hundred and fifteenth New York, and placed them, himself, in a position to guard McGrath's battery. These companies were not on the top of the hill at any time. Colonel Ford made every effort in his power to obtain re-enforcements and other means of defense; he sent written requests to Colonel Miles for axes, spades, and other intrenching implements, and for artillery; he sent verbal requests for the same by his officers, and went in person to Colonel Miles, and importuned Colonel Miles whenever he met with him, which he often did, for these things, so greatly as to excite expressions from him that implied his displeasure. Still, Colonel Ford persevered in these requests from the time he took the command of these heights down almost to the hour when he gave the order to evacuate them. He got ten axes, two Parrott guns at the battery, and no more intrenching tools or artillery. He received the re-enforcements already mentioned, and no more. Whether Colonel Miles did right or wrong in not complying with these requests, it is no part of our duty here to inquire into. It is enough for us to show that Colonel Ford did all that he could do to obtain such aids, and could not, and did not, obtain them; and to show further that without these means of defense furnished in due time he could not hold his position against the forces of the enemy.

V. As a general statement, the orders he received were to hold Maryland Heights as long as he could do so, and, if he should be overpowered by superior force, to spike the guns and throw them down the hill, so that they could not be used by the enemy against Harper's Ferry, and to retreat in good order. One alleged order is disputed; one witness, Lieutenant Binney, states that an order was sent by Colonel Miles, directed to Colonel Ford, to hold Maryland Heights "till the cows' tails dropped off," and that it was receipted for on the envelope in which it was sent. Colonel Ford denies that he ever received any such order. No person is named by whom that order is alleged to have been sent; no person has testified that he delivered any such order to Colonel Ford. The envelope, on which it is alleged a receipt was written, is not produced or accounted for. But the order-book is in evidence, and there is there that which purports to be a full copy of that order. Now, if it was copied from the original, and it purports to be so as much as all the other orders in the book, then the copy must have been made by some person who had that original order lying before him; and, after that, it must have been sent away, because no one claims to have seen it after it was sent, as is alleged, to Colonel Ford. The order is dated September 13, and the book itself upon its face shows indisputably that that one order of September 13 and three general orders of September 14 (1) were copied before the disputed order was placed in the book. This is a matter that certainly requires explanation, and there is no explanation attempted; no one witness states the name of the person who made this copy, or in whose handwriting it is; it is at the top of the right page of the book, so that the person who did so, if he placed it there before the copies of orders of the 14th were made, could not but have seen that he was leaving a page in blank. It is not like the accidental turning of two leaves. This shows, and in our judgment conclusively, that this paper never came from Colonel Miles, and that no such order was issued by him on the 13th day of September, 1862, because, if it had been issued and copied into the order-book on that day, it would necessarily have preceded the orders that were issued and copied on the 14th day of September. It must have been placed upon the order-book by some person who had access to that book; who had the opportunity to put it there. The handwriting resembles that

in which other copies are entered. It is either the same handwriting, or the handwriting of a person who has endeavored to imitate as closely as possible the handwriting of the preceding entries. If it is the same, then Lieutenant Binney knows whose it is. If it is not the same, then it is a forgery; and no man would forge such an order if there were in fact a genuine order the same in substance. Lieutenant Binney swears positively that he does not know who put this matter upon the order-book. It was his duty to state the name to you if he knew it; and to state, further, his opinion of the handwriting. But it must have been placed there by some person of the military family of Colonel Miles; no others had access to the books; and Lieutenant Binney knows all those persons, and is acquainted with the handwriting of all who acted as clerks to Colonel Miles while he and they were with Colonel Miles at Harper's Ferry.

But, further, Lieutenant Binney published what he informed the public was an order from Colonel Miles. He did not state to the public in his card that he published the alleged order from memory merely. The public were caused to believe by him that he copied that order. But now and here he testifies that he did not copy it, but wrote it only from memory. The alleged order published is, according to our recollection of it, exactly the same as that upon this book. This identifies the person. Lieutenant Binney wrote both. He denies, upon his oath, all knowledge of how this matter came upon this order-book. It is, then, a mere forgery. But, further, the alleged copy has upon its face evidence that it never came from Colonel Miles. The words "till the cows' tails drop off,” are not such as would have been employed by an old man, as Colonel Miles was. They are such as only a young man, and quite a young man, would have used. They are the offspring of youthful levity. The taste is not that of Colonel Miles. That he was a man of correct taste the previous orders in the book show; not one of them, so far as we have seen them, shows any mark of bad taste or vulgarity; all are written as a gentleman would write them. But there is still further and more conclusive evidence that this alleged order did not come from Colonel Miles. He knew the position of Colonel Ford, and knew also that the cannon at Camp Hill did not and could not defend the position of Colonel Ford at "all points." The position of Colonel Ford was the whole defense of Maryland Heights, and the guns at Camp Hill defended only so much of it as was within their range. The whole place where the attack was made upon Colonel Ford's position was behind the hill from the side on which these guns were; they could not have been brought to bear upon the enemy until after the forces of Colonel Ford had retreated and were below the battery commanded by McGrath, and then they would have been nearly useless. But, further, we assert that not only was no such order given, but, on the contrary thereof, that Colonel Miles did order Colonel Ford to vacate the heights. Now let us see where is the weight of the evidence-on which side is the proof. 1. Mr. Noakes states that Colonel Ford rode up to an officer in his presence and said to that officer, "I have vacated Maryland Heights, according to the order I have just received." This was while Colonel Miles was within half a mile of Colonel Ford, alive and in good health. The same witness testifies that when he suggested (at General White's request) to Colonel Miles the propriety of trying to take possession of Loudoun Heights, he replied, "Poh! Poh! I cannot hold Maryland Heights. I have just informed him to evacuate them."

2. Colonel Maulsby states that Colonel Miles ordered him to destroy the pontoon bridge after the retreating column should have crossed

upon it, and said to him, "I am afraid Colonel Ford has abandoned Maryland Heights most too soon," words which, briefly, are orders from him to Colonel Ford to abandon them, but that it was done sooner than he expected.

3. Lieutenant Binney himself testifies Colonel Miles said the running of the troops would eventually cause the evacuation of the heights. He said to Ford, if forced by overwhelming numbers to leave the position, not to do so without spiking the heavy guns.

The circumstances stated by Colonel Cameron are not consistent with the giving of any such order at the time it is alleged to have been given. He was ordered to have his regiment in readiness to go over to support Colonel Ford. He obeyed the order, and about 1 o'clock Colonel Miles countermanded it, and said the troops would not be needed over there. Why would they not be needed? The enemy was still there. The only reasonable solution is that he had given an order to Colonel Ford to spike the guns and retreat; because in any other contingency they were greatly needed by Colonel Ford.

4. Captain McGrath heard Colonel Ford read an order from Colonel Miles to vacate. Miles told McGrath if compelled to leave, to spike the guns; states that Colonel Ford regularly examined the orderly who brought the order, respecting the time he was bringing it. Colonel Ford was on horseback and McGrath standing by him with his hand on his thigh while he read the order to him, and consulted with him about it.

5. Mrs. Elizabeth Brown heard a conversation between Miles and Ford near 12 o'clock on Saturday; the men were ordered to leave the room. She heard Colonel Miles tell Colonel Ford that his men would have to fall back to the Ferry; they could not hold the heights; the thing was impossible; the rebel force was too strong. When she got down stairs Colonel Miles was at the door.

Lieutenant Binney swears that his statements do not, in substance, differ from those of Mrs. Brown.

The conduct of Colonels Miles and Ford are altogether inconsistent with any such order. Colonel Miles met Colonel Ford at the pontoon bridge. Did he charge him with disobeying his orders No. Did he put him promptly under arrest? No; he never gave any such order. Did he reason or expostulate with him, or ask any explanation of his conduct? No. The witnesses all state, who saw them, that they walked along in cheerful, pleasant conversation. It was not until Monday that Harper's Ferry was surrendered; and during all that time, from Saturday till Monday, not one witness states that Colonel Miles made any harsh remark about Colonel Ford or his conduct. The testimony of the chaplain, who gives you the words of Colonel Miles, but not one word at the very moment, when, if he had given no such order to evacuate, that implied that he had not done so [sic]. It all is proved in the fact that this order had to be obeyed sooner than he expected it to be. It was the duty of Colonel Miles to have immediately ordered Colonel Ford under arrest, if he believed that he evacuated Maryland Heights contrary to his orders. He was in good health, in the full exercise of all his faculties, and well knew what his duty was. That no such order was even talked of to any man by Colonel Miles is abundant proof that he knew Colonel Ford had not subjected himself to arrest. His conduct can be explained upon no other theory.

Let us now turn to the conduct of Colonel Ford. He told Captain McGrath that he had an order from Colonel Miles to evacuate; read the order to him; knew Colonel Miles' handwriting. Now, it was either

true or false. If he had no such order, then the paper that he was reading to McGrath was a forgery of the order of his superior officer, who was alive and well, and within 2 or 3 miles of him. He rode up to an officer and told him he had left Maryland Heights in obedience to an order he had received. He had or had not received such order. If he received no suca order, he was guilty of willful falsehood. After that, he was inquiring for Colonel Miles, and soon afterward found Coloneĺ Miles, and then they went on together in pleasant conversation.

Take, now, all this testimony, not singly, but all together; the position of the entry on the order-book; the testimony of Noakes, Maulsby, McGrath, and Brown; the conduct of Colonel Miles and of Colonel Ford, and you must discredit a volume of evidence before you can reach the conclusion that the order referred to was ever received by Colonel Ford. Indeed, it would seem to be doubtful whether such order was ever issued by Colonel Miles; but that is a matter in which we have no interest, as, unless received by Colonel Ford, he is not responsible for disobedience to it. This relieves Colonel Ford. He evacuated Maryland Heights under the order of his commanding officer. This obedience to that order was an act of official duty on his part. He was bound to obey it. He did obey it, and that ends the inquiry as to him. But if any member of the Commission shall entertain a different opinion, then I respectfully submit that Colonel Ford should have evacuated Maryland Heights at the time he did so; that he did right in ordering the guns to be spiked and the men to go over to Harper's Ferry. In other words, that there was a military necessity for the evacuation, and if he had had no superior officer to command him he should have evacuated the heights as soon as he did so. To determine the matter, we must see, as exactly as possible, the condition of his command and of his position at the time he did give the order to spike the guns and to fall back upon Harper's Ferry. What was that condition?

The enemy had already marched through the defile of Solomon's Gap, and were in three columns, one in front, one on each wing, with artillery and infantry. The [strength] of the enemy is variously estimated from 25,000 down to 12,000. Colonel Ford's cavalry had been shelled out of Solomon's Gap on Thursday night. Colonel Ford had no mortar, not a single piece of artillery, to oppose them, and they were pressing on with both infantry and artillery. The One hundred and twenty-sixth New York Regiment had fled; were rallied as well as they could be, and Colonel Sherrill was wounded; they fled again, leaving to Colonel Ford only about 300 or 400 men, infantry and dismounted cavalry, armed with carbines. The enemy was approaching on both flanks and from the center, from 25,000 down to 12,000 men, with fifteen pieces of artillery at least. Could these 300, or 400, or 600, or, if you please, 1,000 men withstand the enemy even upon the lowest estimate of their numbers, 12,000 men, armed as they were with artillery, and the means of shelling our troops! Could Colonel Ford have any reason whatever to hope for success in such a conflict? His troops had already been driven back to the breastwork of logs, and from that point back to a depression in the hill, and from that point back still farther to another depression, below which were the guns. He was strictly ordered to spike the guns and throw them down the hill, so that the enemy could not use them against Harper's Ferry. Another backward [movement], another repulse, only was wanted, and the guns were lost. were his superiors, greatly so, both no special advantage of position; he they were coming up on both sides.

What was to be done? The enemy in arms and in numbers. He had was on a hill, so, too, were they, and A day's delay and the guns were

lost; an hour's delay and they were in increased danger. Why fight and sacrifice the lives of his men when he could have no hope of success? Was it his duty? Is it the duty of any officer to continue a conflict when he knows that the only result of his doing so will be to add to the number of the slain? It was his duty to save the lives of his men. Honor, conscience, patriotism, reason, religion, every obligation that can bind man to man, and man to his God, required it at his hands. Every officer who was on the hill and who is here as a witness has stated that there was a military necessity for the evacuation at the time Colonel Ford gave the order to do so. There are witnesses called by the Government-Major Hewitt, Major Steiner, Major Baird, Major Russell, Colonel Downey, Captain Brown, Captain Whittier, Captain Grafflin, Lieutenant Carnes, Adjutant Pearce, and many others, all unite with one voice in this declaration.

Colonel D'Utassy states that he was surprised when Colonel Ford left Maryland Heights, and believes they could have been held longer; but he is careful to add, "If re-enforcements had been sent to Colonel Ford;" that is, if he had been re-enforced in due time, for the arrival of fresh troops, no matter how great their numbers and how complete their equipments, after the time when they were too late to be of service, would not have been re-enforcements in any proper sense of the word. I take this only as a specimen of all the rest. Every one is careful to add that Colonel Ford must have been re-enforced in order to enable him to hold the heights, and implies that he could not have held them without such re-enforcements, so that the difference in opinion is only apparent, and not real. Colonel Ford himself always said he could hold the heights if he was properly re-enforced. But with all his efforts, after having strained every nerve to obtain such re-enforcements, he could not do so. The result was inevitable, and he knew it. All the officers knew it. The heights were abandoned. In addition to this, but one of these officers who states that the heights could have been held longer was on the hill or knew with any reasonable certainty the force that Colonel Ford had to contend with. There was, then, a military necessity for the evacuation of Maryland Heights at the time Colonel Ford ordered it to be made.

The opinion of a commanding officer, formed upon the field, with all the facts fully before him, pressing upon his attention, calling for the prompt exercise of his judgment and skill, should in all cases be respected, and will by this tribunal, and will there be treated with great deference and not lightly overruled. You cannot by all the evidence you can obtain, have so full and so clear a view of all the circumstances that surrounded Colonel Ford at the time he gave the order as he had at that time. That Mrs. Brown was there no one denies or doubts. It was her house for the time being; her husband was in the battle, and she was necessarily anxious, not to say curious, to know what was to be the result. That there was a hole for the stove-pipe to pass through no one doubts, and but a plank floor. She could then hear every word that passed between Colonel Miles and Colonel Ford. Colonel Ford was angry, paced up and down the room and swore that it was a shame. He received the order, but did so with great dissatisfaction. Just as Colonel Miles was leaving the house, Major Steiner met him at the door.

Lieutenant Binney is asked whether he contradicts the lady, and swears he does not, but swears that he agrees with her substantially in her statement.