during what period did it continue, and at what hour did it substantially cease?
Answer. The skirmishing commenced along the Warrenton turnpike quite early in the morning; the exact hour I cannot say, but it was, I should think, not very long after daylight that I first began to hear the guns. It continued, with more or less intermission, until some time after dark on the 29th-perhaps 8 o'clock. The precise hour, of course, I cannot designate.
Question. About what time did the infantry-combat cease on that day?
Answer. The infantry combat was the last. The last firing, I think, was done by the infantry. there may, perhaps, have been artillery firing about the same time, but, if so, at long range.
Question. What did you understand the strength of Jackson in front of you to have been an 4.30 p. m. on that day?
Answer. Of course, in making a statement of that kind, I am only guided by the information, more or less uncertain and unreliable, which we had received at various times. I myself estimated his force to be about 25,000 men, or between that and 30,000; 25,000 was the lowest estimate I made of his force.
Question. Bearing in mind the terms and tenor of the order of 4.30 p. m. of the 29th of August, and its direction to the accused to attack the enemy's flank, and, if possible, his rear, and at the same time to keep up communication with General Reynolds on the right of the accused, please to inform the court whether, if it could have been foreseen at 4.30 p. m. that at the time when the accused should receive that order he would find himself in front of the enemy in large force, in such a position that he could not outflank the enemy without severing his connection with General Reynolds on his right, would you, if that state of facts had been foreseen at the date of the reception of the order, have expected or anticipated obedience from the accused to the order according to its terms?
To question was objected to by a member of the court as mere opinion.
The accused stated that the accused is charged with disobedience to the order in question. It is deemed by the accused most material for him to show that a state of facts existed at the time of his reception of the order such as to preclude a reasonable expectation on the part even of the officer who issued the order of its being executed by him at that time according to its terms. It is respectfully submitted by the accused that this is not opinion is supposed to have a substantial justice and equity in itself, as going to the justification of the accused in any failure to comply with the order which he may have exhibited.
But if there should be further and positive ruling or precedent of evidence desired by the court in order to warrant the admission of the question, the accused then respectfully submits that this witness has already been understood to testify that on the 2nd of September, the witness then, having in view all these operations, did not regard the accused as guilty of purposed and intentional criminality and delinquency. Now, it is obvious that a negative answer to the question now submitted will be most important fortification of that opinion.
It should be added by the accused that the judge-advocate, with the sanction of the court, has repeatedly asked this witness, as the author of the order, whether he did or did not consider that certain action of the accused amounted to a disobedience of this order. We humbly conceive that precisely the same rule of examination would admit this question.