgment of all candid men, with the odious suspicion of being, at the best, a mere afterthought, if not something far more wicked and malignant? On page 52  of the record of the session of this court, on the 5th of December last, appears, in the testimony of General Pope on that day, the following statement:
It was not until the campaign was closed, and I came to Washington City, on the 4th or 5th of September, that I was informed by the President of the United States that he had seen several dispatches or letters from General Porter to General Burnside, dated a day or two previous to these battles, which had occasioned him very grave apprehensions that General Porter would fail to do his duty. This communication of the President to me opened my eyes to many matters which I had before been loth to believe, and which I cannot bring myself now to believe.
I invoke attention to the carefully measured, yet most sinister, language of this whole declaration, made by a man filling a high place in the service of his country, under the solemnity of an oath. But, most of all, and first of all, do I stand up here to repel and repudiate with just indignation the inference which may afflict many a well-meaning but uninformed mind, upon the reading of this testimony, and which, peradventure, may have touched in this my trial even the enlightened and calm judgment of this court, to the effect that, on the 4th of day of September last, the President of the United States could, by any possibility, have harbored in his mind, even for one moment, the apprehension or the suspicion, based upon telegrams of mine, or anything else in my conduct, that I was, or was capable of being, the guilty man whom these charges, which I have now crushed down under a mighty mass of refutation, indicate and describe. With still more indignation and scorn do I repel, by the oath of whomsoever supported, the scandalous thought that the President of the United States could have been in any way, directly or indirectly, consciously or unconsciously, instrumental on that day in instilling into the mind of General Pope, or into any other mind, the venom with which these charges reek. In refutation of any such foul calumny, I point triumphantly to the fact that on the 5th of September I was, under the direction and by the authority of the President of the United States, invested with the command of 18,000 men, to guard a portion of the defenses of Washington. In the same view, and for the same purpose, I point triumphantly to the further fact that, after acting in that high and honorable post to the 12th September, I proceeded, under the same authority and direction, to share in the labor and peril and to rejoice in the glory of that noble army which drove the massed rebel force out of Maryland, in the hard fights of South Mountain and Antietam, and that in that army I held the command of my former corps, augmented by a new division. Did all this indicate that I was looked upon on the 4th of September, as this testimony would seem to indicate, by that highest authority, as a man guilty, or capable of being guilty, of the offenses now charged upon me? In the same view, I point to the telegram which I received from General McClellan, and which is upon the record of this court, in evidence, with an explanation by General McClellan, indicating an apprehension in the mind of the President, on the 3d of September last, that there might be some unkind feeling between the two armies then in Virginia. That telegram, when I received it, I did not fully understand as a message addressed to me; but now I know, by General McClellan's testimony, that I was selected and trusted by the President as the proper officer of the Army of the Potomac through whom General McClellan's great personal influence with that army might operate effectually to remove any such unkindness, if any should unhappily be found to exist. In view of these facts, I exhort General Pope to find some other and better explanation for his so suddenly distempered mind than he has in his testimony above cited given, or than his subordinate officer, my accuser on this record, has been able in this trial to prove.
I come now to say a few words of the testimony of General McDowell. I shall speak of him as a witness with entire calmness and candor, because, though I speak with regret, I shall speak with no disrespect. His testimony, taken as a whole, has astonished me beyond measure. I feel that it has done me more harm and more wrong-- I charitably hope unintentional wrong-- than has been done to me by all the rest of the testimony of the prosecution put together. In saying this, I, of course, lay wholly out of view what I cannot but consider as the ravings of Lieutenant-Colonel Smith-- I believe he is lieutenant-colonel-- about his fifteen minutes first and last interview with me on the morning of the 28th at Manassas, when he thinks that he saw in my face that I had a crime on my mind, and comes up here to encumber the record of this honorable court with that and similar rubbish about my being a traitor, because, forsooth, I thought it would hurt General Pope if he left his wounded behind, and because I seemed indifferent about getting ammunition, which he knew at the very time that I had just made a requisition for (although he didn't know what this court know and what the record shows), that I had just sent out two of my officers to look after it, and because he thought it was a monstrous thing that I should have intimated the possibility of the army falling back toward Alexandria, and that it might, perchance, find the ammunition there, in case that the wagons laden with it should have gotten so far out of their way, and, finally, because I seemed to him to have a sneering though perfectly courteous and polite manner, as he expressly states, whenever I referred to anything connected with General Pope. All these things were quite too much for him, and though there was no harm in the words I spoke if they had been written down, yet, as I spoke them, they fixed him in conviction that I was a traitor; not exactly a traitor according to law-- that he did not mean-- but a traitor through personal hostility, and, I suppose, also through a "sneering manner" toward General Pope. I submit to the court that, in so far as I understand this person's testimony, this is a true and fair picture of its sense and substance on this point, that is to say, if the court can find any substance or sense in it. I can spend but very few words more upon Lieutenant-Colonel Smith's testimony, but as he seems so very much grieved about my thinking about the possibility of our having to fall back to Alexandria, I cannot but refer to the last answer given by General Heintzelman when called by the Government to testify upon this trial, and, speaking of the state of things on the 27th, 28th, and 29th of August, he testifies as follows:
I knew that the enemy had possession of the railroad, and that, of course, we were obliged to fall back.
I may be permitted to hope that this straightforward declaration of the heroic and experienced Heintzelman will alleviate the sensibility and dispel the horrible suspicions aroused by a passing remark from me somewhat in the same sense, which, by the way, if I ever made it, has quite passed out of my memory. I will further suggest that men who mean to be traitors, or quasi-traitors, and, at all events, to fail a general whom they have strained every nerve to reach by forced marches, in order to co-operate with him against an enemy who is rushing upon him, they do not usually adopt the course of revealing the intended treason which is in their hearts by a sneering manner to a chance visitor in a first brief interview, especially when he happens to be a member of the staff of that very general whom the aforesaid traitors or quasi-traitors intend to fail or betray.
I will also more seriously suggest that a soldier's face may sometimes seem to be clouded by other feelings and forebodings than those of a traitor with his crime upon his mind, especially when, as in my case on the 28th of August, that soldier happens to command an army corps, and sees before him, as I then did, a whole military situation not at all satisfactory in its aspect to his military judgment. But enough, perhaps too much, of Lieutenant-Colonel Smith's wild fantasies and strange, wild words of testimony in which they are expressed. Hoping that this passing and parenthetical exposure of them in their naked futility may not be deemed wholly superfluous, I return to the wholly different and broadly contrasted testimony of General McDowell. Upon this testimony I remark with regret that General McDowell appears to have forgotten almost all that I remember of what took place between us on the 29th of August last, either face to face or by message, and that he seems clearly to remember some very important matters of which, after my best efforts, I can find no trace whatever, either in my memory or my action, or his action, or the communications direct or by message which on that day passed between us. I assume that this court, having regard to the clear, positive, and direct concurrent testimony of two eye and ear witnesses, Colonel Locke, my chief of staff, and Captain Martin, chief of artillery in General Morell's division, both of highly respectable character and position, and both upon the point to which they testify wholly uncontradicted, does not doubt that General McDowell did, not far from midday on the 29th of August, ride up to me, and, after saluting me, say, in reference to the position which I then occupied, "Porter, this is no place to fight a battle; you are too far out already." Of course, the court does not doubt that we then rode away a, short distance together to the right of the advance of my corps, and that we soon after parted, General McDowell to proceed toward the Sudley Springs road, and I to return to the position at which he first spoke to me after our meeting. I assume, also, that the court will believe that Colonel Locke, about half an hour afterward, heard from General McDowell's lips what he understood to be at the time he heard it a message to me from General McDowell, directing me to remain where I was, and informing me that General McDowell would take General King's command along with him away from the position which he then held. General McDowell does not directly contradict either of these statements, being evidently careful not to do so, but he testifies that he does not recollect his opening remark to me, as above quoted, nor the message which, as coming from him, Colonel Locke delivered to me. On the other hand, General McDowell testifies that he, just as he parted from me, said to me, "You put your force in here, and I will take mine up the Sudley Springs road, on the left of the troops engaged at that point with the enemy," or "words to that effect." He adds, "I left General Porter with the belief and understanding that he would put his force in at that point."
It is not disputed anywhere that, if he gave me the above-quoted direction, he meant by that I was to attack the enemy's forces then engaged with General Pope's left wing. Now, I state with all confidence to this court, that this testimony of General McDowell, first, that he did give me that direction so to attack, and that he left me understanding that I assented to it, and, secondly, that he does not recollect his opening remark to me about my being too far out, and in no place to fight a battle, nor his message to me delivered by Colonel Locke in less than half an hour afterward-- this testimony of General McDowell, affirmative and negative, constitutes, I affirm, the whole strength and entire substance of this prosecution. Day after day, before he took the stand, I had broken down effectually, by cross-examination, every particle of the testimony of the Government witnesses, one by one, as they came up, which even appeared to have any perceptible tendency to make out a case against me. Yet, most strange to say, this peremptory order to attack, which General McDowell says he gave me, and that I assented to, and which it is not pretended that I carried into effect, or tried to carry into effect at all-- this order to me, and my disobedience to it, is nowhere even hinted at in either of the two charges or eight specifications under them, which my accuser has so wantonly and wickedly spread out against me, and which I am now trampling down under my feet; and it is well that this alleged order to me by General McDowell does not so appear charged or specified, for now I will demonstrate that he did not then give me, and cannot be believed to have given me, any such order. First, such order, if then given by him, was in the most flagrant and total contradiction of the first remark which I have proved upon him conclusively, by the positive and reiterated oath of two witnesses, both of whom-- one my chief of staff, Colonel Locke, and the other General Morell's chief of division: 'artillery, Captain Martin-- swear that they heard him make the remark, and give in their testimony his very words, and stand in so swearing not only unimpeached but uncontradicted, while they perfectly corroborate each other. Secondly, this order to attack, which General McDowell says he gave me, is in flat contradiction with the message directing me to remain where I then was, which my same chief of staff swears most positively that he, a few minutes after the alleged giving of that order, did receive from General McDowell, and did forthwith deliver to me, as being a message of such great importance in his judgment at the moment as, for reasons which he fully renders in circumstantial detail, to fix itself indelibly in his mind, and to have remained in its very terms perfectly in his recollection from that day to this. Thirdly, General McDowell does not pretend to state or to remember any reply whatever made by me to him when, as he says, he gave me that order and understood me to assent to it; but this court well know, in view of all the proof upon this record, especially as given as to my position before the enemy, is the testimony of Marshall, Hyland, Stevenson, Morell, and Griffin-- all speaking in just the same sense to the point, that if I had then received from McDowell such order to attack, it is utterly incredible and impossible that I could have received it with immediate and silent assent, and have permitted him to leave me without discussing it, and stating my objections to it. Still more utterly incredible and impossible is it, that if I had thus received and assented to that order, and then failed to act in pursuance of any such direction, that I could possibly have abstained from sending to General McDowell, who was, for a long time afterward, as his own testimony shows, within a mile and a half of me, any notice or explanation whatsoever of my failure so to act. Such a course would have been sheer insanity, utter craziness in me or in any other army corps commander in my position. Such conduct on my part would have resounded along the lines of the whole army. It would have been proclaimed forthwith at the headquarters of General Pope. It would have been blazoned among these charges and specifications side by side with the order itself, and, if true, it ought to have made the words of exculpation which General Pope uttered to me at Fairfax Court-House on the 2d September, four days afterward, choke him as he spoke, But it is not true that General McDowell then, or at any time on that day, gave me any such order "to put my troops in there," or to do anything of the kind; and fortunate is it for General McDowell that it is not true, for if he had given me any such mandate, to thrust my corps in over that broken ground between Jackson's right and the separate enemy massing, in my front, the danger and disaster of such a movement would have been then and now upon his hands. I am glad that I can say that General McDowell is utterly in error upon this point, and is in no way chargeable with such fatal military blunder. It is not alone that I am as clear as I can be as to any fact in my life that I received at that time no such order from him, but it is demonstrated in what I have said, as well as in what else stands proved in this record, that no such order to me could have been then by him given.
Unable, as he testifies, by habit of mind, accurately to remember the divisions of time, he has plainly confused in his testimony, I will charitably hope, not without some efforts, though unsuccessful, at accurate recollection, the situations, the sayings, and the doings of different days. I have said that I would speak of his testimony with calmness and candor, and without disrespect. Under strong provocations I have kept my word, but I have demolished his testimony before you, and with it the whole prosecution falls, and the accusation is left to the condemnation and derision of all just men.
F. J. PORTER,
Source: Official Records of the War of the Rebellion
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