s give point to the statement of General Merritt in a
communication to the adjutant general of the First cavalry division,
dated November 4, 1864, that the list of killed and wounded in a battle
is presumptive evidence of the degree and kind of service performed.[44]
General Merritt also gives the Michigan brigade credit for "overwhelming
a battery, and its supports," in other words capturing the battery.

CHAPTER XXIII

A MYSTERIOUS WITNESS

In the latter part of the winter of 1864-65 I was detailed as president
of a military commission, called to meet in Winchester to try a man
charged with being a spy, a guerrilla, a dealer in contraband goods, and
a bad and dangerous man. The specifications recited that the accused had
been a member of the notorious Harry Gilmor's band of partisans; that he
had been caught wearing citizen's clothes inside the union lines; and
that he was in the habit of conveying quinine and other medical supplies
into the confederacy. He was a mild mannered, inoffensive appearing
person who had been an employe of the Baltimore and Ohio railroad
company. He appeared under guard, before the commission, at its daily
sessions, accompanied by his counsel, a leading attorney of Winchester,
whose learning and ability were not less pronounced than was the quality
of his whisky, samples of which he, at irregular intervals, brought in
for the solace, if not for the seduction of the court. It was no more
like the article commonly called whisky than Mumm's extra dry is like
the pink lemonade of circus time. It had an oily appearance, an
aromatic flavor, and the lawyer averred that there was not a headache in
a barrel of it, though he was the only one who ever had an opportunity
to test the truth of the statement and there is no doubt that he knew.

The prisoner exhibited a surprising degree of sang froid considering the
grave crimes with which he was charged, the penalty of conviction for
any one of which was death. This attitude of the accused puzzled the
commission not a little, for he acted like either a very hardened
criminal, or a man who was both conscious of innocence and confident of
acquittal, and he did not look like "a very bad man."

The case was on trial when the army moved. General Sheridan seemed to
lay much stress on the matter for he refused the request of the
president of the commission to be relieved in order to rejoin his
regiment. A personal letter from General Merritt to Gener