We must not make a scare-crow of the law,
Setting it up to frighten birds of prey;
And let it keep one shape till custom makes it,
Their perch and not their terror.
—SHAKESPEARE.
The members of a court-martial sit in the double capacity of jurors and judges; as jurors they find the facts, and as judges they award the punishment. Yet their session with closed doors was without the solemn formality that the uninitiated might have supposed to attend a grave deliberation upon a matter of guilt or innocence involving a question of life or death.
No sooner were the doors closed that shut out the "vulgar" crowd, than the "high and mighty" officials immediately fell into easy attitudes, and disengaged conversation upon the weather, the climate, yesterday's dinner at General Cushion's quarters, the claret, the cigars and the Mexican signoritas.
They were presently recalled from this easy chat by the President, a severe disciplinarian, who reminded them rather sharply of the business upon which they had convened.
The officers immediately wheeled themselves around in the chairs, facing the table, and fell into order.
The Judge Advocate seated himself at his detached stand, opened his book, called the attention of the court, and commenced and read over the whole record of the evidence and the proceedings up to this time.
The President then said:
"For my own part, gentlemen, I think this quite a simple matter, requiring but little deliberation. Here is the fact of the offence proved, and here is the law upon that offence clearly defined. Nothing seems to remain for us to do but to bring in a verdict in accordance with the law and the fact."
Several of the elder officers and sterner disciplinarians agreed with the President, who now said:
"I move that the vote be immediately made upon this question."
To this, also, the elder officers assented. And the Judge Advocate was preparing to take the ballot, when one of the younger members arose and said:
"Mr. President and gentlemen, there are mitigating circumstances attending this offence, which, in my opinion, should be duly weighed before making up our ballot."
"Lieutenant Lovel, when your hair has grown white in the service of your country, as mine has, and when your skin is mottled with the scars of a score of well-fought fields, you will find your soft theories corrected by hard experience, and you will know that in the case of a sentinel steeping upon, his post there can be no mitigating circumstances; that nothing can palliate such flagrant and dangerous neglect, involving the safety of the whole army; a crime that martial law and custom have very necessarily made punishable by death," said the President, sternly.
The young lieutenant sat down abashed, under the impression that he had betrayed himself into some act of gross impropriety. This was his first appearance in the character of juror and judge; he was literally unaccustomed to public speaking, and did not hazard a reply.
"Has any other gentleman any views to advance before we proceed to a general ballot?" inquired the President.
Several of the officers whispered together, and then some one replied that there seemed to be no reason why the vote should not be immediately taken.
Herbert Greyson remained perfectly silent. Why he did not speak then, in reply to this adjuration—why, indeed, he had not spoken before, in support of Lieutenant Lovel's views in favor of his friend, I do not know to this day, though I mean to ask him the first time I have the opportunity. Perhaps he wished to "draw the enemy's fire," perhaps he was inclined to dramatic effects; but whatever might have been the motive, he continued silent, offering no obstacle to the immediate taking of the vote.
The Judge Advocate then called the court to order for the taking of the ballot, and proceeded to question the members in turn, commencing with the youngest.
"How say you, Lieutenant Lovel, is the prisoner on trial guilty or not guilty of the offence laid to his charge?"
"Guilty," responded the young officer, as his eyes filled with tears of pity for the other young life against which he had felt obliged to record this vote.
"If that is the opinion of one who seems friendly to him, what will be the votes of the other stern judges?" said Herbert Greyson to himself, in dismay.
"What say you, Lieutenant Adams—is the prisoner guilty or not guilty?" said the Judge Advocate, proceeding with the ballot.
"Guilty!"
"Lieutenant Cragin?"
"Guilty!"
"Lieutenant Evans?"
"Guilty!"
"Lieutenant Goffe?"
"Guilty!"
"Lieutenant Hesse?"
"Guilty!"
"Captain Kingsley?"
"Guilty!"
"Captain McConkey?"
"Guilty!"
"Captain Lucas?"
"Guilty!"
"Captain O'Donnelly?"
"Guilty!"
"Captain Rozencrantz?"
"Guilty!"
"Major Greyson?"
"NOT GUILTY!"
Every officer sprang to his feet and gazed in astonishment, consternation and indignant inquiry upon the renderer of this unprecedented vote.
The President was the first to speak, breaking out with:
"Sir! Major Greyson! your vote, sir, in direct defiance of the fact and the law upon it, is unprecedented, sir, in the whole history of court-martial!"
"I record it as uttered, nevertheless," replied Herbert.
"And your oath, sir! What becomes of your oath as a judge, of this court?"
"I regard my oath in my vote!"
"What, sir?" inquired Captain McConkey, "do you mean to say that you have rendered that vote in accordance with the facts elicited in evidence, as by your oath you were bound to do?"
"Yes."
"How, sir, do you mean to say that the prisoner did not sleep upon his post?"
"Certainly I do not; on the contrary, I grant that he did sleep upon his post, and yet I maintain that in doing so he was not guilty!"
"Major Greyson plays with us," said the President.
"By no means, sir! I never was in more solemn earnest than at present! Your honor, the President and gentlemen judges of the court, as I am not counsel for the prisoner, nor civil officer, nor lawyer, of whose interference courts-martial are proverbially jealous, I beg you will permit me to say a few words in support, or at least, I will say, in explanation of the vote which you have characterized as an opinion in opposition to fact and law, and unprecedented in the whole history of courts-martial."
"Yes, it is! it is!" said General W., shifting uneasily in his seat.
"You heard the defense of the prisoner," continued Herbert; "you heard the narrative of his wrongs and sufferings, to the truth of which his every aspect bore testimony. I will not here express a judgment as to the motives that prompted his superior officers, I will merely advert to the facts themselves, in order to prove that the prisoner, under the circumstances, could not, with his human power, have done otherwise than he did."
"Sir, if the prisoner considered himself wronged by his captain, which is very doubtful, he could have appealed to the Colonel of his Regiment!"
"Sir, the Articles of War accord him that privilege. But is it ever taken advantage of? Is there a case on record where a private soldier ventures to make a dangerous enemy of his immediate superior by complaining of his Captain to his Colonel? Nor in this case would it have been of the least use, inasmuch as this soldier had well-founded reasons for believing the Colonel of his regiment his personal enemy, and the Captain as the instrument of this enmity."
"And you, Major Greyson, do you coincide in the opinion of the prisoner? Do you think that there could have been anything in common between the Colonel of the regiment and the poor private in the ranks, to explain such an equalizing sentiment as enmity?" inquired Captain O'Donnelly.
"I answer distinctly, yes, sir! In the first place, this poor private is a young gentleman of birth and education, the heir of one of the most important estates in Virginia, and the betrothed of one of the most lovely girls in the world. In both these capacities he has stood in the way of Colonel Le Noir, standing between him and the estate on the one hand, and between him and the young lady on the other. He has disappointed Le Noir both in love and ambition. And he has thereby made an enemy of the man who has, besides, the nearest interest in his destruction. Gentlemen, what I say now in the absence of Colonel Le Noir, I am prepared to repeat in his presence, and maintain at the proper time and place."
"But how came this young gentleman of birth and expectations to be found in the ranks?" inquired Captain Rosencrantz.
"How came we to have headstrong sons of wealthy parents, fast young men of fortune, and runaway students from the universities and colleges of the United States in our ranks? In a burst of boyish impatience the youth enlisted. Destiny gave him as the Colonel of his regiment his mortal enemy. Colonel Le Noir found in Captain Zuten a ready instrument for his malignity. And between them both they have done all that could possibly be effected to defeat the good fortune and insure the destruction of Traverse Rocke. And I repeat, gentlemen, that what I feel constrained to affirm here in the absence of those officers, I shall assuredly reassert and maintain in their presence, upon the proper occasion. In fact I shall bring formal charges against Colonel Le Noir and Captain Zuten, of conduct unworthy of officers and gentlemen!"
"But it seems to me that this is not directly to the point at issue," said Captain Kingsley.
"On the contrary, sir, it is the point, the whole point, and only point, as you shall presently see by attending to the facts that I shall recall to your memory. You and all present must, then, see that there was a deliberate purpose to effect the ruin of this young man. He is accused of having been found sleeping on his post, the penalty of which, in time of war, is death. Now listen to the history of the days that preceded his fault, and tell me if human nature could have withstood the trial?"
"Sunday night was the last of repose to the prisoner until Friday morning, when he was found asleep on his post."
"Monday night he was sent with the reconnoitering party to Casa-de-Mata."
"Tuesday he was sent with the officer that carried our General's expostulation to Santa Anna. At night he was put on guard."
"Wednesday he was sent with another party to protect a band of emigrants crossing the marshes. At night he was sent with still another party to reconnoiter Molina-del-Rey."
"Thursday he was sent in attendance upon the officer that carried despatches to General Quitman, and did not return until after midnight, when, thoroughly worn out, driven indeed to the extreme degree of mortal endurance, he was again on a sultry, oppressive night, in a still, solitary place, set on guard where a few hours later he was found asleep upon his post—by whom? The Colonel of his regiment and the Captain of his company, who seemed bent upon his ruin—as I hold myself bound to establish before another court-martial."
"This result had been intended from the first! If five nights' loss of sleep would not have effected this, fifteen probably would; if fifteen would not, thirty would; or if thirty wouldn't sixty would!—and all this Captain Zuten had the power to enforce until his doomed victim should fall into the hands of the provost-marshal, and into the arms of death!"
"And now, gentlemen, in view of all these circumstances, I ask you—was Traverse Rocke guilty of wilful neglect of duty in dropping asleep on his post? And I move for a reconsideration, and a new ballot!"
"Such a thing is without precedent, sir! These mitigating circumstances may be brought to bear on the Commander-in-Chief, and may be embodied in a recommendation to mercy! They should have no weight in the finding of the verdict," said the President, "which should be in accordance with the fact and the law."
"And with justice and humanity! to find a verdict against this young man would be to place an unmerited brand upon his spotless name, that no after clemency of the Executive could wipe out! Gentlemen, will you do this! No! I am sure that you will not! And again I move for a new ballot!"
"I second the motion!" said Lieutenant Lovel, rising quite encouraged to believe in his own first instincts, which had been so favorable.
"Gentlemen," said the President sternly, "this thing is without precedent! In all the annals of courts-martial, without precedent!"
"Then, if there is no such precedent, it is quite time that such a one were established, so that the iron car of literal law should not always roll over and crush justice! Gentlemen, shall we have a new ballot?"
"Yes! yes! yes!" were the answers.
"It is irregular! It is illegal! It is unprecedented! A new ballot? Never heard of such a thing in forty years of military life! Lord bless my soul, what is the service coming to!"
"A new ballot! a new ballot! a new ballot!" was the unanimous cry.
The President groaned in spirit, and recorded a vow never to forgive Herbert Greyson for this departure from routine.
The new ballot demanded by acclamation had to be held.
The Judge Advocate called the court to order and began anew. The votes were taken as before, commencing with the young lieutenant, who now responded sonorously:
"Not guilty!"
And so it ran around the entire circle.
"Not guilty!" "Not guilty!" "Not guilty!" were the hearty responses of the court.
The acquittal was unanimous. The verdict was recorded.
The doors were then thrown open to the public, and the prisoner called in and publicly discharged from custody.
The court then adjourned.
Traverse Rocke threw himself upon the bosom of his friend, exclaiming in a broken voice:
"I cannot sufficiently thank you! My dear mother and Clara will do that!"
"Nonsense!" said Herbett laughing; "didn't I tell you that the Lord reigns, and the devil is a fool? This is only the beginning of victories!"
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