Volume 67 — A LATE CASE OF COURT-MARTIAL.[1]

A LATE CASE OF COURT-MARTIAL.^[1]

“Surely never was so slight a fault visited by so severe a punishment!” Such is the exclamation which will fall from the lips, or pass through the mind, we believe, of every one who shall peruse Mr Warren’s Letter to the Queen on a Late Court-Martial. The reader of that letter will also rise from its perusal with the painful conviction, that, in the awarding of this heavy punishment, a gross violation of one of the most ordinary and fundamental laws of jurisprudence has been committed; and he will probably conclude with Mr Warren, that if this be a fair specimen of the lax manner in which justice is administered in courts-martial, some reform is necessary in their structure, or, at all events, some higher court of appeal ought to be instituted for the revision of their proceedings.

We have read this admirable letter of Mr Warren’s with unusual interest. As a literary performance it well comports with, and sustains the established reputation of its author; but it reflects a high honour upon him of another and loftier description than that which springs from literary excellence. It shows him in the light of a warmhearted, zealous champion of one whom he believes, and with every appearance of reason, to be an oppressed and injured man. He had assisted Captain Douglas at his trial before the court-martial, on which he now comments, as his legal adviser; he had done his duty as counsel for the defendant, so far as such a court admits of the aid or interference of counsel; he had no interest to promote, and no obligation to fulfil, by any further advocacy of his cause. Captain Douglas had been condemned; the great authorities of the Horse Guards had sanctioned and confirmed the sentence: a cautious man, and a lover of his ease, would here have parted company. He would have shaken his mournful client by the hand, and, with some cold unmeaning words of condolence, have left him with that troop of summer friends, who have, no doubt, by this time, found him a most uncompanionable man. The world was now against him; to volunteer his defence was to oppose constituted authorities; it was to side with weakness against power—with defeat against triumph. It was to stand side by side with one in adversity—stricken, and condemned. But caution and love of ease are evidently motives that have very little influence on the mind of Mr Warren. As the counsel of Captain Douglas, he had grown warm in his defence; he could not suddenly cool when he saw him prostrate, defeated, and dishonoured. He was convinced of the innocence of his client; he felt persuaded that it was in his power to show to all mankind that that client had been cruelly dealt with—treated with a degree of harshness amounting to injustice. His position of counsel had also given him insight into the whole legal proceedings of this court-martial, which betrayed to his practised eye a palpable infraction of one at least of those essential rules by which every tribunal of justice ought to be governed, or cease to be considered a tribunal of justice. He knew all this, and the truth burnt within him; he could not sit down in silence; he could not at once dismiss his sympathy and indignation—his sympathy for an injured man, his indignation for the rules of justice violated. He had ceased to be the advocate of Captain Douglas, but he still clung to his cause, for it was the cause, he was persuaded, of truth and justice.

“Only a great and pressing exigency,” he thus explains himself in the eloquent exordium of his letter, “could have induced one of the humblest of your Majesty’s subjects to step forth from his obscurity, and thus publicly and directly address your Majesty. Even had he not known, however, the benignant and equitable temper of his sovereign, a case like the present would have forced him to bring it forward; for the voice of justice is a sublime one, strengthening the feeblest, and elevating the humblest, who, hearing, endeavours to obey it.

“He who has thus ventured to beseech the ear of his sovereign, believes in his conscience that the cause of justice in this country has recently sustained, through a defective system of military jurisprudence, a calamitous defeat.

“An officer, an accomplished gentleman, of ancient and honourable family, in the very flower of his age,^[2] after having devoted thirteen years to the faithful and zealous service of your Majesty in almost every quarter of your world-wide dominions, has been ignominiously expelled from that service, branded as a Liar. He stood on trial before his brother officers with as high vouchers to character, as could have been presented, had it unfortunately been rendered necessary by such a casualty as has befallen him, by any one of themselves. He was, moreover, the eldest son of a general officer who lately descended to his grave with honour, after half a century spent in the service of three of your Majesty’s predecessors; leaving behind him, as his eldest son, the unhappy gentleman to whose case I earnestly implore the attention of your Majesty....

“That gentleman I believe to be, at this moment, one of the most deeply-injured men in your Majesty’s dominions. He has been convicted of misconduct of which he is utterly incapable; and I consider that conviction to be altogether contrary to law and justice, and to have proceeded upon an unconscious violation of cardinal and characteristic rules of British jurisprudence, essential to the safety as well as to the liberties of your Majesty’s subjects. And what has thus happened to Captain Douglas may happen to any other gentleman who is now, or may be hereafter, honoured by bearing the commission of your Majesty. I think myself able to bring forward facts which are incontrovertible, and reasonings which appear, if I may be permitted to say it, conclusive—and that not to myself alone, but to others whose judgment, were it publicly pronounced, would be deemed entitled to the utmost deference—to establish the innocence of one, upon whose brow, nevertheless, stands at this moment, and has stood for eight miserable months, the brand of ‘infamous and scandalous conduct.’”

He then proceeds to say that her Majesty alone has the power to redress the wrong of which he comes forward to complain.

“In the present case, the blighting sentence passed upon Captain Douglas cannot be reviewed in any court of law. It was solemnly decided, in your Majesty’s Court of Queen’s Bench, on a late occasion, that it had no power to issue a prohibition to restrain the execution of the sentence of a court-martial, after that sentence had been ratified by the king, and carried into execution. And yet, in the existing state of the law, the unfortunate accused has no means of knowing the sentence which has crushed him, until it has been so ratified, carried into execution, and thus declared therefore irrevocable! And that sentence, too, pronounced by a court of law, bound to proceed according to the law of the land—which law it may have violated in every particular!”

It is hardly necessary to say, that the military law under which our army has been governed, ever since the Revolution, is as completely founded upon the statutes of parliament as any other branch of our jurisprudence. A less technical mode of procedure is recognised as prevailing in courts-martial, than that which regulates our civil or criminal courts. But there is nothing of an arbitrary nature in the sentences they pass. These are determined, so far as this is possible, by the act of parliament. A judge of the bankruptcy court is not more bound by the statute, when he grants or withholds the bankrupt’s certificate, than are the judges of a court-martial when they sentence a fellow-officer to be cashiered. Let it be granted, therefore, that Captain Douglas had so far committed himself, in the course of the events we shall have to record, that it was expedient to bring him before a court-martial. Let this be granted—an opinion, however, from which many will dissent—when there, he claims justice! He is under the protection of the law. He is not to be punished with undue severity; he is not to be punished illegally.

It is probable that Mr Warren will be thought to have been carried a little too far, in his vindication of Captain Douglas’s conduct, by his generous zeal and by the ardour of advocacy. It would be asking too much to require that he should suddenly assume towards his late client the coolness of a quite impartial observer. But whilst his argument is that of an advocate, and is something too much tainted with the logic of the courts of Westminster, his statement of facts is full and impartial. He may be a too zealous advocate, but he is a candid historian. It is hardly necessary to add, that, whenever occasion legitimately permits, he is a very pleasant and graphic historian.

We do not intend that our account of this case should be a substitute for the perusal of Mr Warren’s pamphlet; we desire rather to prompt to such a perusal. It is far, therefore, from our design to enter upon all the topics it discusses. But the case is one to which, on public grounds, we would cheerfully assist in calling public attention. In doing so we shall endeavour, in the first place, to state, with perfect impartiality, the real and sole offence, or fault, or error, of which it seems to us Captain Douglas can be justly accused; and, in the second place, to show with what illegal severity this offence has been visited. On the first of these topics, we shall, perhaps, be in some slight degree at variance with our author; on the second, we shall fully accord with him in his main and leading argument: for we think there cannot be a doubt that the judgment of this court-martial is vitiated—not by any merely technical error, but by an error affecting the very justice of the sentence—by no less an error than the finding a man guilty of an offence of a certain degree of guilt, and condemning him to a punishment expressly and solely awarded to an offence of a far greater degree of criminality—finding him, in short, guilty of the crime A, and inflicting the penalty decreed only to the crime B.

The life of military men in time of peace presents, as we catch a glimpse of it here, no very attractive picture. Captain Douglas in barracks at Longy, in the island of Alderney, with one subaltern, Ensign Parker, is commanding his detachment. Lieutenant-Colonel Le Mesurier is commanding at Alderney, under the title of Town Major. Between these rival potentates disputes arise as to their respective jurisdictions. Instead of companionship, assistance, co-operation, there is only mutual repulsion, mutual hostility.

In this cheerless position of affairs, Captain Douglas “went one day—on Friday the 5th January—about twelve o’clock, for a little amusement, to practise pistol-firing, at a spot near the Frying-Pan Battery, as it is called, which was at a distance of two or three hundred yards from the barracks where he resided. This happened to be the first and only time of his using firearms during his stay in the island. No one but himself, indeed, knew even the fact of his possessing firearms. He ordered his servant Riley to procure some potatoes, and to follow him with them, and the pistol-case, (which, however, Riley did not know to be such, nor for what purpose the potatoes were required,) to the Frying-Pan Battery.”

These circumstances are mentioned to account for the scanty testimony which Riley afterwards gave; it being supposed that he had withheld evidence to serve the interest of his master. And certainly it is a little difficult to believe that Patrick Riley, who was a soldier as well as the servant of Captain Douglas, did not know what the pistol-case contained, or for what purpose he carried it and the two potatoes to the battery. We continue the narrative in the words of Mr Warren, which we should be very unwise not to adopt, wherever it is in our power to do so.

“Captain Douglas proceeded to make a target in the wall opposite, which faced the sea—by putting a potato into the centre of an open piece of newspaper, and then thrusting it into a crevice in the wall. This he did to make the mark at which he intended to aim more distinctly visible. He had selected this particular spot for his practice because it was retired and safe. It was entirely hid from the view of the sentry, or any of the men on guard at the barracks.... After firing about twenty or thirty shots, every one of them at the target in question—standing all the while with his back to the sea, and against the rampart, and at which stood the pistol-case and potatoes—he saw Mr Parker approaching. It was a few minutes before one o’clock when he got there. Having fired two shots, both at the same target at which Captain Douglas had been shooting, he went down by a somewhat precipitous descent to the beach, which lay about forty feet immediately below them, accompanied by his dog—intending to amuse himself for a few minutes by throwing stones into the sea, and sending his dog after them; and also desirous of ascertaining whether a hole, which had caught his eye in descending, was that of a rabbit or a rat.”

Amusements were scarce at Alderney.

“Neither Captain Douglas nor Mr Parker’s attention was called to the circumstance of their harmless pistol practice, on the 5th January, till about three or four o’clock on the ensuing Monday afternoon—the 8th January. During the interval, Captain Henderson had arrived from Guernsey; and he, Mr Parker, and Captain Douglas were walking together towards the town, when they met Mr Bains, (a medical gentleman.) After the ordinary salutations, Captain Douglas asked him, ‘What news was going on in the town?’ To which Mr Bains answered, laughing, ‘Nothing new, since your sport with the bulls of Bashan at Longy;’ and he proceeded to say, to the surprise of Captain Douglas and Mr Parker, ‘that he understood a bullock had been shot at or near Longy.’ Captain Douglas replied with a smile, ‘You surely don’t mean to say that I am charged with having had anything to do with it?’—‘Indeed you are,’ said Mr Bains—‘and you will find the constable at your quarters about it, on your return! But it is true, is it not, that you and Parker were ball firing there?’—‘Yes, we were practising,’ replied Captain Douglas unhesitatingly; ‘but I know nothing about the bullock.’ After some other observations, Mr Bains, who knew the position in which Colonel Le Mesurier and Captain Douglas stood towards each other, said with a smile, ‘Colonel Le Mesurier has gone up to look at the bullock.’ To this observation Captain Douglas made a brief sarcastic answer; and shortly afterwards Mr Bains left them.

“The three officers, after continuing their walk for some time longer, separated, towards five o’clock. Captain Henderson went to Corblets barracks, to dress for dinner, both he and Mr Parker being engaged to dine that evening with Captain Douglas; who, with Mr Parker, walked towards Longy, expecting to meet with the constable spoken of by Mr Bains. As they went, they conversed on the subject of his communication, remarking how oddly circumstances seemed to favour the notion that, if a bullock had really been shot, it must have been by them; and they also adverted to the fact of Colonel Le Mesurier having already become acquainted with the matter, and what could have been his object in going to see the carcase of the animal. After some consideration they agreed that it would be better, under the circumstances, not to admit the fact of their having been firing, but leave it to be proved by those who seemed disposed to charge them with having shot the bullock.”

Here was the fatal error. In this resolution, and the acting on it, lies the whole moral offence, fault, or delinquency of Captain Douglas. Not to admit a fact, when questioned on it, is so close upon a denial of the fact, that no human ingenuity can keep them long separate. His concealment of an act perfectly innocent was construed into a denial of that act: it could not well be otherwise, for an evasive answer, which serves the purpose of concealment, must be understood by the party who receives it as a denial, or it no longer serves the purpose of concealment. Yet an evasive answer of this description is permitted by men of the strictest honour in a thousand instances, and is only visited with moral opprobrium in those cases where there is an imperative claim upon the conscience to tell the whole truth. No such imperative claim can be made out in the present case. We admit, however, that it was an error. The better rule is never to resort to an evasion unless there are very strong reasons for so doing. We admit that the adopting of, and persisting in, this policy, or rather this impolicy, of concealment, was here to some extent blameable. But we can detect no base or dishonourable motive leading to it. The worst motive we can divine, is a certain love of a tortuous policy by which some ingenious persons are afflicted. They like finessing, and will introduce into the common affairs of life, much to their own and other people’s embarrassment, what they would describe as a diplomatic dexterity.

The constable, Renier, on the same afternoon, made his appearance at the house of Captain Douglas. There is much controversy as to the import of the question which he put to Captain Douglas; whether, when he asked him, “If he knew anything about it?”—he referred to the shooting of the bullock, or the firing on the battery. It is plain, from the circumstances of the case, that both these matters were inextricably mixed up in the mind of the constable; for he came to inquire of the shooting of the bullock because of the firing on the battery; and into the firing on the battery, because of the supposed shooting of the bullock. There is no wonder, therefore, that a man, not accustomed to analyse his own ideas, should, in giving his evidence before the court, sometimes state one, and sometimes the other, as the object of his inquiry. But it is equally plain, from the very nature of the case, that whatever was stirring in the mind of the constable, his first question to the Captain would be, whether he knew anything about the death of the bullock. He would never have thought of coming to the barracks to ask an officer whether he had been practising with his pistol, without showing in the first place that he had grounds for making what otherwise would be a very impertinent inquiry. We feel ourselves, therefore, quite justified in adopting here the statement of Captain Douglas. According to that statement, Renier asked him “if he knew anything about shooting the bullock?” He answered “No,” as he well might. For it is to be understood at once, and distinctly, that Captain Douglas had nothing whatever to do with the death of the bullock, and knew nothing about it. But, unfortunately, the dialogue between them did not stop here. It will be remembered that Captain Douglas had made use of a piece of a newspaper, the Times, to form his target. This newspaper bore his own name and address on it. The constable added—“That a Times paper had been found near the spot, with Captain Douglas’s name upon it.” This remark could have reference only to the question—who had been firing on the battery? And to this remark Captain Douglas replied—“Possibly so; there were plenty of his papers about; they went all through the barracks and into the town, and he had five or six a-week.” With this answer the constable departed.

The next day a civil court was held, presided over by Judge Gaudion, to inquire into this affair of the death of the bullock. Captain Douglas was summoned to attend. A number of witnesses were examined, whose testimony it is not necessary for our purpose to enter into. Mr Bisset, the owner of the animal, who had connected its death with the firing heard upon the ramparts, produced a number of flattened bullets, broken percussion caps, and pieces of a newspaper addressed to Captain Douglas, which had been found upon the battery. After the judge had asked Captain Douglas whether he had any knowledge who had shot the bullock, and had received the decisive and truthful answer, that “he had not,” he proceeded—pointing to some pieces of newspaper lying on the table—to put the following question: “Can you account for the Times newspaper to your address having been found in the battery, perforated evidently by ball practice?” To which Captain Douglas answered, “I am not accountable for my papers, as they travel through the barracks and into the town.”

This absurd policy (for so we should characterise it) of concealment is adhered to, and with these unfortunate pieces of the Times newspaper lying before him! His answer is understood as a denial of having been practising with his pistol on the battery, and there are those tell-tale fragments “evidently perforated with ball.” It is inconceivably absurd. He is getting into a scrape, and raising a scandal in the little island of Alderney, for no intelligible motive whatever.

Mr Warren here defends the conduct of his late client on the legal principle or maxim, that no man is bound to criminate himself. He stood there in a court of justice “virtually as an accused party;” the court throws its shield over persons in such a position, cautions them, and would protect them even against their own indiscretion. Captain Douglas was fully justified in availing himself of this well-known privilege—in evading and warding off a question which he could not answer without supplying evidence against himself.

Mr Warren will forgive us if we smiled, for a moment, at this instance of the inveterate habits of the lawyer, overpowering the natural shrewdness and sagacity of the man. This legal argument is manifestly inapplicable, and for this simple reason: in the circumstances of the case, there is nothing sufficiently grave—no impending charge of sufficient magnitude—to induce or warrant, in any reasonable man, a departure from, or a concealment of the truth, or any tampering with his honour. If the evasive statement of Captain Douglas be considered as tantamount to a denial, and if that virtual denial be considered as in some degree dishonourable, there can be no shelter for him in this maxim of law, because the fear of a false accusation of having accidentally shot a bullock, would not be accepted, by men of honour, as an excuse or justification.

If Captain Douglas had really shot the bullock, he would have been still more completely under the shelter of this legal maxim—and his equivocation would have been a ten times more heinous offence.

As Mr Warren repeats this argument more than once, it may be worth while to state, in general terms, wherein its fallacy lies. A person is tried before a court-martial, which partakes of the nature of a court of honour, for a departure from, or a concealment of truth, considered to be dishonourable to a gentleman. It is no sufficient answer to plead the privilege which courts of law throw around a witness, unless you show at the same time that, in his case, such a privilege could be taken advantage of without any derogation to his character as a member of society. A very little reflection will satisfy us that the permission granted by courts of law to the accused party, or to a witness, to deny or withhold the truth, may or may not be a valid excuse in the moral judgment of society—may or may not be such a permission as it would be honourable to accept.

A man is tried for his life on the charge of murder, or high treason. He pleads not guilty. Although he is in fact guilty, the most honourable and fastidious portion of society add nothing to their reprobation of the accused on account of this plea. The code of honour or of moral opinion, and the rule of the court of law, are not at variance.

But nothing is easier than to imagine cases in which they would be at variance, and at variance in all possible degrees, from slight difference to complete opposition. The accused is being tried on a false accusation for murder. Titus is a witness. He can by his evidence establish the innocence of the accused, but in giving that evidence he will reveal his own guilt. The court allows him to be silent where his answer to the question would criminate himself. And here, too, the opinion of society would probably coincide with the rule of the court,—yet not entirely; many would censure the witness, many would excuse, none would cordially approve.

Let us now suppose that Titus is innocent, but, in giving his evidence, he must confess some fact which will excite a strong suspicion against himself. Here the number of those who would justify his silence would greatly diminish. Suppose now that the suspicion which would be raised against him, was of a slight character, one which might be easily removed; suppose that by his evidence alone could the accused be saved from the unjust condemnation that hung over him; add to all this, that the accused and innocent party was the friend of Titus, and had been his benefactor—and now this witness, “not bound to criminate himself,” has become the object of execration to all mankind.

This legal maxim is but one of many rules which courts of law, or the legislature, enact for the better administration of justice,—rules which cannot be so framed as to be strictly consentaneous, or identical, with the rules of morality. One who owes a just debt takes advantage of the forbearance of an indulgent creditor, and pleads the statute of limitations. The court admits the plea, puts it in his mouth, justifies him for the use of it. But the use of it has dishonoured him for life.

To return to our case. Mr Bisset, the owner of the bullock, still associating its death, most erroneously, with the firing heard on the battery, published a newspaper paragraph in the Guernsey Comet, headed DISGRACEFUL AFFAIR! in which suspicion was thrown upon Captain Douglas and Ensign Parker, and which terminated with the offer of “A REWARD OF TWENTY POUNDS, to be paid to any one giving information sufficient to convict the party or parties who were shooting at the Frying-pan Battery on Friday the 5th January, between the hours of twelve and three P.M.

Mr Bisset also laid his complaint before Major-General Bell, the commanding officer at Guernsey. That officer wrote to Captain Douglas, requiring his explanation of the affair. A great part of the letter referred distinctly to this pistol-firing on the battery. Now then, the reader is prepared to say, Captain Douglas will surely lay aside this needless and silly piece of diplomacy, this concealment of a perfectly innocent act, which is only strengthening suspicion against him. If he could permit himself to trifle with Judge Gaudion, and the petty civil court at Alderney, he will not trifle with his superior officer; he will not run the risk here of being thought to equivocate. Nearly a month had now elapsed since the first visit of Constable Renier. Time had been given him to reflect: and Captain Douglas did reflect. Ensign Parker lets fall in his evidence that he wrote two letters in answer to this communication, and pondered some time which he should send. In the one, he frankly avowed having been firing with his pistol on the battery, whilst he utterly denied the accusation of having shot the bullock; in the other, he adhered to his policy of concealment, confined himself to a denial of the main accusation, and left all that part of the letter relating to the firing on the battery virtually unanswered. He pondered which of the two he should send; but the genius of diplomacy prevailed,—he sent the second!

Major-General Bell, as might be expected, was not satisfied with such a reply. He instituted a military Court of Inquiry, consisting of Colonel Le Mesurier, Captain Cockburn, and Captain Clerk, with instructions “to ascertain whether any person or persons, belonging to the garrison, were engaged in firing with ball, within or immediately adjoining Longy Lines, on the day and within the hours specified in several of the documents laid before them.” It was not till the evening of the second day on which this court had sat, that Captain Douglas seems to have had his eyes opened to the perilous manner in which he was compromising himself. On the evening of that day, he wrote a letter to Judge Gaudion, stating the whole and simple truth with regard to this pistol-firing; and the next morning, he repeated the same statement before the military Court of Inquiry. The confession, it seems, came too late to save him from the consequences of his unwise, needless, and pertinacious concealment of an act in itself perfectly innocent. It was thought a case sufficiently grave to bring before a court-martial.^[3]

It will be seen and acknowledged at once, that we have not attempted to screen Captain Douglas from the degree of blame which an impartial judge would throw upon his conduct. If the court-martial had reprimanded Captain Douglas, we should have thought the penalty sufficiently severe, but neither we, nor perhaps others, would have been disposed to dispute the propriety of the sentence, or, at least, to call public attention to the case. But, for this offence, the court has sentenced Captain Douglas to be cashiered!

This sentence—to enter now upon our second topic—is not only cruelly severe, it is illegal, it is unjust. Our readers need not fear that we are about to involve them in the technicalities of jurisprudence. It is no technical matter we have to deal with, but broad principles of justice. Mr Warren has, indeed, raised a class of legal objections against the verdict of the court-martial, grounded on its refusal to admit certain evidence. On these objections we shall not enter. To us it appears that the president of the court exercised his power in this matter, in general, very discreetly. But, on these objections, we wish it to be understood that we give no opinion. We pass at once to what we deem a fatal error in this verdict—an error, not of form, but of substance; an error which constitutes it to be an unjust judgment.

Captain Douglas was tried upon the following charge,—“for conduct unbecoming the character of an officer and a gentleman.” Of such conduct he was found guilty. Now, the article of war under which he was arraigned, and the only one under which his offence, by any fair interpretation, could fall, is the 80th, and runs thus:—“Any officer who shall behave in a scandalous, infamous manner, unbecoming the character of an officer and a gentleman, shall, on conviction thereof before a general court-martial, be CASHIERED.”^[4]

The penalty, under this article, is peremptorily that of cashiering. A less punishment the court is not competent to pronounce. The article has for its express object the removal from the service of officers who are convicted of scandalous and infamous behaviour.

“There is no provision,” says Mr Warren, “in the Articles of War, for the cognisance of unofficer-like and ungentleman-like conduct, divested of a tendency to prejudice good order and military discipline, (so as to bring it within Article 108,) in any degree less than that involving infamy and scandal. In the year 1801, an officer was charged before a General Court-martial with scandalous and infamous conduct, unbecoming the character of an officer and a gentleman. The Court acquitted the prisoner of ‘scandalous and infamous behaviour,’ but considering his conduct, nevertheless, as ‘unbecoming the character of an officer and a gentleman,’ adjudged him to ‘be suspended from rank and pay for six calendar months.’ His Majesty King George III. declared the adjudication irregular, and disapproved the sentence, ‘inasmuch as the Court had acquitted the prisoner of the only imputation which could bring the business as a charge before them—namely, of any scandalous and infamous behaviour in the transaction.’ In another case, which happened in 1814, in India, an officer was tried by General Court-martial, on the charge of ‘scandalous and infamous conduct, unbecoming the character of an officer and a gentleman,’ in two instances. The Court acquitted him of the first, but found him guilty of the criminal acts charged in the second instance; acquitting him, however, of ‘scandalous and infamous conduct, unbecoming the character of an officer and a gentleman.’ The Commander-in-Chief, Earl Moira, declared that ‘he regarded the Court as having returned a verdict of acquittal generally, and directed the officer who had been convicted to return to his duty.’ His lordship observed that ‘the Court, in declaring that the criminal act proved against the prisoner did not come within the description of ‘scandalous, infamous, and unbecoming the character of an officer and a gentleman,’ had divested itself of all power to award punishment, except inasmuch as the acts might be considered to come under the above specific definition.’ In the present case, the Court could not have acquitted of scandalous and infamous conduct, because it was not charged.”

The charge quotes a portion of the very words of the article. But that this portion can be separated from the rest of the sentence, and made to designate a distinct, substantive offence, would be a monstrous supposition. The whole stress, the whole meaning lies in the words “infamous and scandalous;” but because there may be scandalous and infamous conduct, which does not fall under the cognisance of a court-martial, it is added as a further definition, that it must be such misconduct as affects the character of an officer and a gentleman.^[5] The article of war intends to describe such conduct as would make a man scandalous and infamous amongst his fellow-officers.

Suppose it were thought fit to frame similar rules for the medical profession, and one of these declared, “That any one who shall behave in a scandalous and infamous manner unbecoming the character of a physician and a gentleman, shall, on conviction thereof, be expelled from the profession,” would any one in his senses think it sufficient to adopt the last qualifying phrase, “unbecoming the character of a physician and a gentleman,” as descriptive of an offence which, under this rule, would incur an expulsion from the faculty? Why, it might be thought “unbecoming” a physician to break rude and silly jests upon his patients, (as a late celebrated character is accused of doing,) but not for such offences, we presume, would any one imagine that expulsion from the profession was provided.

But we shall be told that the proceedings of a court-martial are not fettered by the same strict rules which preside over the record in a court of law. This is very true. It is sufficient if the offence is substantially indicated. Perhaps it will be argued that these words, “unbecoming of an officer and a gentleman,” must be taken as a part for the whole, and that the charge was essentially for scandalous and infamous behaviour.

If so, the court has placed itself in the following dilemma, from which we do not see any possibility of escape:—Either the charge is to be understood as substantially for scandalous and infamous conduct—and, in that case, who will venture to assert that the evidence supports so heinous an accusation?—who will venture to assert that the concealment or equivocation proved against Captain Douglas was that falsehood, that sort of lie, which stamps a man as scandalous and infamous, and drives him from the society of gentlemen? Or (which is the plain common-sense view of the case) the charge is what it professes to be—for “unbecoming” conduct—it is this charge which is present to the minds of the members of the court-martial—it is on this he is tried, of this which he is convicted; and then, after being found guilty of this all but venial offence, he is visited with the punishment of a far heavier one—for behaviour which would make him scandalous and infamous amongst his brother officers.

We repeat, this is no technical argument—it is gross, palpable injustice—as palpable injustice as if a man were tried for manslaughter, convicted of manslaughter, and hanged for murder!

If we ask why the Court awarded so severe a sentence as cashiering on so trifling an offence, we shall be told that the Court had no power to pass any less sentence than that which is decreed by the article of war. We admit the reason. But surely if the Court was bound to inflict the severe sentence decreed by the article of war, it was bound to convict of the crime specified by that article. The court-martial which tried Captain Douglas was scrupulous in passing the right sentence, was not scrupulous in determining whether the crime had been committed for which alone that sentence is by law awarded.

Mr Warren concludes his “Letter” by some suggestions for the reform of our military law. These appear to us to be worthy of consideration. But legal reforms are grave and intricate matters; we would not give a hasty opinion on them; we would recommend them to the consideration of our jurists, and the whole pamphlet to the perusal of our readers. They will also probably find it far more entertaining than, from our meagre abstract of the case of Captain Douglas, they will expect. There is one subject which occupies a considerable space, and which, to the generality of readers, will form the most attractive portion of the “Letter,” to which we have made no allusion. We refer to a narrative of facts, which show the hostile attitude in which Colonel Le Mesurier and Captain Douglas stood towards each other. It is a little history we could not possibly abridge, and which did not appear to us as absolutely necessary to an intelligible view of the case. This narrative will be read with interest, affording as it does a glimpse into real life, and showing us what very animated contests and controversies a few officers may contrive to while away their time with, even in the dull quiet island of Alderney. It is well told, with graphic but subdued power. Conscious that the author of one of our best and most popular novels would be watched on such an occasion, and readily suspected of employing his art as a consummate narrator, Mr Warren has abstained from producing any startling effects; he has, at least, used no other than that highest art which conceals art. We have left the whole of this portion of the pamphlet fresh and untouched, for the perusal of the reader.

In the account we have given of this really very important case, we have not been able to mention the numerous points on which Mr Warren dwells for the exculpation of his client. We have been compelled to content ourselves with the impression which the whole narrative, after careful and unbiassed perusal, left upon our own minds. We are utterly unable to imagine, for the conduct of Captain Douglas, any worse motive than what we have described as a somewhat too diplomatic taste, as a want of a perfectly straightforward manner of speech. We see in his conduct a very palpable error in judgment, but we are quite at a loss to fix upon anything which deserves to be characterised as dishonourable—anything like such infamous and palpable falsehood as ought to drive a man with disgrace out of the service.

When we turn from the conduct of Captain Douglas to the sentence passed upon it, we are utterly amazed at its egregious disproportion and flagrant injustice. There is an article of war framed for the express purpose of ridding the service of scandalous and infamous persons. In order to bring the case of Captain Douglas under this article, he is first arraigned for “unbecoming conduct,” and by a very severe construction found guilty of this charge; and then these comparatively mild and harmless expressions are found to be equivalent to “scandalous and infamous conduct.” Why, if this be law, if this is a precedent, that article of war should henceforth be read thus,—“Whoever is guilty of unbecoming conduct shall be cashiered.” And what a terrible instrument of injustice such an article of war might be converted into, it is quite unnecessary to insist upon. If any officer should have made himself unpopular at the Horse Guards, or amongst his fellow-officers, no matter by what line of conduct, by being worse or better than the general and approved standard—it would be strange if his enemies could not fasten upon some act they could pronounce “unbecoming,” and thereupon expel him from the service with disgrace and infamy.

279