enemy during Sunday until the final attack was made on an outwork north and west of the main fort, held by Colonel Keifer's regiment and Battery L, Fifth U. S Artillery, which the enemy captured. During Sunday the enemy approached on the Berryville road between it and the Front Royal road, within a few hundred yards of the town. Colonel Ely, with the Eighty -seventh Pennsylvania Eighteenth Connecticut, and Fifth Maryland, skirmisher with them during that day until the final attack . When that attack was made, all our troops went into the forts and rifle -pits. On Monday morning, when the retread commenced, the enemy's forces north of us between Pughtown and Romney roads, must have been within a very short distance. After the final attack made by the enemy on Sunday, I cannot say how near the enemy approached east, west, and south us.
Question. What had prevented the north side of the town of Wimchester from being occupied by the enemy at the time you began to retreat?
Answer. It was commanded by our guns in the forts . The road (Martinsburg)) was more completely commanded than any order.
Question. How great a space did the main fort and the star fort protect on the north side of Winchester ; and how much, if any, on the other parts of the town?
Answer. They protected to the full extent of the range of their guns.
Question. At what time, and under what circumstances, did you first learn what forces of the enemy were before you?
Answer. I was directed by General Milroy to take two companies of the Twelfth Virginia Infantry, and drive the enemy from one of our pickets posts. In executing that order, I captured a prisoner. After a close examination, I learned from him that he belonged to Hays'(Louisiana) brigade, which was apportion of Ewell's corps, and that the whole of Ewell's corps was present and operating against us. This was between 5 and 6 o'clock on the evening of the 13th . I immediately reported the prisoner, with his information, to Generals Milroy and Elliott .
Question. Could you have retreated safely upon Harper's Ferry on Friday?
Answer. I think we could have retreated on Friday morning with all of our personnel and material . In the afternoon, I considered it doubtful, on account of the approach of the enemy to Cedarville at 2 p. m. My opinion, however, is that we could have retreated at any time on Friday . The following question was then submitted for the consideration of the court, viz:
Could have done so on Saturday? If no, why not; judging from all the information you now have upon that subject? The court was then cleared, and, after mature deliberation, direct that the following rule of action be recorded, viz:
Questions and answers with regard to propriety of the defense of, and retreat from, Winchester, with regard to the time of its commencement, and the manner in which it was conducted, will be restricted to, and governed by, the information presented by the parties at the time, and not by what has been ascertained since. The court then adjourned to meet at 11 a. m. August 29, 1863.
TWENTIETH DAY. AUGUST 29, 1863 .
The court met pursuant to adjournment. Present, all the members and the judge-advocate. The judge-advocate then submitted the following protest that he had received from Major-General Milroy, viz:
" Major-General Milroy protests against the decision of the court excluding all testimony of facts actually existing at the time of the