Question. Did he change his position on reading the order, or did he continue to lie down?
Answer. I cannot state positively whether he rose to his feet or not; but at the time he was reading the order, I noticed that he was lying in this position on the ground [describing him as resting on his elbow, his head upon his hand].
Question. Did you leave him lying down on the ground when you came away?
Answer. Yes, sir.
The accused had, for between five and six hours, been listening 8 the sounds of the battle raging immediately to his right. Its dust and smoke were before his eyes, and the reverberation of its artillery was in his ears. He must have known the exhaustion and carnage consequent upon this prolonged conflict, and he had reason to believe, as shown by his note to Generals McDowell and King, that our army was giving way before the heavy re-enforcements of the enemy. He had a command of some 13,000 fresh and well-appointed troops, who had marched but a few miles, and had not fought at all on that day. Under these circumstances, should not an order to charge the enemy have electrified him as a solider, and have brought him not only to his feet and to his saddle, but have awakened the sounds of eager preparation throughout his camp? But the bugle-note of this order seems to have fallen unheeded, and after reading it, and at the close of an interview of from 15 to 20 minutes, the messenger who bore it turned away leaving the accused still-
lying on the ground.
There is some contrariety in the evidence as to the force of the enemy by which the accused was opposed. The weight of the testimony is that it was small, decidedly so in the early part of the afternoon, when the attack directed by General McDowell should have been made. General Roberts thinks there was only a cavalry force, with some light artillery. Colonel B. F. Smith, who was at the head of the column at the time the rebel battery was silenced, and who fell back with his command half an hour afterward, noticed clouds of dust beyond the trees, but whether there were troops advancing or moving in another direction, he could not tell. He saw nothing to induce him to believe that they were retreating before the enemy, but supposed that they had been making a reconnaissance in force, and having completed it, were falling back for some other duty. General Griffin, a witness for the accused, who was also at the front, and enjoyed every opportunity of observation, having been asked as to the position of the enemy in relation to General Porter's corps between 5 and 7 o'clock of the 29th, replied:
It is a hard question to answer. I do not know much about the enemy: I only know that during the day large clouds of dust were going to our front and to our left from a point stated to us then to be Thoroughfare Gap. The batteries which opened upon us at 1 o'clock were within 1,200 or 1,500 yards of us. We saw no force at all; we saw scattering groups of horsemen, or of infantry. I do not believe we saw in any one group over 40 men.
Major Hyland, who belonged to Colonel Marshall's regiment of skirmishers, and was some 800 or 1,000 yards in advance of General Morell, says the enemy began to form in his front and to the right between 2 and 3 o'clock. He saw none to the left. Thinks the force was very large, and although unable to give even a proximate estimate of their numbers, believes they were strong enough to have resisted an attack of General Porter's corps. Second Lieutenant Stevenson supposed the enemy's force to consist of from 12,000 to 15,000; but he was a young man, with limited experience, and when he stated that the enemy's line of battle was but a mile long, it was sufficiently evident that a large abatement was to be made from his estimate. Colonel Marshall set the