For the lawyer as well as the soldier, there is an equally pleasant
duty--an equally imperative command. That duty is to shelter the
innocent from injustice and wrong, to protect the weak from
oppression, and to rally at all times and all occasions, when
necessity demands it, to the special defense of those whom nature,
custom, or circumstance may have placed in dependence upon our
strength, honor, and cherishing regard. That command emanates and
reaches each class from the same authoritative and omnipotent
source. It comes from a superior whose right to command none dare
question, and none dare disobey. In this command there is nothing of
that _lex_ _talionis_ which nearly two thousand years ago nailed to the
cross its Divine Author.
"Therefore all things whatsoever ye would that men should do to you,
do ye even so unto them; for this is the law and the prophets."
God has not only given us life, but he has filled the world with
everything to make life desirable; and when we sit down to determine
the taking away of that which we did not give, and which, when
taken away, we cannot restore, we consider a subject the most solemn
and momentous within the range of human thought and human action.
Profoundly impressed with the innocence of our client, we enter upon
the last duty in her case with the heartfelt prayer that her
honorable judges may enjoy the satisfaction of not having a single
doubt left on their minds in granting her an acquittal, either as to
the testimony affecting her, or by the surrounding circumstances of
the case.
The first point that naturally arises in the presentation of the
defense of our client is that which concerns the plea that has been
made to the jurisdiction of the commission to try her--a plea
which by no means implies anything against the intelligence,
fairness, or integrity of the brilliant and distinguished officers
who compose the court, but merely touches the question of the right
of this tribunal, under the authority by which it is convoked. This
branch of her case is left to depend upon the argument already
submitted by her senior counsel, the _grande_ _decus_ _columenque_
of his profession, and which is exhaustive of the subject on which
it treats. Therefore, in proceeding to the discussion of the merits
of the case against her, the jurisdiction of the court, for the sake
of argument, may be taken as conceded.
But, if it be granted that the jurisdiction is complete, the next
preliminary inquiry naturally is as to the principles of evidence by
which the great mass of accumulated facts is to be analyzed and
weighed in the scales of justice and made to bias the minds of her
judges; and it may be here laid down as a _concessum_ in the case,
that we are here in this forum, constrained and concluded by the
same process, in this regard, that would bind and control us in any
other court of civil origin having jurisdiction over a crime such as
is here charged. For it is asserted in all the books that
court-martial must proceed, so far as the acceptance and the
analysis of evidence is concerned, upon precisely those reasonable
rules of evidence which time and experience, _ab_ _antiquo_, surviving
many ages of judicial wisdom, have unalterably fixed as unerring
guides in the administration of the criminal law. Upon this conceded
proposition it is necessary to consume time by the multiplication of
references. We are content with two brief citations from works of
acknowledged authority.