Page:Southern Historical Society Papers volume 27.djvu/281

 The Moniiiixiii in Mosby's Men. 278

erroneous impression he once had of me; of course it equally applies to my men. Some may say the change was due to politics. But his conduct at the surrender when he voluntarily offered us the same parole he had given General Lee, after Stanton had proclaimed me an outlaw, shows that the change came about before the close of the war. The friendship that afterward grew up between us should be viewed with indulgence by Southern people, as it was certainly dis- interested on his part, and hurt no Southern man.

The orders of a superior are no defence to a criminal charge. It is a well settled principle of law that a principal is not responsible for the MALICIOUS act of his agent; the agent incurs a personal lia- bility. So I acquit Sheridan of all responsibility for the deed at Front Royal. I doubt whether he eVer heard of it before he got my letter. If General Lee had ordered me to murder my prisoners, I would not have obeyed him; I would have obeyed a higher law, the most sacred of all laws because it is written on the human heart the great law of nature the law of humanity. I am sure that Major Richards would not have obeyed an order of mine to do a cruel act; if he had he would have been none the less a criminal because he was ordered. Colonel Peters was ordered with his regiment to set fire to Chambersburg; he refused, and was never called to account for it. He was right. Merritt says that Lieutenant McMasters was captured, robbed and shot; none of the other reports mention him. The truth is, McMasters was never a prisoner. He attempted to cut off the retreat of my men when attacked by a division of cavalry. He cut himself off and got killed. My men shot him and rode over him; they had no time to rob him if they had wished to do so; Merrill's whole division was behind and McMasters was in front of them. While Torbert's, Merrill's and Lowell's reports belray ihe consciousness of a crime committed by some one, they do not dis- close who did it. Even admitting thai McMaslers offered to surren- der when killed, there is a vast difference between refusing quarter in the excitement and brevis furor of a cavalry combat and killing in cold blood and under official sanction when the combat is over. Hall, from whom I have quoted, says: "A belligerent, therefore, may only kill those enemies whom he is permitted to atlack while a combat is actually in progress; he may not, as a general rule, refuse quarter." True, but McMaslers was killed during ihe progress of the combat. He may have intended to surrender, but it does not necessarily follow thai my men knew it. They had no time lo take prisoners or parley. They were surrounded by thousands, and their