By Maj. Asa Bird Gardner, counsel for the respondent:
Question. Please state your residence.—Answer. Martiu's Ferry, Belmont County, Ohio.
Q. What was your rank and command in the service of the United States on April 1, 1865?—A. I was colonel of the First Kegiment WTest Virgiuia Cavalry, and commanded a brigade of four regiments, First, Secoud, and Third of the West Virginia Volunteer forces, and the First New York Volunteers, Lincoln Cavalry, General Custer's Division.
Q. You finally attained what rank in the service of the United States? —A. Brevet Major-General.
Q. Where were you on the morning of April 1, 1865 ?—A. I was a short distance above Dinwiddie Court-House; it was about a quarter of a mile; retreated from the intersection of the Chamberlain's Creek lioad.
Q. What direction did you take when .you left there?—A. We followed the road that we were stationed on during the night, we followed it a short distance and then diverged to the lett, following mainly the direction of what was called the Chamberlain Creek bed, not on any road, but passing through fields and timber. We arrived at the left of the works at Five Forks, my left touching on the White Oak road. As we halted we were almost in a semicircle.
Q. Do you recollect where Pennington's Brigade was ?—A. Immediately to my right. I connected with Pennington's Brigade on my right.
Q. Mention on that trap (Cotton Map No. 3) tbe position of your brigade. You say it was on the White Oak road.—A. My lett passed through an open space and my extreme left touched the White Oak road up here. [The witness here marked the map as described.] The shape of our line would be about in that direction, Pennington's Brigade lying here, my line connecting here and extending up there when we first reached that point. [Indicates on the map, and tbe Iteeorder marked the lines drawn, with General Capebart's uame.J
Q. When you moved up, did you move up from Diuwidtlie CourtIlouse through the woods or cleared country?—A. We moved a short distance on a road, onto what was called the Adams farm, I think; then we left the farm and entered the woods. Our march was principally through the timber land
Q. Did you come out upou any open field ?—A. No, sir; I think not upon any cultivated]field. There were some places where there was only a little undergrowth. I think we passed through no fields. I do not recollect to have let down any fences or met with any obstruction of that kind.
Q. Do you recollect the position of Pennington's Brigade, in relation to your own ?—A. It joined me on the right.
Q. Do you recall any circumstances after you united with Pennington's Brigade, as to its movements ?—A. We were united on tbe principal part of tbe march, my right touching his left. We went into positipu in that shape. Very shortly after we took position, Pennington retreated his brigade, and the left of my line, being in open space, was exposed to fire from tbe enemy's works. I rode over to near the White Oak road, which lies upon an elevated plateau, and could see the direction that the fire was coming, and from that position I saw Colonel Pennington retreat bis line. He only bad a very short distance to retreat until he entered an open space or field. I saw it go a considerable distance to the rear, aud observed the enemy move out of their works to follow him. My command was dismounted. I marched my cotnniaud by double quick immediately to the right, circled around to the rear of that point that projected, and retook the position that Pennington's Biigade took when he first advanced there, and there we had a very brisk fight.
Q. After that, did yon remain there ?—A. Yes.
Q. To how late a time f—A. Until in the evening, when we made the final charge.
Q. When you say in the evening, what time in the day do you have reference to ?—A. I mean between five aud six o'clock.
Q. In the meantime had you continued dismounted?—A. We did until the final charge was ordered. My horses had beeu sent up; I was notified that my horses were there. I was ordered to mount and charge mounted.
Q. What direction did you then take in that charge?—A. We formed upon our front. We charged almost directly north, obliquing slightly to the west—toward the left—as we advanced.
Q. How far did you go in that direction ?—A. Just across the open space.
Q. Did you reach the White Oak road ?—A. Yes; passed the White Oak road. The enemy's cavalry was then formed just in the rear of the White Oak road, in the edge or skirt of the timber in front of us. Colonel Wells's Brigade charged simultaneously with my brigade, about one hundred yards to my right, charging iu column of squadron. As we passed out of the piece of woods iu which we had formed, we could get a view of the cavalry in front of us. We each brought up a squadron right aud left, and made a continuous battle Hue. 1 brought up twosquadrons to the left aud formed a battle line about the left of the column squadron. In that formation we struck the cavalry. The force in front of me gave way rapidly; was fighting but a few minutes. They fell to the rear and to my right, just doubling back in front on Colonel Wells's brigade. L charged immediately on crossing a deepditch, and passed at least a quarter of a mile in the rear of the rebel works, and then turned short to the right; I observed that this cavalry had retreated back in there and that there was a force of cavalry still farther west of the one whose flank had doubled back. I turned immediately to the right, confronting them, and back in the rear I observed Colonel Wells's brigade facing in the same direction. We were then in a fieid. I do not see any field marked here that would correspond to it. From my recollection it ought to be here [witness points to the positiou that Colonel Durland has marked for General Custer]. The field in which Colonel Wells was formed facing eastward—it strikes me that his position would be here, whilst mine was farther north. While we were both moving in that easterly direction, General Custer, with his bodyguard, had followed me in the charge, and charged in with his bodyguard immediately between Wells's brigade and my own, and was recharged by a rebel command, and they came very near capturing him with his body-guard. Colonel Wells sent the forces from his left, aud I turned with the small command that I had there—my brigade had not yet entered the field, only a small portion, I think, that was with me, probably 200 men; we both circled immediately in the rear of Custer and his body-guard, and he got out. By the time he got out by the fence that 1 had thrown down, my command had charged back and went farther east considerably than Colouel Wells's brigade was in position. At the farthest point that we marched east, we touched the right of our infantry. 1 recollect my surprise at coming up to a stand of colors and finding infantry in line there; the line was north and south, facing west. 1 came directly up to the right of that line.
Q. Where was that?—A. The infantry was in the woods, and I had jost emerged from the field when 1 reached them. That was the same field I have previously spoken of, at the east edge of the field where I I met the infantry. The cavalry that we had charged against had fled northward; we saw them flee in that direction. And when we came up to that point, close to the infantry, there was a road running north or northwest, and we pursued them on that road five or six miles—General Custer's cavalry with myself.
Q. Whose infantry was that that you saw in there!—A. I was informed that it was General Crawford's command; and I saw General Crawford a short distance to my right, in frout of the line.
Q. Did you have any conversation with General Crawford J—A. No, sir; I was not near enough to him to converse with him.
Q. How long did you continue the pursuit that evening ?—A. We pursued them for a considerable time after dark; it became dark very soon after we left the infantry; it was almost dark; it was twilight when I joined tbe infautry.
Q. Have you any recollection of your losses during that day ?—A. No, sir; my loss was not very heavy. The heaviest fighting was with Colonel Wells's brigade that was to my right.
Q. When yon made that final charge did you see the position of the enemy's works along the line of the White Oak road 1—A. Yes; as we passed the flank of the works. We had lain in front of them in the morning, so close to them, that we could see the direction of their Hue of works upon our front.
Cross examination by Mr. Albert Stickney, counsel for the applicant:
Q. About what time of day was it that General Crawford joined you upon your right with his command f—A. I think it was half past six o'clock in the afteruoou.
Q. About sundown f—A. Yes. It was sundown; the shades of the evening were falling. It soon became dark.
Q. When Crawford with his command joined upon your right!—A. I came up to where his line was formed. I came in from the west.
Q. When you brought your command up ou Crawford's left, how much of his command was there ?—A. I cannot tell you; I saw perhaps as much as half a regiment of it in view of him.
Q. Where was the rest of it, farther to the right still ?—A. I do not kuow where it was; I presumed that the line extended southward from the formation of what I saw. I saw that that was the right of the line; I came right up facing the right of the line; there was a division stand of colors.
Q. Was Crawford upon your right at the end of those movements, or about half-past six!—A. Where I saw him he was not immediately at the right of his line.
Q. I mean was the infantry that belonged to Crawford's command upon your right or your left when you joined forces with them ?—A. We were at right angles. What I saw of his forces extended to my right.
Q. Where was this portion that joined you immediately?—A. Justin the edge of a wood ou the east side of a field.
Q. You think it was ou the east side of a field. But it was just upon your right!—A. I was moving to the east, directly to the east, when I came up to the infantry that was formed north and south—what I saw of them.
Q. Of course you think you were moving to the east. This was about half-past six o'clock t—A. Yes.
Q. In what direction would you make it that Crawford's command was moving at the time !—A. They were not moviug. But I judge that they had come from the east.
Q. Moving westward ?—A. Yes.
Q. Will you indicate where it was that you think Crawford's command was at the time you joined it!—A. I cannot indicate it upon that map by what I recollect, unless there was an open field here on this part of the map; but it seems to me that this open field [Young-Boisseau field] is too far to the right.
Q. Do I understand you that [indicating on map] about here would be the place?—A. It would seem to me that it would be here somewhere—on this part of the map. [About a quarter of a mile due west from the Young-Boisseau field ]
Q. There, you think, you joined your right to the left of Crawford's command?—A. Yes.
Q. How large au open field was it where you joined on him in this way ?—A. I have stated that Crawford's liue was not formed in a field, but we passed over quite a large field going from the west directly eastward and before we reached Crawford's command; and a short dis tauce to the east side of the field is where we touched the right of the iufantry line.
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Q. Then, was your command in a field just about the time that you joined Crawford ?—A. We had just passed over a field.
Q. How large a field was that !—A. It was a large field. It was the field in which I have described the charge.
Q. With Crawford's command on the edge of it! Was it just on the edge of that field; or did it reach into the field or not!—A. Did not reach into it. It was but a short distance north of the north line of that field.
Q. And that is the field where you had had the charge?—A. Where General Custer had been charged and we had counter charged. After charging across that field and entering the timber, on the north side of which we came to the infantry.
Q. How large was this field that you have been speaking of?—A. How shall I attempt to describe it; by distance or by acres?
Q. The way you can give it most accurately.—A. I would say it was a quarter of a mile square.
Q. Do you recollect whether there were any buildings in it ?—A. There were no buildings in sight There were no buildings in that field at that point, surely.
Q. Any buildings on either side of it!—A. None that I saw.
Q. Had you seen any buildings dnring the afternoon ?—A. We were in sight of buildings before we charged and in sight of them shortly after we started to charge, and none after we crossed the White Oak road. That is, there was a building near the White Oak road.
Q. You spoke of a charge and counter charge. About what portion of the day was that?—A. That was late. That was after the principal part of the battle had been fought. There was but very little fighting after that.
Q. Was that charge and counter charge in this field that you have just mentioned?—A. Yes.
Q. Did you see an orchard there?—A. No, sir.
Q. Did you get any artillery fire there?—A. No, sir.
Q. Did you hear any artillery firing during the afternoon!—A. Yes; the artillery appeared to be stationed near the forks.
Q. How tar do you think you were from that artillery at the forks?— A. At what time?
Q. During the latter part of the afternoon.—A. During the time I speak of the charge in the field?
Q. No, sir; before you charged.—A. I have pointed to the forks on the road, as where I understood the artillery to be stationed—where I learned it was afterwards, and where I heard firing from?
A. I want your recollection at that time. As you recall the scene, did you hear that artillery tire to the right of you, or front, or to the left?—A. To the right and front.
Q. About how far from you did it seem to be—the guns from which that fire came?—A. About COO yards.
Q. Was your brigade the right brigade of Custer ?—A. The left brigade.
Q. Was there a brigade in reserve?—A. I do not know. Q. Which brigade was upon your right?—A. Colonel Pennington's brigade.
Q. Pennington joined with the left brigade of Devin's division ?—A. I cannot say as to that. Q. About what length was your front as you lay there during the afternoon f—A. When Colonel Pennington's brigade was returned it lapped partly on my brigade.
Q. Yours and Pennington's brigade lapped a little?—A. Yes, when bis brigade was returned.
Q. How many regiments had you in line!—A. Four regiments, sucli as they were—tractions of regiments. I had no reserve.
Q. About what was the number of them ?—A. They would number about between 300 and 400 to the regiment.
Q. According to your recollection, what was the length of your front as you lay there during the afternoon ?—A. My brigade front covered about 300 yards.
Q. And Pennington's—could you give any judgment as to what his front was ?—A. His front would be equal to mine.
Q. Do you recollect what regiment of yours was upon your right and which upon your left'—A. No, sir; I do not.
Q. Was there more than one of these charges and counter charges! Did you light off and on through the afternoon ?—A. Yes; we lay there investing the works, and we skirmished all the while.
Q. Did you hear artillery firing at all to your left ?—A. No, sir.
Q. You do not recollect any artillery firing to your left ?—A. No, sir.
Q. Was your right in the woods during the greater part of the afternoon, before your final advance ?—A. It was all in the woods.
Q. And your right joined on Pennington's left, as yon said ?—A. Yes.
Q. Did your position change during the afternoou until the very close of the day, at sunset?—A. It did not until we were ordered to mount
Q. About what time was it that you were ordered to mouut?—A. I should say it was half past five o'clock.
Q. Up to that time your recollection is that your position remained unchanged ?—A. Yes.
Q. And Pennington's, too, as far as you knew ?—A. If you understand me—as I stated first, when Pennington's brigade retreated I moved to the right. When his brigade came back it came back to my support, and instead of taking position entirely to ray right, it partly lapped my brigade, supporting my brigade and the brigade that lay to his right.
Q. That change of position that you are now giving consisted of your moving a little farther to the right than you had been before ?—A. Yes; That was done there soon after we reached the position in the morning. About from 12 o'clock until we were ordered to charge mounted, about half past five o'clock, our position remained the same.
Q. Your right all the time in close connection with Peuniugtou's left? —A. Yes; or being overlapped by his left.
Q. If Pennington's right rested here at Five Forks, or here ou th s road, where do you put it that his left rested ?—A. About half the distance from there, to this point.
Q. Will you look at the scale of miles and see what distance you make that from there to here [indicating positions on mapj. Taking your front at about 300 yards and his at about 300 yards, as you have given it—I am giving you now GOO yards—1,800 feet—if Pennington's right rested upon this road, that would bring your left about to there, would it [indicating position on mapj ?—A. I cannot say where Pennington's right rested. I know where my left rested; and 1 know that my right touched his left when we first went into position. I also know, when be was brought up, that his left covered a part of my right.
Q. Your front, all through the afternoon, was about three hundred yards, and your judgment was that his would be about the same ?—A. That was my guess of it.
Q. You have no personal knowledge of where bis right rested f—A. No, sir; not wbere his right extended to. I have an idea, but it would only be approximate.
Q. Which regiments were in your brigade ?—A. The three West Virginia regimeuts and the First New York Lincoln Cavalry.
Q. Can you give me the commanding officers' names ?—A. I believe I can. It is so long since, it would take a moment to think. Col. William Allen, of the Second West Virginia. >
Q. Do you know his address ?—A. He is deceased.
Q. The next one, name and address?—A. Maj. Bentley Howe, com-, mauding the First, my own regiment, who was killed in the last engagement of the war? at Appomattox, just before the surrender. If my recollection serves me right, Colonel Witcher, who was then a lieuteuautcolonel—he has recently been appointed paymaster in the Army—his residence is at Washington—he commanded the Third Regiment.
Q. Where was he in the line?—A. I cannot recollect exactly how the regiments were placed in line.
Q. Can you give the name of the remaining officer ?—A. No, sir; I cannot recollect which one of the officers of the First New York Cavalry commanded on that, morning.
Upon the request of counsel for the applicant, the court at this point, 2 p. m., adjourned until to-morrow morning at 11 o'clock.
LOOMIS L. LANGDON, Brevet Lieutenant-Colonel, U. 8. Army, Recorder.
SIXTY-SEVENTH DAY.
Army Building, Xew York, Friday, Octuber 15, 1880—11 a. m. The court met pursuant to the foregoing orders and adjournment. Present, Brig. Gen. C. C. Augur, U. S. A.; Col. John Newtou, Corps of Engiueers, U. S. A.; Maj. Loomis L. Langdon, Second Artillery, U. S. A., recorder.
Lieut. Col. G. K. Warren, Corps of Engineers, the applicant (late major-general United States Volunteers), also present with his counsel, Mr. Albert Stickney.
Also, Maj. Asa Bird Gardner, United States Army, couusel for the respondent.
The Recorder read the minutes of the proceedingsof yesterday. .
The testimony of the witness, Bvt. Maj. Gen. Henry Capehart, late United States Volunteers, was read in his presence, and corrected by bim.
The witness, Bvt. Maj. Gen. Capehart, late United States Volunteers, in explanation of his testimony, stated as follows:
I wish to say to the court that the distance passed over when charging, the time occupied in passing a given distauce, I find a most difficult qnestiou to determine. When I say a field is a quarter of a mile square, 1 wish it to be understood that I state approximately. I do not give it from any knowledge of the field, or from having examined maps, or from having passed over the field afterwards. I give it from my recollection of the occurrence as we charged across it. We were dismounted, in marching to the position where we were at 12 o'clock. As dismounted cavalry, we were not in the habit of marching in close line. As cavdlry we were deployed more as skirmishers, and our front would cover a much greater distance in the manner in which we went into position than would infantry of the same numbers, probably, or greater than double the same number of infantry. We were not close in line as we lay investing those works.
The record of the proceedings of yesterday was then approved.