the Napoleonic maxim quoted in the argument for the defense. The discretion it allows to a subordinate, separated from his superior officer, is understood to relate to the means, and not the and, of an order. When the accused determined that, instead of starting at 1 o'clock, he would start at 3 or 4, he did not resolve that he would arrive at Bristoe Station by daylight in a different manner from that indicated by his commanding general, but that he would not arrive there by daylight at all. In regard to this - the end of the order - he had no discretion.
The order set forth in the second specification to first charge was addressed to Generals McDowell and Porter, jointly, and a copy, or, rather, duplicate, of it was delivered to each of them, it may be inferred from all the evidence on the point, at about 10 o'clock in the morning of the 29th of August. Previously to this they had met with their forces,and, under the Sixty-second Article of War, General McDowell had assumed the command. The order directed them to move with their joint command toward Gainesville until they should effect a communication with the forces of Heintzelman, Sigel, and Reno, and then to halt, taking care to occupy such a position that they could reach Bull Run that night or by the morning of the following day. The order contained these further words:
If any considerable advantages are to be gained by departing from this order, it will not be strictly carried out.
At the time this order reached General McDowell and Porter, they were on the road between Manassas Junction and Bethlehem church, and were proceeding in the direction of Gainesville, as the order contemplated. The order being issued to them jointly,showed that it was the purpose of General Pope that they should act in independently of each other, and each in direct subordination to himself; and he testified that such was his intention. Under these circumstances, it may be well questioned whether, under the Sixty-second Article of War, General McDowell could continue the command which he had assumed over their joint forces. That article excludes the idea of the presence of an officer superior in rank to those commanding the different corps of which it speaks. In this case, General Pope was absent but a few miles - was, in fact, occupying the same field of military operations with Generals McDowell and Porter, and claimed to decide the question (which it certainly belonged to him to determine) that these generals were so far in his presence that he might command them directly, and not through each other.
Their forces continued their march - those of the accused being in the advance - until the front of his column had reached some 3 miles beyond Bethlehem church, and until a small part of General McDowell's command had passed that point. General McDowell then rode forward to the head of the column of the accused, where in interview and conference took place between them, to which reference is frequently made in the testimony. They discussed the joint order, and General McDowell determined, for himself, that there were-
considerable advantages to be gained by departing from it,
and by moving with his forces along the Sudley Springs road toward the field a battle then being fought by the main army of General Pope, at the distance of 3 or 4 miles. His purpose was to throw himself on the enemy's center, and he wished the accused to attack his right flank. He therefore said to him:
You put your force in here, and I will take min up the Sudley Springs road, on the left of the troops engaged at that point with the enemy.
71 R R-VOL XII, PT II, SUP