Page 538

    Another consideration proves thisj Custer and his men were found in such
position, with such separation and with such disorder that it proves that
whatever resistance they mar-e, brave and heroic as it was, was in the nrature
of a defense and not of an attack. Competent judtoes have shown, not merely
that the strugEle could not have lasted more than an hoar, but that from
its
very beginning it was hopeless. So far, then, as Fieno is concerned, we hold
that lie was justified by the a? )earances as they presented themselves to
him
at the time he halted in doing what he did; that he was further justified
in this conduct by the result as it afterward declared itself;  that 'fe
showed
no cowardice whatever in the timber, that his retirement from it was not
only
within his discretion as a commanding officer bul was the result of consulta-.
tion with one of his tried and approved officers and endorsed by many of
the
officers of his comunand; but that both on account of the number of the
Indians and the manner in which Cutrtr and his command Were destroyed it
had
no effect whatever upon any other command than his own.
    It has not escaped the attention of the Court that when Benteen came
up
to the point where he afterwards joined fHeno he saw the In(dians still in
the
bottom and that he thought that they were at least eight hundred or nine
hundred in number. Sergt. Culbertson, a most careful witness fixed their
number at about a thousand; Lieut. Varnum said that a great many Indians
re-
niained in the bottom, when he came up winth Benteen; and it is the rtatement
of Lieut0 Ue~udio, who watched them from the timber in which he had remained,
that they did not retire because Steno left the timber but because Benteen
was seen to approach on the other side of the river0  And it is the belief
of Benteen that, althzagh a considerable number left when he approached they
were not only unneeded to destroy Custer and his conLnand, but that they
prompts
lr went cand hid themselves on the right bank of' the river in order to await
Reno if he should march down in the direction of Custer. Benteen, a soldier
in whose judgmnent this Court can place, I think, as much confidence as in
his
courage, declares it to be his belief that Custer and his command were
destroyed before the order that Martin carried had reached him.
    When Reno reached the river he decided, and told one of the witnesses
that
this was no place to halt and reform the men. It was his duty as a cozmmanding
officer to select the new position from which the new struggLle should be
made,
and he accordiingly went to the top of the hill.
    oluch has been said of the manner in which the men followed him. It is
needless for me to say to this court that in no other way than a straggled
way, twin under circwnstances of perfect peace, can a battalion of Cavalry
climb a steep bank. And yet, it was not d,&nnovunlized. Capt. 24oylan
says his
skirmish line was thrown out a few minutes after the command reached the
top
of the hill. Lieuto Hare says the men were scattered on the top of the hill
but were not demoralized, and again he testified to that same effect. And
even Davern said they seemed to be retreating in as good order as could be
expected   It is true that Reno had lost a large straw hat which he wore
in
the timber, but he had not forgotten to tie a handkerchief around his head
for protection, Benteen testified that the command was quiet when he came
up a little time afterward, and Capt. 1'.1cDou;all did not know they had
been
engaged until he talked with the officers after he had deployed his men as
skirmishers,.
    What was Maj. Reno~s conduct? Certainly not that of a coward or he would
not have been in command of his troops; he would not have ridden to meet
Benteen and have returned to go at the head of a body of inen to see if Lieut.
Hodgson was living whose body he found at the river~s edge. Even if he had
been excited he could hardly have been sufficiently so after having been
joined by Benteen, to have fired his pistol as Edgerly thinks he (lid when
he
cane uo sometime after he had been joined by benteen0
    "What now was the duty of Reno? He had had three companies engaged
in
the timber whose ammunition had been largely expended and needed to be re-
placed;  lie had wounded men whorn he could not then leave at the mercy of
the
Indians. He certainly ordered Hare back to the pack train to hurry the