and were engaged under the personal lead of General Hawkins in desperate fighting. Finding that he could not get the Seventy-first forward, General Kent then directed certain of the regular regiments of his two other brigades to march along the trail over and through the Seventy-first until they got to the front, and one after another five regular regiments passed up the trail, the officers and men jeering at the Seventy-first and telling them to come on. Incredible to relate Colonel Downs still made no effort to get his regiment forward, and his Lieutenant-Colonel and Senior Major likewise did nothing. Most of the other officers and of the enlisted men, however, showed a spirit and good will all the more striking because of the contrast with the conduct of their superiors. Some of them joined the regulars, others were led out by their own officers, Colonel Downs and the LieutenantColonel and Senior Major doing nothing to advance and but little to hinder this move. The larger part of the Seventy-first then went up the hill, had men killed and wounded on its summit, entered the blockhouse, supported a piece of artillery which had gotten into trouble, and in short showed that they were of splendid stuff and that save when paralyzed by bad leadership they were as able as they were eager to do honor to the glorious traditions. of the American volunteer service.

But while the bulk of the regiment had thus gone forward, Colonel Downs, Lieutenant-Colonel Smith, and the Senior Major, Whittle, remained behind in the trail, behind the river, with various stragglers and with most of one company, which the colonel had kept with him. Toward nightfall General Kent sent back word by one of the officers of the Seventy-first to Colonel Downs to come forward and

bring up every available man. This order was first delivered to Major Whittle who had at the moment ventured across the river. Instead of obeying it he hurried back and waited until after dark, on the pretense that he desired to see what his Colonel's orders were this, be it remembered, when Major Whittle, according to his own statement, had just been informed that the division commander wished every man at the front. Lieutenant-Colonel Smith meanwhile had gone to the rear where he was reported as sick and did not turn up again at the front for a couple of days.

the Ist.

There was no heavy fighting after

These are the facts. On no possible theory can Colonel Downs' conduct be justified. If his men had behaved badly there would have been a poor excuse for it, but his men did not. And on behalf of Lieutenant-Colonel Smith, it was actually urged by his counsel that the men had behaved badly because they had gone forward to take part in the fight on the hill crest when, the senior field officers, in spite of the repeated commands which the men must all have heard, passed up the line, from or on behalf of General Kent, had refused to lead them. Colonel Downs had failed to take his men through the trail and deploy them at the ford; he failed to take his regiment forward when ordered to do so by word of command passed up the trail from officer to officer; he failed to lead them forward when the regular infantry regiments marched over his own regiment and forward into the fight; he failed even to accompany his men or to follow them, save at a distance, when they finally went forward in battalions and in companies by themselves. He has since resigned.

Major Whittle's case is almost as clear. He was the

only major who did not accompany his battalion when it went forward into the battle, but staid behind in the trail and when informed of General Kent's positive direction, at once to come to the front, he retired to the rear and staid there until after dark when he came forward with Colonel Downs. He, also, has now resigned.

The case of Lieutenant-Colonel Smith is not so sharply cut, yet I think in his case also his neglect of duty is clearly established. His defense is that as Lieutenant-Colonel he had nothing whatever to do so long as the colonel was unwounded and was present. He also states that he did not hear the orders sent up the line to Colonel Downs to move his regiment forward; but this is absolutely impossible, if he was exercising proper vigilance and alertness. These orders were passed up from officer to officer along the line and if the second in command knew his duty at all, and was exercising a very moderate amount of vigilance, it was absolutely impossible that he should not have known. that these orders were issued, and that his colonel was showing the grossest dereliction of duty in not moving forward. After these orders had been issued and disregarded, came the march of the regular regiments forward through the Seventy-first into the fight, and then the forward movement of the Seventy-first itself in companies. and battalions; yet throughout all this time LieutenantColonel Smith staid as ignobly inactive as his chief, making no effort to get forward into the fight or to lead any portion of the men where they might regain for the regiment the reputation which their superior officers were fast losing. It is not safe or wise that such a man should hold high office either in the volunteer army or in the National Guard.

The case of Captain Austin is more puzzling. His own statements before the Court of Inquiry would seem to condemn him beyond redemption as having actually refused to move forward at General Kent's order and having failed to take to his own commander, General Kent's direction that the regiment should go forward. But it appears that Captain Austin was not as grossly derelict in his duty as his words would seem to imply, and that he was largely influenced by the fact that at the time it seemed as if the regiment was going forward. I do not feel like holding to the severest accountability a subordinate officer when the three highest officers of the regiment were exhibiting such misconduct, and I shall merely recommend that Captain Austin be severely reprimanded.

In conclusion I desire to say that after performing the stern and painful duty of showing in its proper light the conduct of the three senior officers of the regiment, it is a source of the most genuine pleasure to turn to the conduct of the bulk of the other officers and of the enlisted men. That under such leadership certain of the other officers and of the enlisted men should not have shown to advantage was inevitable, but the conduct of the great majority as they moved forward in spite of the defection of their proper leaders and stood shoulder to shoulder with the Regulars on the summit, shows that the Seventyfirst New York was composed of men worthy of the ancient renown of the Regiment, of the State, and of the Country; men who wanted only proper leadership to prove themselves equal to the highest demands that could be made upon their courage, their patriotism and their sense of soldierly duty.

THEODORE ROOSEVELT

CERTIFICATION OF THE NECESSITY OF THE PASSAGE OF SENATE BILL No. 1102, TO TAX PUBLIC FRANCHISES AS REAL PROPERTY

STATE OF NEW YORK

Executive Chamber

TO THE LEGISLATURE:

It appearing to my satisfaction that the public interest requires it;

THEREFORE In accordance with the provisions of section fifteen of article three of the Constitution and by virtue of the authority thereby conferred upon me, I do hereby certify to the necessity of the immediate passage of Senate bill number 1102 (Introductory number 205) entitled "An Act to amend the tax law relating to the taxation of public franchises as real property ".

GIVEN under my hand and the Privy Seal of the State at the Capitol in the city of Albany this twenty-seventh day of April in the year of our Lord one thousand eight hundred and ninetynine.

[L S]

By the Governor:

THEODORE ROOSEVELT

WM. J. YOUNGS

Secretary to the Governor