War of the Rebellion: Serial 017 Page 1129 Chapter XXIV. CAMPAIGN IN NORTHERN VIRGINIA.

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least seven and a half or eight hours. His troops were fresh and well equipped; and that from his position he was bound to have taken part in the engagement, and that his failure to do so was to the last degree culpable, cannot be denied, unless it can be made to appear that he was restrained by some uncontrollable physical necessity or by some positive order of his commanding general. The attempt has been made to justify his conduct on both grounds. The examination already made of the testimony warrants the conviction that the material obstacles in his way, growing out of the proximity and strength of the enemy and the nature of the country, were not sufficient to excuse his inaction. His chief of staff, however, Lieutenant-Colonel Locke, called by the defense, deposed that in the afternoon of the 29th he bore a message from the accused to General King, whom he found near Bethlehem church with General McDowell; that General McDowell sent back by him to the accused a reply in the following words:

Give my compliments to General Porter, and say to him that I am going to the right, and will take General King with me. I think he (General Porter) had better remain where he is; but, if it is necessary for him to fall back, he can do so upon my left.

And the witness testifies that he regarded this as an order, and communicated it to the accused, and this, it is insisted, restrained him from attacking the enemy.

In the first place, it is to be remarked that this language does not import an order, but simply a suggestion and counsel from one companion in arms to another. Again, General McDowell was not then in a condition to command the accused, and this both he and the accused must have well known. They were separated from each other, and were not, in the terms of the Sixty-second Article of War, "joined or doing duty together." General McDowell was proceeding at the moment with his forces, upon an entirely distinct service from that in which the accused was engaged. But the whole of Lieutenant-Colonel Locke's statement in regard to this message was swept away by the evidence of Generals McDowell and King. The witness had stated that the message was given to him in the presence of General King, and was heard by him. General King, however, testified that he was not with General McDowell at all after the morning of the 29th, and that he heard no such message; while General McDowell declared that none such was sent by him. It is further urged in the defense that, although the evidence may thus fail to show that such a message was sent, yet that it was delivered to the accused and he was justified in obeying it. This position is assumed in disregard of the maxim "falsus in uno, falsus in omnibus." The same witness who deposed to the receipt of the message from General McDowell deposed to its delivery to the accused, and in neither point was he supported by the testimony of others. Having been discredited as laboring under a complete misapprehension in regard to the first, this discredit necessity attaches to the second, and, under the maxim quoted, his entire statement falls to the ground. But even if it had been established that this message had been sent and received, and that it was in form an order, and given by proper authority, still, it is not claimed that it reached the accused before about 3 o'clock. This would leave his inaction, from 12 to 3 o'clock, in the presence of the enemy, and in the midst of a battle, unexplained, and therefore unpolluted in its culpability by anything that is contained in the record.

Although that portion of the defense which would justify the inaction of the accused, because of the enemy and of the difficult nature of the