Part 10 (1/2)

But the proceedings of every court-martial must be reduced to writing and approved or disapproved by authorities ”higher up.” Sometimes those authorities higher up have some glimmering notion of law and justice, and it is in reliance upon that chance that lawyers chiefly depend in defending men before courts-martial.

But no man is ent.i.tled to counsel before a court-martial. It is only on sufferance that the counsel can appear at all, and he is liable to peremptory dismissal at any moment during the trial.

It was under these conditions that I undertook the defense of

TOM COLLINS

Tom was an old jailbird. He had been pardoned out of the Virginia penitentiary on condition that he would enlist--for his age was one year greater, according to his account of it, than that at which the conscription law lost its force. Tom had been a trifle less than two months in service when he was caught trying to desert to the enemy.

Conviction on such a charge at that period of the war meant death.

In response to a humble request I was permitted to appear before the court-martial as Tom Collins's counsel. My intrusion was somewhat resented as a thing that tended to delay in a perfectly clear case, when the court had a world of business before it, and my request was very grudgingly granted.

I managed, unluckily, to antagonize the court still further at the very outset. I found that Tom Collins's captain--who had preferred the charges against him--was a member of the court that was to try him.

Against that indecency I protested, and in doing so perhaps I used stronger language than was advisable. The officer concerned, flushed and angry, asked me if I meant to impugn his honor and integrity.

I answered, in hot blood:

”That depends upon whether you continue to sit as judge in a case in which you are the accuser, or whether you have the decency to retire from the court until the hearing in this case is ended.”

”Are you a man responsible for his words?” he flashed back in reply.

”Entirely so,” I answered. ”When this thing is over I will afford you any opportunity you like, captain, to avenge your honor and to wreak satisfaction. At present I have a duty to do toward my client, and a part of that duty is to insist that you shall withdraw from the court during his trial and not sit as a judge in a case in which you are the accuser. After that my captain or any other officer of the battery to which I belong will act for me and receive any communication you may choose to send.”

At this point the presiding officer of the court ordered the room cleared ”while the court deliberates.”

Half an hour later I was admitted again to the courtroom to hear the deliberate judgment of the court that it was entirely legitimate and proper for Tom's captain to sit in his case.

[Sidenote: Court Martial Evidence]

Then we proceeded with the trial. The proof was positive that Tom Collins had been caught ten miles in front, endeavoring to make his way into the enemy's lines.

In answer, I called the court's attention to the absence of any proof that Tom Collins was a soldier. There are only three ways in which a man can become a soldier, namely, by voluntary enlistment, by conscription, or by receiving pay. Tom Collins was above the conscription age and therefore not a conscript. He had not been two months in service, and by his captain's admission, had not received soldier's pay. There remained only voluntary enlistment, and, I pointed out, there was no proof of that before the court.

Thereupon the room was cleared again for consultation, and a little later the court adjourned till the next morning.

When it rea.s.sembled the judge advocate triumphantly presented a telegram from Governor Letcher, in answer to one sent to him. It read:

”Yes. I pardoned Collins out of penitentiary on condition of enlistment.”

Instantly I objected to the reception of the despatch as evidence. There was no proof that it had in fact come from Governor Letcher; it was not made under oath; and finally, the accused man was not confronted by his accuser and permitted to cross-examine him. Clearly that piece of paper was utterly inadmissible as testimony.

The court made short work of these ”lawyer's quibbles.” It found Tom Collins guilty and condemned him to death.

I secured leave of the court to set forth my contentions in writing so that they might go to the reviewing officers as a part of the proceedings, but I had very little hope of the result. I frankly told Tom that he was to be shot on the next Sat.u.r.day but one, and that he must make up his mind to his fate.

The good clergyman who acted as chaplain to the military prison then took Tom in hand and endeavored to ”prepare him to meet his G.o.d.” After a while the reverend gentleman came to me with tears of joy in his eyes, to tell me that Tom Collins was ”converted”; that never in the course of his ministry had he encountered ”a case in which the repentance was completer or more sincere, or a case more clearly showing the acceptance of the sinner by his merciful Saviour.”

My theological convictions were distinctly more hazy than those of the clerical gentleman, and my ability to think of Tom Collins as a person saturated with sanct.i.ty, was less than his. But I accepted the clergyman's expert opinion as unquestioningly as I could, and Tom Collins confirmed it. When I visited him in the guard-house I found him positively ecstatic in the sunlight of Divine acceptance which illuminated the Valley of the Shadow of Death. When I mentioned the possibility that my plea in his behalf might even yet prove effective, and that the sentence which condemned him to death the next morning might still be revoked, he replied, with apparent sincerity: