These remarks are not intended to serve as a foundation for any of those denunciations of the army which were once in fashion. It would be equally false and ungracious to impute to such a body as the officers of the English army a pretence to a puritanical regard for honour coupled with the practice of perjury and conspiracy against any member of their body who might happen, justly or otherwise, to become unpopular. The truth is, that the scandals which sometimes arise at courts-martial prove, not that the level of morality in the army is low, but that military men do not understand the art of determining the differences which arise amongst them in an expeditious manner, and with a minimum of scandal. This is no fault of theirs. The management of trials is an art, like other things, and there are few arts in which the dictates of instructed and uninstructed common sense are more at variance.
It frequently happens that laymen who have never had occasion to turn their attention systematically to the subject of litigation, feel themselves shocked by some real or apparent instance of hardship produced by technical rules. They assert that such rules are mere fancies, invented by persons interested in confusing and puzzling a plain subject, and that if such matters were left to the discretion of men of plain, straightforward good sense, they would be readily settled, and would be found to involve no substantial difficulty at all. This sounds extremely plausible, but it is altogether a mistake, and a very important one. Captain Robertson's court-martial is interesting and instructive to the world at large, principally because it shows that though no one can doubt the experience, the desire to do justice, or the technical knowledge of the members of the court-martial, they formed a very bad tribunal, though according to the common theory just mentioned they ought to have formed a very good one. They permitted themselves to be hampered by no technical rules at all, and inquired into every matter which could be considered as connected, even in the most remote and casual manner, with the principal question under discussion. In a word, they acted exclusively on the dictates of plain common sense, and therefore the result which they brought out is a perfect illustration of the degree in which that excellent quality is competent to regulate complicated technical matters without technical guidance.
A short outline of the evidence given in Captain Robertson's case may make this intelligible. We purposely abstain from expressing any opinion as to the merits of the case, and the degree of credit to be attached to the witnesses, as our object is to observe upon the working of the system of courts-martial, apart from the details of the particular case which has brought the matter under the notice of the public.
On the 17th October, 1860, Captain Robertson was at the Army and Navy Club, and hearing that Colonel Dickson, the trustee of his marriage settlement, was dining there, sent a message, asking to see him. Colonel Dickson refused, and Captain Robertson waited in the Club till Colonel Dickson came out, when he asked him when certain business was to be settled. Colonel Dickson seems to have considered Captain Robertson's manner offensive, and he describes his proceedings in consequence as follows:—"I said, this is no place to speak about business, and I told you before I would have nothing to say to it except through the lawyers. He then insisted on continuing the conversation, and I said, when I'm done with you legally, I'll settle with you personally, and for your cowardly and blackguard conduct to ——, certain persons whom I named. Captain Durant
then passed by where I was; I called to him and said,—' Bear witness to what I say: this is Captain Robertson, 4th Dragoon Guards, and I tell him again, that I'll horsewhip him; when I settle with him legally, I'll horsewhip him.' When I said this, Captain Robertson said, 'Two can play at that,' or words to that effect. I said, 'Very well,' and left the Club."
On the day after this transaction Captain Robertson consulted his friend, Captain Henry, then an officer in his own regiment, as to the course which he should take. There was the widest difference between the accounts which Captain Robertson and Captain Henry gave of the negotiation which followed. It was agreed on both sides that Captain Henry applied for, and that Colonel Dickson refused, an apology; but as to what followed there is a direct contradiction. Captain Robertson says, "I then told him" (Captain Henry) "that the only thing left was to send a challenge to Colonel Dickson; to which he replied, that there was no use in doing so, as Captain Durant had told him that Colonel Dickson would not go out, or have anything to do with me, till he had legally settled with me. I then observed, 'Your decision is that a challenge is not to be sent to Dickson; you perfectly understand that I am ready to do whatever you wish me.' To which Captain Henry replied, 'Yes, it is not the least use until such time as this legal business is settled between you.'" Captain Henry's account is as follows:—"Q. Did you suggest any course of proceeding to the prisoner in the event of Colonel Dickson refusing to apologize? A. I had written to Captain Durant, and on not obtaining an apology by that means, I told him that Colonel Dickson should be called out. Q. What did Captain Robertson then say? A. He spoke in a disparaging manner of Colonel Dickson, and said he would not meet him except he would 'stake,' or 'lodge,' the price of his commission, or some word to that effect." Whatever may have been the reason, whether that which is assigned by Captain Robertson, or that assigned by Captain Henry, it appears that after Colonel Dickson's refusal to apologize no further steps were taken in the matter till the following spring. In the month of March Captain Robertson heard that rumours injurious to his character, in relation to this affair, were in circulation. He accordingly asked a friend, Mr. Owen, to apply to Colonel Dickson on the subject. Mr. Owen said, that he would have no objection if Captain Henry "would give a written statement, proving that Captain Robertson was not in the wrong." Hereupon Captain Henry wrote a letter, dated March 23rd, in which he said, "I beg to state that I most distinctly understood Captain Durant to say . . . that Colonel Dickson would have nothing whatever to do with Captain Robertson in any way whatever until he should have settled some legal transactions then pending between them. In consequence, I considered it quite useless to send a challenge until such time as they could meet without legal impediment. Had that not been my firm conviction, I am bound to say Captain Robertson would at once have proceeded to take immediate steps to demand satisfaction." Having obtained this letter, Mr. Owen applied to Colonel Dickson for an interview on Captain Robertson's business. Colonel Dickson refused to see him, on the treble ground that the whole affair was stale, that Mr. Owen was too young to be employed in such a matter, and that he had some private objections to Mr. Owen, which he declined to specify, and of the existence of which Mr. Owen declared himself to be altogether ignorant. After Colonel Dickson's refusal to see Mr. Owen, Captain Henry wrote another letter to Mr. Owen, in which he used these expressions:—" Seeing Dickson sheltering himself under his legal shield, I did not think it prudent to advise Robertson to proceed to extremities. Were the case mine, now, I should go to Market Harboro' races to-morrow, tell Dickson he is a liar and a coward, and hit him twice, as hard as I could, and in the most public position." Neither in this letter, nor in the letter of March 23rd, is there any sort of allusion to Captain Robertson's having required the price of his commission to be staked before meeting Colonel Dickson, a proposal which Captain Robertson declared he never made at all. This letter was shown by Mr. Owen to Captain Robertson, with the remark that he thought that the course suggested "would be a very foolish proceeding."
So matters remained till May 15, when Colonel Dickson met Colonel Bentinck, who commanded the 4th Dragoons, and told him of the scene at the Club. Colonel Bentinck thereupon called on Captain Robertson for a statement on the subject, in order to ascertain whether he had taken the steps for his own justification, which the honour of the regiment required. Captain Robertson accordingly gave a written account of the affair; Colonel Dickson gave another; and Colonel Bentinck placed them before the General commanding the district, Sir George Wetherall, requesting that a court of inquiry might take place. The answer was, that the court of inquiry could not be granted, as the witnesses were civilians, and could not be forced to attend; indeed, Colonel Dickson refused to do so. In the same letter occurred this expression: "If, however, you" (Colonel Bentinck) "should deem it expedient to prefer charges against Captain Robertson, I will forward them to the Commander-in-Chief." Sir George Wetherall, in his evidence, referred to this passage, and then said, "I assumed he would do so. Q. Colonel Bentinck reported that he would not prefer charges against him? A. Quite so; and then the whole matter ceased." Whatever Colonel Bentinck's reasons may have been for not applying for a court-martial, at this time he did not do so, nor did the matter cease. On the 14th June, Captain Robertson wrote letters to the secretaries of his own and Colonel Dickson's Clubs, which he requested them to post up in the public rooms, giving his version of the scene with Colonel Dickson, and stating, that he did not consider his conduct that "of a gentleman in any sense of the word." He showed a copy of these letters to Colonel Bentinck, and asked him if he thought that enough for the vindication of his character. Colonel Bentinck said he thought the letters useless (in which he was corroborated by the secretaries, who, naturally enough, refused to libel Colonel Dickson for the convenience of Captain Robertson), and suggested that Captain Robertson should have a circular printed and forwarded to every member of each of the Clubs, insulting Colonel Dickson in the broadest manner. This Captain Robertson refused to do. For more than three months after this, no steps were taken towards a court-martial; but according to Captain Robertson, all sorts of indirect n, Jes were employed for the purpose of driving him out of the regiment. He alleged that Colonel Bentinck gave orders that he should have no leave of absence whilst in the regiment; that he caused him to be deprived of the services of the subaltern of his troop on the march from Birmingham to Ireland; that he refused to transmit to the military authorities complaints made by Captain Robertson on these subjects; that he ordered him out of the mess-room; that he gave other orders as to matters of discipline, intended and calculated to degrade and mortify him; and that he was privy to, and sanctioned, the preparation of a document by the other officers of the regiment, reflecting on Captain Robertson's character, and asking for his removal. Several of the incidents charged by Captain Robertson as acts of pressure, were admitted to have taken place, though a different interpretation was put upon them. As to many, however, there was a conflict of evidence so prolonged, obstinate, and complicated, that it is no easy matter to understand all its intricacies. Passing over this for the present, the result at last was, that on the 30th September Colonel Bentinck laid the matter before the Deputy Adjutant General for Ireland (Colonel Brownrigg), who gave Captain Robertson his choice between selling out and being tried by a court-martial. Captain Robertson asked for time to consider, and obtained only a quarter of an hour for that purpose. Colonel Bentinck was present, and went into another room with Captain Robertson during the interval allowed him to make up his mind. Captain Robertson then asked the colonel what he advised him to do? The colonel replied, "I can only give yon the advice which I gave you three months ago, which is, to send in your resignation. If you do so, the matter will be kept quite a secret." Captain Robertson, feeling, according to his account, quite exhausted by what he had undergone in the preceding three months, agreed to resign, asserted, on being asked by Colonel Brownrigg, that this was his unbiassed decision without pressure, and wrote a letter formally asking leave to sell out. In a day or two he changed his mind, and wrote a letter to the military secretary, asking leave to withdraw this application, and saying that he had made it "entirely through intimidation."
The consequence of this letter was, that Captain Robertson was put on his trial on three charges:—
1. For not having submitted the matter of Colonel Dickson's insult to be dealt with by superior military authority, in compliance with the 17th Article of War.
2. For having failed to take the proper lawful steps to vindicate his character.
3. For having stated, in his final letter, that he had submitted his application to retire from the army "entirely through intimidation," knowing that statement to be false.
The trial lasted for the enormous period of twenty-nine days, and resulted in an acquittal as to the first and third, and a conviction as to the second charge, the sentence upon which was, that the prisoner should be cashiered. This finding was not confirmed by the Commander-in-Chief, and the result is, that Captain Robertson now stands acquitted of all the charges brought against him.
As we have already observed, we are concerned rather with the system which this strange trial illustrates, than with the particular merits or demerits of the persons whom it directly affects. The first point connected with it which claims attention is the strangeness of the procedure, and the monstrous length and sluggishness of the trial. This is the age of causes célèbres. We have had enough of them within the last ten years to fill more than one volume of the State Trials; but if we except the Windham case, it would be difficult, if not impossible, to match this court martial for length. It took about as long to get to the bottom of a regimental squabble, as to try for their respective lives, Palmer, Smethurst, Madeleine Smith, and Rush. Tour trials for murder of unexampled length, intricacy, and importance, were satisfactorily disposed of in the time required for a single court-martial. When we look at the way in which the case was conducted, the reason of this is apparent—indeed, the wonder is why the trial should ever have come to an end at all. The following is an analysis of the manner in which the different days were employed;—
| Case for the prosecution . . . . . | 7 | days |
| Defence, and evidence for the prisoner . . . . . | 7½ | " |
| Inquiry whether or not Colonel Bentinck tampered with a witness . . . . . | 1½ | " |
| Witnesses to contradict the defence . . . . . | 5 | " |
| Witnesses to contradict the witnesses who contradicted the defence . . . . . | 2 | " |
| Witnesses to contradict the witnesses to contradict the witnesses who contradicted the defence . . . . . | 2 | " |
| Witnesses to contradict the last-mentioned witness . . . . . | 1 | " |
| Concluding speech of Captain Robertson, who had spoken twice before . . . . . | 1 | " |
| Concluding speech of the prosecutor . . . . . | 1 | " |
| Fragments of days . . . . . | 1 | " |
The contradictions of the witnesses are like the house that Jack built, and the court never seems, from first to last, to have had any rule at all on which they were prepared to act as to what evidence was to be excluded and what admitted; indeed, they excluded at one part of the trial a whole class of evidence which they afterwards admitted, and, it is hardly too much to say, that if one of the fifteen judges had presided over the inquiry, two-thirds of the evidence given would have been rejected as altogether irrelevant to the question at issue; and a similar or larger proportion of the scandal and heart-burning which the case must have produced would have been avoided.
Every one who has had the opportunity of doing so must have observed, that nothing is more difficult than to persuade litigants that it can ever be desirable to exclude any evidence which they in their own minds even associate with the case to be tried, nor is there any part of the ordinary administration of justice which, generally speaking, offends more prejudices than the rigidity with which the line is drawn between what is evidence and what is not. Captain Robertson's court-martial affords a signal proof of the general good sense of the rules which the courts have adopted. Obeying what was, no doubt, a perfectly honest wish to get to the bottom of the subject, and to enable the parties concerned to bring forward the whole of their respective cases, the court allowed the matter to go staggering about, changing its character every moment, so that what was in the first instance a proceeding against Captain Robertson became at last a prosecution of Colonel Bentinck, and the point at issue appeared at length to be, not whether Captain Robertson had resented an insult in the manner required by military law, but whether or not his colonel had tried to bully him out of the regiment for not having fought a duel.
A civil court would have avoided the whole difficulty, by the simple process of attending to one thing at a time. Whether Captain Robertson libelled his regiment or not, in asserting that there was a conspiracy to force him to sell out, was a question which might be decided either way consistently with his conduct in the matter of the insult being either right or wrong. The notion that justice would be better done by lumping the two questions together, and bringing into issue at one and the same time everything which had any sort of reference to the original quarrel, or any of its consequences, is another illustration of the truth of the proverb that the shortest cut is the longest way round.
The rules of evidence and pleading which prevail in the courts of common law have their defects, and involve consequences which are often hard in appearance, and sometimes in reality; but they have at any rate the advantage of producing distinct questions to be tried, and keeping the litigants inflexibly to the very points which are to be so decided. Courts martial, like French criminal trials, are conducted with hardly any reference to such rules, and in both cases the result is the production of enormous scandals, which are perhaps little less injurious to society than the offences which the administration of justice is intended to repress. No doubt the reason why courts-martial pay so little attention to technicalities, is a very natural one. They are, and pique themselves on being, courts of honour. It is their duty to pay attention, not merely to broad questions of fact, but to questions of sentiment. They have to say, not whether A. B. has incurred this or that specific legal liability, but whether under given circumstances he acted like an officer and a gentleman; and in order to arrive at a conclusion on that point, it is necessary, it would be said, to take many things into consideration, which in ordinary lawsuits would be regarded as irrelevant. In order to make out whether a man acted in a particular case like a gentleman, it will generally be necessary to go largely into his motives, and into the question whether he had reasonable grounds to believe particular statements to be true or false. When mere legal liability is in question, the prudence and propriety of a man's conduct are seldom directly in issue. The question is almost always capable of being made to depend on some broad matter of fact, the truth or falsehood and the legal effects of which are altogether independent of its moral bearings.
There is a considerable degree of truth in this argument, but it is by no means the whole truth. One observation upon it is, that though the honourable character and the moral aspects of particular conduct are not frequently the very points in issue at a trial at law, they are constantly involved in the result of such trials. It is not often that a court of law entertains directly the question, Did A. B. act like a gentleman under such and such circumstances? but there are many actions which incidentally decide the question. Actions for libel and slander continually take this form, and there can scarcely be a better illustration of the comparative merits of civil courts and courts-martial than the difference between the ways in which a case of libel and a case of breach of military duty are tried, and the difference between the degrees of confidence with which the public regard the result finally attained. Whatever its faults may be, a trial before a court of law almost always settles the question in the public mind. It is only under the rarest and most special circumstances that the verdict of a jury, obtained by the means which the law prescribes, fails to carry conviction to people in general, and the result is generally obtained with a minimum of scandal, and always in a moderate time.
This general result is obtained only by an inflexible adherence to rules of evidence sanctioned by constant usage and experience; but if any one unaccustomed to the subject were to observe the manner in which these rules work, he could hardly fail to be struck with the number of apparent hard cases which they produced—cases in which evidence is rejected which any uninstructed person would immediately admit. Closer attention would generally show that the hardship was only apparent.
The principal rule by which such exhibitions as took place at Dublin are avoided in courts of common law is, that a witness may in cross-examination be asked questions with the object of shaking his credit, but that the person asking is bound by the answer, and cannot call witnesses to contradict it unless it refers to some part of the matter in issue. For example: a man may be asked whether he was not convicted of felony, but if he denies it, the person who asks the question cannot prove that he has. If he wants to carry the matter farther, he must do so by an indictment for perjury. An illustration will set the salutary effect of thi8 rule in a clearer light.
A man was tried for perjury in having falsely sworn, on the hearing of a case of affiliation, to circumstances which, if true, would have disproved the evidence of the girl as to the paternity of her child. The girl herself was the principal witness against him. On cross-examination, she made a number of statements, some referring to the particular circumstances on which perjury was assigned, and some referring to other transactions. The prisoner was prepared with witnesses to contradict all, or nearly all, her assertions, and offered to call them for that purpose; and the prosecutrix had another set of witnesses ready to contradict them, but as the prisoner was permitted to call those only who contradicted her in reference to the specific occurrences which formed the subject of the indictment, the case was satisfactorily disposed of in two or three hours. If the whole matter had been gone into it would have lasted as many days, for the indictment was only one incident in a complicated quarrel, which divided a country village into two parties, each of which accused the other of perjury and conspiracy in half-a-dozen different instances. If the actors in this matter had been officers in the army, and if the scene of trial had been a court-martial instead of a court of assize, every separate accusation would have been brought out into open day, and bad blood enough would have been engendered to make enemies for life of some ten or twelve families, who had after all little substantial ground for enmity.
It may at first sight appear that this result, however desirable, was obtained at the expense of justice, inasmuch as some of the materials which would have enabled the jury to form an opinion of the credibility of the principal witness were withdrawn from their notice. The answer to this goes deep into the whole subject of the administration of justice, and has a direct special bearing upon the general question of the manner in which courts-martial discharge their duties. One of the first and commonest of the illusions upon the subject which experience dispels is the notion that laws and courts, however constituted, can ever administer what may be called ideal justice. A legal balance, whether held by a lawyer or a soldier, is, and always must be, a rough machine, capable of weighing ordinary considerations in a not unsatisfactory manner, but altogether unsuitable for scientific experiments; and if this is forgotten, the most unsatisfactory results are certain to be produced. No doubt the question, Whether, under particular circumstances, a particular person who deposes to a particular state of facts, is worthy of credit, has a certain degree of relation to every part of the life and character of that person. A man who has not only known another from childhood, but has bestowed upon his character careful and intelligent study for a length of years, would no doubt be able to form an opinion much more likely to be right upon the question whether he told the truth on a particular occasion, than any judge, jury, or court-martial; and if the tribunal could be placed in the same position with reference to every witness called before them, they would be in the best conceivable position for ascertaining the truth of the case; but this is in practice not merely unattainable, but so completely out of question, that no reasonable person acquainted with the principles of the subject would ever think of trying to attain it.
Where there is any conflict of evidence, the judgment given by a tribunal, be it what it may, seldom amounts to anything more than the statement of a more or less reasonable impression produced on the judge's mind. It is never the result of an exhaustive study of one subject, and the attempt to go to the bottom of it ends in every case in complete bewilderment and confusion, the ultimate result being that the court makes a leap in the dark, on grounds far less satisfactory than those which would have been afforded by a more restricted and manageable field of evidence. If any one will read through the evidence given before the Dublin court-martial, and then suppose that he had passed twenty-nine days in listening to it as it was slowly detailed and written down, he must be clear-headed, indeed, if he does not admit that if he had been one of the judges he would have entirely forgotten the greater part of the evidence, and have had most confused notions as to the real bearing and application of the part which he remembered. The simple truth is, that rules of evidence are and ought to be considered as practical expedients suggested by experience for the purpose of bringing questions to be tried within a reasonable compass; that they are rendered necessary by the limited capacity of the powers of attention and understanding; and that tribunals which overrate their own powers of doing justice are sure not only to do injustice to the persons immediately concerned, but to produce all sorts of collateral quarrels and scandals.
It should never be forgotten that trials are like battles or surgical operations. They are almost unqualified misfortunes to all the parties concerned, and ought to be confined within the narrowest possible limits. Men will find themselves much mistaken if they ask more from their fellow-creatures, either in their capacity of judges or in any other capacity, than a rough approximation to what litigants would in general understand by the word justice; and courts of law which attempt to give more than they have got will be sure to find that they take away infinitely more than they ever could have given.
The practical inference from all this as regards courts-martial seems to be, that their proceedings ought to be thrown into a more legal shape. For petty offences against the interior economy of a regiment they may be well suited, and for the purpose of enforcing discipline on a campaign it is of course indispensable that justice should be as prompt and vigorous as-possible, and probably it is essential to discipline that for these purposes the officers of a regiment or an army should have judicial as well as executive authority. General courts-martial, held in time of peace, stand altogether on a different footing. It is impossible to give any reason why they should not be conducted in the same manner as other trials which affect character and property. There can be no better reason why, under such circumstances, military men should be called upon to discharge legal duties of which they know nothing, than why they should be called upon to discharge medical duties. It is quite true that a man does not send for a doctor as often as his children cut their fingers, or want a pill or a powder; and it is also true that if no surgeon is to be had an ignorant person may have to set a dislocated joint, or bandage up a serious wound as well as he can. In the same way it would be absurd to doubt that a petty ofience is quite as likely to be properly disposed of by the officers of a regiment as by a more elaborate tribunal, or to deny that in martial law promptitude and impressiveness are far more important than justice; but it does not follow that a party of officers at Dublin are the proper persons to try what was in effect an exceedingly intricate action for libel, without any effective legal assistance.
It is easy to suggest some of the means by which this defect might be remedied. Granting the importance of preserving a special kind of tribunal for military offences, and of deciding upon them according to the maxims of military experience, there would be little or no real difficulty in drawing the line between the respective shares of arms and the gown in this particular department of affairs. In all criminal trials there are, and from the nature of the case there must be, three distinct functions, which can be discharged by different persons. There is, first, the regulation of the procedure; secondly, the determination as to the guilt of the person accused; and, thirdly, the determination as to the amount of punishment to be inflicted. Of these, the regulation of the procedure is a purely technical matter, and it is as unlikely that people who are not accustomed to it should excel in it, as that they should excel in surgical operations. Familiarity with general rules, and the power of applying them promptly to particular cases, is a gift which never, or hardly ever, comes by nature. No one attains to it without adding constant practice and long study to considerable natural aptitude. In the same way nothing but practice added to skill can give the power of listening to a great mass of evidence, taking in its various bearings, both for and against the proposition which it is directed to prove, and reproducing it fairly for the instruction of those who have to decide upon it. If any one doubts this, let him go to Westminster Hall or to the assizes, and after listening to the summing up of the judges, try to think what he would have said if he had been in their place; or let him read a report of a trial, and try to construct a summing up of his own from it; or, lastly, let him compare the summing up of the ablest chairmen of quarter-sessions, with those of almost any trained lawyer, and he will soon perceive that a good summary of evidence is a work of art, as much as a watch or a steam-engine, and that whilst it is invaluable in the administration of justice, it is to be had only from a small and select number of persons.
As these duties are of the greatest importance, and are capable of being separated easily and completely from the other duties which a court-martial has to discharge, it would surely be a useful and obvious division of labour to have a legal assessor who should act as judge, deciding on his own responsibility all questions as to the admissibility of evidence, and summing up at the conclusion of the case. The military members might find the verdict, and might apportion the punishment as at present, subject to the confirmation of their superiors. Their substantial power would thus remain just as it is at present, and they would be relieved from a duty for which they are obviously altogether unfit. One obvious advantage of this arrangement would be that the proceedings would be incalculably shortened. At present every question and answer has to be reduced to writing, and this, in some measure, accounts for the monstrous length of the proceedings. If they were conducted in the manner suggested, the judge's note would serve every purpose, and the proceedings would be as expeditious as those of an ordinary trial.
It would of course be undesirable to make any arrangement by which the dignity of the military members of the court would suffer. The judge ought to occupy, with respect to them, not so much the position which a judge occupies in relation to a jury, as that which a chairman of quarter sessions occupies in relation to his brother magistrates, or the judge of the Court of Admiralty in relation to the Trinity House officials, who in certain cases sit as assessors. In court he would inevitably play the most conspicuous part, but his summing up, if it were thought desirable, might take the form of a report delivered in private after the court was cleared for the purpose of deliberating.
Another most important amendment would be effected by allowing both the prosecutor and the prisoner to be represented in the ordinary way by counsel and attornies. The present system is that the Judge Advocate, who is not, generally speaking, a lawyer, looks in a loose, irregular manner after the public interest, and also gives legal advice to the court, whilst the prisoner is advised by legal "friends," who are not permitted to take any open part whatever in the proceedings, though they may advise the prisoner as to the questions which he is to ask, and the objections which he is to make, and may write the defence which he, or some military friend for him, reads to the court.
This mode of proceeding amounts to an admission that legal assistance is an advantage in the trial, though it is contrary to the principles of courts-martial to use it in its full extent, and in the most convenient manner. No doubt the reason for this is, that military men of all ranks are excessively jealous of anything like technicality, or subtlety, and that they have an impression that the business of lawyers is to weave plausible webs of sophistry, which they might perhaps not be able to unravel. If this is true, the consequence would surely be that all legal interference whatever with courts-martial should be prevented. The prisoner ought to have no "friends," the court no Judge Advocate. Moreover, if courts-martial are able to administer justice without assistance better than with it, why should not the civil courts imitate their example? Why embarrass the ordinary administration of criminal justice with a machinery which the experience of courts-martial shows to be useless, or even perilous?
The truth is—and the history of courts-martial supplies the strongest evidence of it—that the advantages in respect of promptitude, clearness, and substantial justice are all on the side of professional assistance. A case which would occupy a court-martial for a week, would be disposed of at the Old Bailey in a day. One great reason of this is, that haggling and quibbling, and the introduction of technicalities, is the fault, not of experience, but of ignorance. Let any one go into a county court, and compare the rate at which a case which interests the parties is tried there, with the rate at which it would be tried in Westminster Hall. He will find that an ignorant, ill-educated attorney—in proportion to his ignorance and want of education—will raise more technical points, and get into a greater number of irrelevant altercations with the witnesses and with his antagonist, in a single trial, than any six of the leading counsel at Westminster in a whole term.
It is one of the silliest and most ignorant of all prejudices to suppose that the business of advocates is nothing else but organized lying. [See an Article on the "Morality of Advocacy," Cornhill Magazine, April, 1861.] Legal technicalities, the extent and importance of which, in the present day, are greatly exaggerated, arise from causes which could never apply to the proceedings of courts martial. They will almost invariably be found to owe their existence to some state of things which existed when the law was laid down, but has long since past away, so that the rule, as laid down, is no longer applicable. There are no antiquities in martial law. The questions to be tried are almost always questions of bare fact, and the only legal points which can arise are points of evidence which the courts are already bound to discuss, and which they do discuss and decide, owing to their want of legal knowledge, in a most imperfect and unsatisfactory manner.
It is almost superfluous in the present day to discuss the propriety of allowing counsel to be employed in courts-martial, inasmuch as the question is almost precisely the same in principle as that which was discussed and decided six-and-twenty years ago, when the old practice of forbidding the prisoner's counsel to address the jury in cases of felony in civil courts was abolished. In the second Report of the Criminal Law Commissioners, every argument upon this subject which ingenuity could devise is exhausted, and the Commissioners arrived at the conclusion that the practice then established, ancient as it was, ought to be abolished. Notwithstanding the strong opposition which the proposal, like most other reforms, had to encounter, there is probably no one at the present day who, after the experience of upwards of a quarter of a century, would suggest a return to the former state of things. It may be worth while to mention that in France the prisoner's advocate addresses a conseil de guerre as freely as he would address any other court.
Cornhill Magazine, June 1862.
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