“But we have positive evidence in the form of an affidavit of the last witness who heard the two officers in conversation together on the night before their commands separated, and it is conclusive on the point at issue. This evidence is that General Terry returned to General Custer’s tent,[[115]] after giving him the final order, to say to him that on coming up to the Indians he would have to use his own discretion and do what he thought best. This conversation occurred at the mouth of the Rosebud, and the exact words of General Terry, as quoted by the witness, are:
“’Custer, I do not know what to say for the last.’
“Custer replied: ‘Say what you want to say.’
“Terry then said: ‘Use your own judgment, and do what you think best if you strike the trail; and, whatever you do, Custer, hold on to your wounded.’
“This was a most reasonable conversation for the two officers under the circumstances. One had won great distinction as a general in the Civil War; was an able lawyer and department commander, yet entirely without experience in Indian campaigns. The other had won great distinction as one of the most gallant and skilful division commanders of cavalry during the war, commanding one of the most successful divisions of mounted troops; he had years of experience on the plains and in handling troops in that remote country, and he had fought several sharp engagements with hostile Indians.”
If General Terry spoke such words to General Custer the last thing before Custer’s departure, those remarks have a very important, almost a decisive, bearing on the matter at issue. The only question then existing would be, how far the verbal order ought to be considered as superseding the written one. It is my opinion that the charge that Custer disobeyed orders would fall to the ground if the truth of the alleged remarks could be established. By giving him this verbal order, Terry would make Custer an absolutely free agent. The vital importance of establishing this affidavit is therefore obvious.
I call attention to the fact that Terry nowhere refers to this conversation, which it would be incumbent upon a gentleman to declare immediately Custer was charged with disobeying Terry’s written order, and that Terry, in that portion of his report which is quoted by me on page [225], virtually not only fails to exculpate but actually charges that Custer did disobey his order, by saying he did the very thing that he was not expected to do.
To establish this affidavit, I wrote to President Andrews, asking his authority for stating that such an affidavit existed and requesting a copy of it. Here is his reply. I insert it without comment.
The University of Nebraska, Chancellor’s Office,
Lincoln, November 22d, ’03.