The chief obstructions upon the road, however, and those most elaborately presented by the evidence and argument of the accused, were wagon trains. Captain DeKay thinks that, had the march begun at 1 o'clock, the greater part of these wagons would probably have been in camp, and would thus have been avoided. A part of them are shown to have been on the road throughout the night, and between 2 and 3 o'clock Colonel Clary found them so jammed as to constitute a serious obstruction for some 3 miles. But even here the railway track was alongside of the road, and could easily have been used by the infantry. For the first 3 miles from Warrenton Junction, it was in proof that the road was wholly unobstructed.
Captain Fifield, a witness of the accused, deposed that with 100 men he could have prevented the jam of the wagons, and that with 150 he could have kept the road entirely clear. Why did not the accused detail this force, and at once remove the obstacles are now relied on to excuse him for this alleged disobedience of orders? The testimony leaves no doubt but that he could have done so, and that every wagon might thus have been taken out of the way of his troops by 1 o'clock. The subject does not appear to have been discussed, or even thought of. It is true that at 12 o'clock on the night of 27th, Lieutenant Brinton came from Cattlett's Station to Warrenton Junction, and on having an interview with the accused, he spoke to him of the wagons on the road; whereupon accused directed him on his return to have the road cleared. On his arrival at Cattlett's Station, he told the adjutant "to send out some men to get these wagons out of the way." He does not know that the direction he gave was complied with. This was at 1 o'clock, the hour at which the troops should have been in motion. All the circumstances surrounding this direction on the part of the accused leave the impression that he could not have anticipated from it the removal of the obstacles in his way. It was accidental, and was without vigor or precision,and given at an hour that showed the subject had not been with him one of any solicitude. It is observable, also, that even this feeble and inefficient provision looked to clearing the road, not for a march at 1 o'clock (for all thought of that had been abandoned),but at daylight, or, at earliest,a t 3 o'clock.
On the consultation which took pace between the accused and his generals, when the order was received, the opinion was expressed by the latter (and it has been repeated in their testimony) that nothing would be gained in the way of time by starting at 1 o'clock instead of a later hour - say 3 or 4. As starting at 3 would require a night march of one hour, and starting at 1 a night march of three hours, this opinion imports a declaration that the troops could march no farther in three than they could in one hour, the darkness for the whole period of time being the same. If the opinion referred to a starting at daylight, then it carries with it the assumption that during the three hours, from 1 to 4 o'clock, the troops would have been unable to make any progress whatever, and this, notwithstanding the first 3 miles of the road from their encampment is shown to have been entirely unobstructed. Surely these opinions have not been well considered.
There are certain other facts disclosed in the testimony which go far to indicate a settled purpose on the part of the accused to disregard this order of his commanding general. It was couched in terms as strong as a military man could employ in addressing a subordinate; and yet its urgent language was not commented upon, and does not seem to have attracted any attention, as appears from the conversation that ensued between the accused and his generals after its receipt. The accused, as