that at between 5 and 6 o'clock, the accused was found at or near Bethlehem church, surrounded by his troops, whose arms were stacked. It is further proved by Colonel B. F. Smith, who was in the front at the time of the artillery firing, and alleges that he and the troops of his command then fell back, under orders, to within a mile or two of Manassas, where they passed the night, having arrived there in the afternoon. It is yet further shown by General Griffin, examined by the accused, who says his brigade retreated from a mile and a half to two miles. This retrograde movement might have been excused had it been made in good faith for the purpose of reaching Bull Run that night; but no such purpose was entertained, nor has it been insisted that it was, either by the testimony or the argument. General McDowell says the accused might have attacked the enemy and would have still had ample time for falling back on Bull Run. Indeed, as appears from the map, such an attack would have been and advance in the direction of Bull Run. He might have found justification, too, for this step, had it been taken from a conviction that, in the sense of the order, "considerable advantages" were to be gained by departing from its terms. No such position, however, could be successfully taken in the defense. The only "advantages" which the retreat promised were the personal safety of the accused and staff, and the exemption of his troops from any participation in the sanguinary battle then being fought immediately to his right. Surely such advantages as these, purchased, as they were, at the imminent hazard of the sacrifice of the whole army, were not those contemplated by the order. The advance of the accused, either along the Gainesville road or to the right, would have brought him into conflict with the enemy. The court concluded, and justly, that his falling back, under the circumstances and for the purpose mentioned in his note to Generals McDowell and King, was a violation of the joint order to himself and General McDowell.
It would seem, also, to have been a manifest violation of the duty resting on him as a soldier, in the position in which he was placed, without reference to any specific order or direction leading or directing him to engage the enemy. In forward, aggressive movements, it is an established principle of military science that the column shall be so held in their advance as to be ready to afford mutual assistance in time of need. Another elementary principle of such movements is, that in the absence of positive, retreating orders, the march shall always be toward the sound of the guns, thus confirming the sentiment of the words of General McDowell, that it is the soldier's mission to fight. Both these fundamental rules of the military profession were disregarded in the retreat of the accused. He fell back precisely at the moment that the obligation to co-operate which was pressing upon him required him to advance, and his march was not toward, but from, the sound of the enemy's cannon.
The order of 4.30 p.m., August 29, directed the accused "to push forward into action at once on the enemy's right flank, and, if possible, on his rear." It was not obeyed, nor was any attempt made to obey it.
It was claimed in the defense that the accused should not be condemned for this disobedience; first, because the order was received too lat to be obeyed, and, secondly, because obedience to it was impracticable in consequence of the presence of the enemy in overwhelming force, and in consequence of the character of the country over which the movement would have had to be made.
There is a decided conflict in the testimony as to the hour at which the order was received. It bears date 4.30 p.m., and Captain Pope, the