and said, "Sir, we have held a council of war, and we have concluded that these men will not fight." I turned to the men. Said I, "Men, if you have no officers to lead you, I will lead you myself, as your immediate commander. If there is a single man here who will follow me, I will lead him." And out of the whole number there-some 300, I should think-only five men stepped out. I put them on the left as skirmishers.
Question. To what regiment did those five men belong?
ANSWER. To the One hundred and twenty-sixth Regiment, I think. I never reached where those logs had been cut down until the heavy firing had commenced. I never had been there before, and knew nothing at all about the position. I was looking around to ascertain the ground.
Question. Have you the names of those five men?
Answer. No, sir. I wished afterward I had taken them. They came to me and said, "Sir, we are the representatives of the regiment." I am not positive that they belonged to the One hundred and twenty-sixth Regiment, but I think they did. I will say further, however, that behind those breastworks, as long as the men fought, the officers of the One hundred and twenty-sixth, those I knew, fought as well as any others there. I will say that for them. Colonel Sherrill was side by side with me, and he did his duty as nobly as any officer I ever saw. The major of the One hundred and twenty-sixth was on the left, I understood. I did not see him.
Question. Was this after or before the colonel was wounded?
Answer. He was wounded just after I first saw him.
Question. Then, at the time these five men volunteered the colonel was wounded?
Answer. Yes, sir; two or three hours before that.
Question. Did you see the officer in command of that regiment who succeeded the colonel?
Answer. I did not. I do not know who was in command of the regiment at the time.
Question. Did you recognize him among those officers who said they had held a council of war, and the men would not fight?
Answer. No, sir
Question. Can you name any of those officers?
Answer. No, sir.
By the JUDGE-ADVOCATE:
Question. What was their position? Were they captains, lieutenants, or of other grades?
Answer. I think that Major Graffin, of my regiment, could give you more information on that point than I can.
Question. When you addressed the men at that time, what was their bearing? Were they standing in any order?
Answer. No order. It was impossible to form the men in any order on the heights; the trees were so thick, and the rocks, and everything.
Question. Did they dissent from the declaration of their officers that there had been a council of war, and the men would not fight?
Answer. No, sir: they said nothing at all. I posted a guard at one time, and told them to shoot any man who should attempt to go down to the battery. I took out my revolver to them at one time, and my surgeon did the same thing. There were some of all regiments; perhaps some men of my regiment. I do not know that there were in this number; but at the time of the retreat of the men from the breastworks there were men of all regiments scattered all through the woods. The officers got separated from the men, and they went on down toward the battery. I have this to say about my men-that they did very well on Maryland Heights; they followed me. That is all I have to say for them. Where there is a retreat ordered in that way, at