it was Burnett--Burnett of all people.... He had been sent up to find out what had happened. Well, he asked what the h.e.l.l I was doing, and said I was to go on at once.... I said I was going to wait a bit, there was too much of a barrage.... Then he said, very offensively, he couldn"t help that ... my orders were to go on at once.... That annoyed me, and I said I "d see him d.a.m.ned first, and told him if it was so urgent he could take the party up himself if he liked.... But he didn"t, naturally ... no reason why he should.... Then he rang up Philpott and told him that he had seen the officer in charge and some of the party _running down the road--demoralized_. So he had, of course,--he saw me running for the dug-out ... though the joke of it is--the joke of it is ... _he was sheltering there himself_!" And at the enormity of that joke Harry went off into that hideous laughter again. "He said I refused to obey orders, and asked for instructions. Philpott said it was too late now, the stuff had been wanted by midnight.... He told Burnett to put me under arrest ... and come back.
"That"s what happened," he went on, "and I don"t care--only I wish it had been anybody but Burnett--though I suppose he was quite right; but it makes no odds ... I _had_ got the wind-up, and I _had_ failed with the party, and I don"t deny it ... even if I wasn"t really running when he saw me.... One thing I _can_ say--if I did have the wind-up I"ve never had cold feet--till that night.... I"m glad I came out this time if I did fail at the pinch.... Burnett wouldn"t have.... I knew I was done when I came ... and I know I"m done now.
"But I wish you"d just explain it all to Peggy and the people who don"t know."
And that is what I am trying to do.
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 s.p.a.cious 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 d.a.m.ned court-martial."
But all their faces said, "Thank G.o.d, 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 a.s.sistance. Any of them would have told you, "d.a.m.n 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 d.a.m.ned!" 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 d.a.m.ned 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 princ.i.p.al 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 pa.s.sed over; hundreds such have been pa.s.sed 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 const.i.tutionally timid of authority, and he made no great show, in spite of the efforts of the Deputy Judge Advocate, a person supposed to a.s.sist 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 d.a.m.ning. 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 sh.e.l.ling 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 sh.e.l.ling 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 sh.e.l.ling 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 sh.e.l.ling 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."
I wondered if he did see--if he had ever had "too much of it."
Harry said nothing about Burnett; nothing about Philpott; probably it would have done no good. And as he told me afterwards, "The real charge was that I"d lost my nerve--and so I had. And I don"t want to w.a.n.gle out of it like that."