in the rifle-pits and killed several men, and, as I rode down to Rigby's battery to raise the white flag there, the shells flew all around on every side of them, covering the men with dirt from the embankment in front, and tearing the ground up in the rear.
By General WHITE:
Question. That was an engilading fire on that line?
Answer. Yes, sir; and a very dangerous one. The men had kept their positions very bravely, and were fully resolved to fight to the death when the attack should be made. That regiment would probably have stood very firmly at that point.
By the COURT:
Question. You spoke of Major Baird, of the One hundred and twenty-sixth New York. Had You any opportunities of judging of his conduct as a soldier and an officer?
Answer. I had not. During the time of that artillery fire Monday morning, I rode, on two occasions, along Bolivar Heights were the One hundred and twenty-sixth New York and the Sixtieth Ohio were, but I was riding very rapidly, and merely rode along to see that the regiments were there, ready, in case the enemy advanced on that party of the line; and then I rode along to the battery, in obeying the order of Colonel Miles to raise the white flag. It was rather too dangerous a place for a man on horseback to stop to make particular investigations into anybody's conduct, for the whole air seemed to be filled with cannon balls and shells passing swiftly over, and I preferred riding on to standing still. I did not know anything, however, against Major Baird's conduct there on Sunday or Monday, and heard nothing against his conduct on either day. What his conduct was on Maryland Heights, where he was in command of his regiment after Colonel Sherrill fell, I cannot speak of, as a matter of course, for it was not under my observation.
Question. Do you know anything about Colonel Miles' commands in reference to Maryland Heights?
Answer. I do not.
Question. Had you any conversation with him about it?
Answer. No, sir; I never had any, either with him or Colonel Ford.
Major HENRY B. McILVAINE, called by the Government, and sworn and examined ad follows:
By the JUDGE-ADVOCATE:
Question. What position do you hold in the military service?
Answer. Major in the Fifth New York Artillery.
Question. Were you present at Harper's Ferry during the late events which resulted in its surrender?
Answer. I was.
Question. What is your judgment as to the necessity which existed for the surrender at the time it was made?
Answer. I think it was necessary for the saving of life.
Question. Will you state to the Commission the reasons which induced you to think so?
Answer. I supposed the position was weak to stand against an assault from the enemy, from the fact that they could take a position out of range of what ammunition we had, and open their batteries effectually upon us, and it would have just made a slaughter-house of our position.
Question. How long do you think the position could have been held at the time of the surrender?
Answer. I think it might have been held that day, no longer; but I do not think it would have been policy in any commanding officer to have sacrificed his command. It could only have been held by the retiring of the forces in a condensed position as it were, and dreadfully exposed; but the result, in my opinion, is the same.