XII

The Court-Martial was held in an old farm lying just outside the

village. There was a large courtyard where the chickens clucked all day,

and children and cattle roamed unchecked in the spacious midden. The

court-room was unusually suitable to its purpose, being panelled all

round in some dark wood with great black beams under a white-washed

ceiling, high and vaulted, and an open hearth where the dry wood

crackled heartlessly all day. Usually these trials are conducted in the

best bedroom of some estaminet, and the Court sits defensively with a

vast white bed at their backs. But this room was strangely dignified and

legal: only at first Madame persisted in marching through it with

saucepans to the kitchen--all these curious English functions were the

same to her, a Christmas dinner, or a mess-meeting, or the trial of a

soldier for his life.

The Court impressed me rather favourably--a Major-General, and four

others. The Major-General, who was President of the Court, was a square,

fatherly-looking person, with a good moustache, and rather hard blue

eyes. He had many rows of ribbons, so many that as I looked at them from

a dark corner at the back, they seemed like some regiment of coloured

beetles, paraded in close column of companies. All these men were very

excellently groomed: 'groomed' is the right word, for indeed they

suggested a number of well-fed horses; all their skins were bright, and

shiny, and well kept, and the leather of their Sam Brownes, and their

field boots, and jingling spurs, and all their harness were beautiful

and glistening in the firelight. I once went over the royal stables at

Madrid. And when all these glossy creatures jingled heavily up to their

table I was reminded of that. They sat down and pawed the floor

restively with their well-polished hoofs, cursing in their hearts

because they had been brought so far 'to do some damned court-martial.'

But all their faces said, 'Thank God, at least I have had my oats

to-day.'

And there was an atmosphere of greyness about them. The hair of some of

them was splashed with grey; the faces of most of them were weathered

and grey; and one felt that the opinions of all of them were grey, but

not weathered.

For they were just men, according to their views. They would do the

thing conscientiously, and I could not have hoped for a better Court.

But as judges they held the fatal military heresy, that the forms and

procedure of Military Law are the best conceivable machinery for the

discovery of truth. It was not their fault; they had lived with it from

their youth. And since it is really a form of conceit, the heresy had

this extension, that they themselves, and men like them, blunt, honest,

straightforward men, were the best conceivable ministers for the

discovery of truth--and they needed no assistance. Any of them would

have told you, 'Damn it, sir, there's nothing fairer to the prisoner

than a Field General Court-Martial'; and if you read the books or

witness the trial of a soldier for some simple 'crime,' you will agree.

But given a complex case, where testimony is at all doubtful, where

there are cross-currents and hidden animosities, the 'blunt, honest' men

are lost.

To begin with, being in their own view all-seeing and all-just, they

consider the Prisoner's Friend to be superfluous: and if he attempts any

genuine advocacy they cannot stomach the sight of him. 'Prisoner's

Friend be damned!' they will tell you, 'the Prosecutor does all that!

and anything he doesn't find out the Court will.' Now the Prosecutor is

indeed charged with the duty of 'bringing out anything in the favour of

the Accused': that is to say, if Private Smith after looting his

neighbour becomes afterwards remorseful and returns his loot to its

owner, the Prosecutor will ask questions to establish the fact. In a

case like Harry's it means practically nothing. The Prosecutor will not

cross-examine a shifty or suspicious witness--dive into his motives--get

at the secret history of the business, first, because it is not his job,

and secondly, because being as a rule only the adjutant of his

battalion, he does not know how.

The Court will not do this, because they do not know anything about the

secret history, and they are incapable of imagining any; because they

believe implicitly that any witness, officer or man (except perhaps the

accused), is a blunt, honest, straightforward man like themselves, and

incapable of deception or concealment.

This is the job of the Prisoner's Friend. Now 'The Book' lays down very

fairly that if he be an officer, or otherwise qualified, Prisoner's

Friend shall have all the rights of defending counsel in a civil court.

In practice, the 'blunt men' often make nothing of this safeguard. Many

courts I have been before had never heard of the provision; many, having

heard of it, refused flatly to recognize it, or insisted that all

questions should be put _through them_. When they do recognize the

right, they are immediately prejudiced against the prisoner if that

right is exercised. Any attempt to discredit or genuinely cross-examine

a witness is regarded as a rather sinister piece of 'cleverness'; and if

the Prisoner's Friend ventures to sum up the evidence in the accused's

favour at the end--it is too often 'that damned lawyer-stuff.' Usually

it is safer for a prisoner to abandon his rights altogether in that

respect.

But that should not be in a case like Harry's. The question of counsel

was vital in his case. I make no definite charges against Philpott and

Burnett. All I say is that it was _unfortunate_ that the two men most

instrumental in bringing Harry to trial should have been the only two

men with whom he had ever had any bitterness during his whole military

career. It was specially unfortunate that Burnett should be the first

and principal accuser, when you remembered that almost the last time

Harry had seen Burnett he had shown courage where Burnett had shown

cowardice, and thus humiliated him. This case could have been passed

over; hundreds such have been passed over, and on their merits, from any

human standpoint, rightly. Why was this one dragged up and sent stinking

to the mandarins? Well, one possible answer was--'Look at the history of

these three men.' And in the light of that history I say that Philpott

and Burnett should have been ruthlessly cross-examined by a really able

man, till the very heart of them both lay bare. Whether the issue would

have been different I don't know, but at least there would have been

some justice on both sides. And it may even be that a trained lawyer

could not only have got at the heart of the matter, but also prevailed

upon the Court not to be prejudiced against him by his getting at it.

For that brings you back to the real trouble. I could have done it

myself and gladly; if any one knew anything about these men, I did. But

if I, acting for Harry, had really cross-examined Burnett, asked him

suddenly what _he_ was doing in that dug-out, and when he hesitated,

suggested that he too was sheltering, and quite rightly, because the

fire was so heavy; or if I brought out the history of that night at

Gallipoli, and suggested that the animosity between the two men might

both explain Harry's conduct in the dug-out, and account for Burnett

having made the charge in the first place, thus throwing some doubt on

the value of his evidence--all that would have been 'cleverness.' And if

I had suggested that Philpott himself, my C.O., might have some slight

spite against the accused, or asked him why he had applied for a

Court-Martial on this case after hushing up so many worse ones, I think

the Court would have become apoplectic with horror at the sacrilege.

Then again it had been fixed that Travers should be Prisoner's Friend;

he knew more about the Papers and the Summary of Evidence, and so on,

than any one (though as the papers had only been sent down the morning

before, he did not know a great deal). So we left it at that. Travers

was a young law student in private life, but constitutionally timid of

authority, and he made no great show, in spite of the efforts of the

Deputy Judge Advocate, a person supposed to assist everybody. But, as I

have said, perhaps it was as well.

For what they thought of as the 'hard facts of the case' were all that

mattered to the Court, and as related by Philpott and Burnett and

Peters, they were pretty damning. That bit about the 'running' was

fatal. It made a great impression. Both the Prosecutor and two of the

Court asked Burnett, 'Are you sure he was _running_?' If he had only

been _walking_ away from the enemy it would have made so much

difference!

Travers did ask Burnett why was he in the dug-out entrance; and it

showed you what a mockery any kind of cross-examination would have been.

In the absence of short-hand writers every question and almost every

answer was written down, word for word, by the Deputy Judge Advocate.

After a question was put there was a lengthy pause while the officer

wrote; then there was some uncertainty and some questions about the

exact form of the question. Had Travers said, 'Why were you in the

dug-out?' or 'Why did you go to the dug-out?' Finally, all being

satisfactorily settled and written down, the witness was allowed to

answer. But by then the shiftiest witness had had time to invent a dozen

suitable answers. No liar could possibly be caught out--no deceiver ever

be detected--under this system. That was 'being fair to the witness.'

Burnett answered, of course, that he had gone there to inquire if the

working-party had been seen.

To do Burnett justice, he did not seem at all happy at having to tell

his tale again. If his original report had really been made under a

sudden impulse of spite and revenge (and, however that may be, he could

certainly have made a very different report), I think perhaps he had not

realized how far the matter would go--had not imagined that it would

come to a Court-Martial, and now regretted it. But it was too late. He

could not eat his words. And that was the devil of it. Burnett might

have made a different report; Philpott could have 'arranged things' with

the Brigade--could have had Harry sent to the Base on the ground of his

record and medical condition, and not have applied for a Court-Martial.

But once those 'hard facts' came before the Court, to be examined under

that procedure, simply as 'hard facts'--an officer ordered up with a

party and important stores; some of the party scattered; officer seen

running, _running_, mind you--in the wrong direction; officer 'shaken'

on the evidence of his men, and refusing to obey an order--it was too

late to wonder whether the case should ever have come there. That was

Philpott's business. _He_ did not seem disturbed. He even

mentioned--casually--that 'there had been a similar incident with this

officer once before, when his conduct with a working-party by no means

satisfied me.' Quite apart from the monstrous misrepresentation of the

thing, the statement was wholly inadmissible at that stage, and the

President stopped him. But that also was too late. It had sunk in....

And so the evidence went slowly on, unshaken--not that it was all

unshakable; no one tried to shake it.

After Philpott came Peters, the N.C.O., a good fellow.

He told the Court what Harry had said about 'going back to wait a bit,'

instead of going straight on when the party collected again.

They asked him, 'Was there any reason why the party should not have gone

on then?'

'Well, sir,' he said, 'the shelling was bad, and we should have had some

casualties, but I daresay we should have got through. I've seen as bad

before.'

Then there was one of the men who had been with Harry, a good fellow,

who hated being there. He told the story of the movements of the party

with the usual broken irrelevances, but by his too obvious wish to help

Harry did him no good. When asked 'in what condition' the officer was,

he said, 'Well, sir, he seemed to have lost his nerve, like ... we all

of us had as far as that goes, the shelling was that 'eavy.' But that

was no defence for Harry.

Harry could either 'make a statement' not on oath, or give evidence on

oath and be cross-examined. He chose the latter--related simply the

movements of the party and himself, and did not deny any of the facts of

which evidence had already been given.

'When you had collected the party under the bank by this corner you

speak of,' said the President, 'why did you not then proceed with the

party?'

'I thought the shelling was too heavy, sir, just then; I thought it

would be better to go back and wait a bit where there was more cover

till the shelling got less....'

'But Sergeant Peters says the party would probably have got through?'

'Yes, sir.'

'In view of the orders you had received, wouldn't it have been better to

go straight on?'

'I don't know, sir--perhaps it would.'

'Then why didn't you do that?'

'At the time, sir, I thought it best to go back and wait.'

'And that was what you were doing when you were seen--er, running to the

dug-out?'

'Yes, sir.'

Well, the Court did not believe it, and I cannot blame them. For I knew

that Harry was not being perfectly ingenuous. I knew that he _could_ not

have gone on....

Yet it was a reasonable story. And if the Court had been able to imagine

themselves in Harry's condition of mind and body, crouching in the wet

dark under that bank, faint with weariness and fear, shaken with those

blinding, tearing concussions, not knowing what they should do, or what

they _could_ do, perhaps they would have said in their hearts, 'I will

believe that story.' But they could not imagine it. For they were

naturally stout-hearted men, and they had not seen too much war. They

were not young enough.

And, indeed, it was not their business to imagine that....

Another of the Court asked: 'Is it true to say, as Private Mallins said,

that you had--ah--lost your nerve?'

'Well, sir, I had the wind-up pretty badly; one usually does at that

corner--and I've had too much of it.'

'I see.'