have passed with my corps, if at all, in extreme disorder and without artillery. If, on the other hand, I had adopted the only other course left open to me of falling back to Bethlehem church, and then following in the track by which General McDowell had proceeded three hours before this order was written, up the Sudley Springs road to be battle-field, then the enemy thus posted in force in my immediate front must undoubtedly have fallen upon my rear with such crushing effect as to destroy or rout my whole column.

Thus I affirm that the key to the whole situation, which I held, both at the time this order was written and at the time when it was received, was the presence of the enemy, unknown to General Pope, directly in my front, at a distance of not more than 1,200 or 1,500 yards, and in great and accumulating force, consisting of artillery, infantry, and cavalry.

This enemy, thus posted, I could not attack on his right flank, because his right flank extended farther southward than my extreme left.

This enemy I could not attack on his left flank, because to make such an attack I must have passed through an impracticable country, and in the inevitable disorder consequent upon that character of the country, my column would have been, as it moved along, exposed to the assault of Jackson's right, and at the same time to the resistance of the separate corps of the enemy, against which it would have been moving.

This force of the enemy thus in my front I could not attack in front, because to have made such at attack in front upon him would have been to uncover my own troops, and present them wholly exposed to his attack from under cover, and in a strong position, while they were moving or attempting to move through an open space, consisting of a country broken with defiles and obstructed by patches of timbered land, through which troops could not pass in order and artillery could not pass at all. Besides this, it is wholly manifest that no such attack upon a separate force of the enemy, posted in my front, was in any way contemplated by the order under consideration.

I proceed now to cite from the record the testimony of eye-witnesses, proving the whole situation as above described.

I begin by incorporating in this defense, as a part of it, the entire testimony of Colonel Marshall, captain in the Regular Army and colonel Thirteenth New York Volunteers. I thus present the whole of his examination-in-chief, his cross-examination by the judge-advocate, and his examination by the court. I give this prominence to his testimony, first, by reason of the fact disclosed in the testimony itself, that what he thus deposes is the highest and best possible evidence in the case, he having been specially assigned, early on the 29th of August, with his regiment, to which another regiment was soon added under his orders, to the sole and exclusive duty of making a careful, continuous reconnaissance of the enemy, and of his constantly advancing and accumulating force in my immediate front, and of the whole military situation to the right of my column, where Jackson's right was operating, and also to the left of my column, in which direction the enemy's line like-wise extended. I bear in mind, also, in making this use of Colonel Marshall's entire testimony, the circumstances under which, and the mounter in which, it was given, all of them making, us I believe, upon the court as strong an impression as upon myself. His testimony was given by him at his quarters, upon his bed, to which he was confined by a grievous and nearly fatal wound, received in the recent battle at Fredericksburg. His face was place from weakness and loss of blood, by this eye was bright and keen with the intelligence and the spirit of a true soldier, and what he had to say was spoken with an exactness