XXX
Left Behind
At the end of the campaign of 1863 we found ourselves unhorsed. We had guns that we knew how to use, and caissons full of ammunition, but we had no horses to draw either the guns or the caissons. So when Longstreet was ordered south to bear a part in the campaign of Chickamauga, we were left behind. After a time, during which we were like the dog in the express car who had "chawed up his tag," we were assigned for the winter to General Lindsay Walker's command—the artillery of A. P. Hill's corps.
We belonged to none of the battalions there, and therefore had no field officers through whom to apply for decent treatment. For thirteen wintry days we lay at Lindsay's Turnout, with no rations except a meager dole of cornmeal. Then one day a yoke of commissary oxen, starved into a condition of hopeless anemia, became stalled in the mud near our camp. By some hook or crook we managed to buy those wrecks of what had once been oxen. We butchered them, and after twenty-four or thirty-six hours of continual stewing, we had meat again.
Belonging to no battalion in the corps to which we were attached, we were a battery "with no rights that anybody was bound to respect," and presently the fact was emphasized. We were appointed to be the provost company of the corps. That is to say, we had to build guardhouses and do all the duties incident to the care of military prisoners.
The arrangement brought welcome occupation to me. As Sergeant-Major I had the executive management of the military prisons and of everything pertaining to them. As a lawyer who could charge no fees without a breach of military etiquette, I was called upon to defend, before the courts-martial, all the more desperate criminals under our care. These included murderers, malingerers, robbers, deserters, and men guilty of all the other crimes possible in that time and country. They included no assailants of women. I would not have defended such in any case, and had there been such our sentinels would have made quick work of their disposal.
A Gratuitous Law Practice
The rest, as I was convinced, were guilty, every man of them. But equally I was convinced that a court-martial, if left to deal with them in its own way, would condemn them whether guilty or not. To a court-martial, as a rule, the accusation—in the case of a private soldier—is conclusive and final. If not, then a very little evidence—admissible or not—is sufficient to confirm it. It is the sole function of counsel before a court-martial to do the very little he can to secure a reasonably fair trial, to persuade the officers constituting the court that there is a difference between admissible evidence and testimony that should not be received at all, and finally, to put in a written plea at the end which may direct the attention of the reviewing officers higher up to any unfairness or injustice done in the course of the trial. Theoretically a court-martial is bound by the accepted rules of evidence and by all other laws relating to the conduct of criminal trials; but practically the court-martial, in time of war at least, is bound by nothing. It is a tribunal organized to convict, and its proceedings closely resemble those of a vigilance committee.
But the proceedings of every court-martial must be reduced to writing and approved or disapproved by authorities "higher up." Sometimes those authorities higher up have some glimmering notion of law and justice, and it is in reliance upon that chance that lawyers chiefly depend in defending men before courts-martial.
But no man is entitled to counsel before a court-martial. It is only on sufferance that the counsel can appear at all, and he is liable to peremptory dismissal at any moment during the trial.
It was under these conditions that I undertook the defense of
Tom Collins
Tom was an old jailbird. He had been pardoned out of the Virginia penitentiary on condition that he would enlist—for his age was one year greater, according to his account of it, than that at which the conscription law lost its force. Tom had been a trifle less than two months in service when he was caught trying to desert to the enemy. Conviction on such a charge at that period of the war meant death.
In response to a humble request I was permitted to appear before the court-martial as Tom Collins's counsel. My intrusion was somewhat resented as a thing that tended to delay in a perfectly clear case, when the court had a world of business before it, and my request was very grudgingly granted.
I managed, unluckily, to antagonize the court still further at the very outset. I found that Tom Collins's captain—who had preferred the charges against him—was a member of the court that was to try him. Against that indecency I protested, and in doing so perhaps I used stronger language than was advisable. The officer concerned, flushed and angry, asked me if I meant to impugn his honor and integrity. I answered, in hot blood:
"That depends upon whether you continue to sit as judge in a case in which you are the accuser, or whether you have the decency to retire from the court until the hearing in this case is ended."
"Are you a man responsible for his words?" he flashed back in reply.
"Entirely so," I answered. "When this thing is over I will afford you any opportunity you like, captain, to avenge your honor and to wreak satisfaction. At present I have a duty to do toward my client, and a part of that duty is to insist that you shall withdraw from the court during his trial and not sit as a judge in a case in which you are the accuser. After that my captain or any other officer of the battery to which I belong will act for me and receive any communication you may choose to send."
At this point the presiding officer of the court ordered the room cleared "while the court deliberates."
Half an hour later I was admitted again to the courtroom to hear the deliberate judgment of the court that it was entirely legitimate and proper for Tom's captain to sit in his case.
Court Martial Evidence
Then we proceeded with the trial. The proof was positive that Tom Collins had been caught ten miles in front, endeavoring to make his way into the enemy's lines.
In answer, I called the court's attention to the absence of any proof that Tom Collins was a soldier. There are only three ways in which a man can become a soldier, namely, by voluntary enlistment, by conscription, or by receiving pay. Tom Collins was above the conscription age and therefore not a conscript. He had not been two months in service, and by his captain's admission, had not received soldier's pay. There remained only voluntary enlistment, and, I pointed out, there was no proof of that before the court.
Thereupon the room was cleared again for consultation, and a little later the court adjourned till the next morning.
When it reassembled the judge advocate triumphantly presented a telegram from Governor Letcher, in answer to one sent to him. It read:
"Yes. I pardoned Collins out of penitentiary on condition of enlistment."
Instantly I objected to the reception of the despatch as evidence. There was no proof that it had in fact come from Governor Letcher; it was not made under oath; and finally, the accused man was not confronted by his accuser and permitted to cross-examine him. Clearly that piece of paper was utterly inadmissible as testimony.
The court made short work of these "lawyer's quibbles." It found Tom Collins guilty and condemned him to death.
I secured leave of the court to set forth my contentions in writing so that they might go to the reviewing officers as a part of the proceedings, but I had very little hope of the result. I frankly told Tom that he was to be shot on the next Saturday but one, and that he must make up his mind to his fate.
The good clergyman who acted as chaplain to the military prison then took Tom in hand and endeavored to "prepare him to meet his God." After a while the reverend gentleman came to me with tears of joy in his eyes, to tell me that Tom Collins was "converted"; that never in the course of his ministry had he encountered "a case in which the repentance was completer or more sincere, or a case more clearly showing the acceptance of the sinner by his merciful Saviour."
My theological convictions were distinctly more hazy than those of the clerical gentleman, and my ability to think of Tom Collins as a person saturated with sanctity, was less than his. But I accepted the clergyman's expert opinion as unquestioningly as I could, and Tom Collins confirmed it. When I visited him in the guard-house I found him positively ecstatic in the sunlight of Divine acceptance which illuminated the Valley of the Shadow of Death. When I mentioned the possibility that my plea in his behalf might even yet prove effective, and that the sentence which condemned him to death the next morning might still be revoked, he replied, with apparent sincerity:
"Oh, I hope not! For then I must wait before entering into joy! But the Lord's will be done!"
The next morning was the one appointed for Tom Collins's death. His coffin was ready and a shallow grave had been dug to receive his body.
The chaplain and I mounted with him to the cart, and rode with him to the place of execution, where three other men were to die that day. Tom's mood was placidly exultant. And the chaplain alone shed tears in his behalf.
"Death Bed Repentance"
When the place of execution was reached, an adjutant came forward and read three death warrants. Then he held up another paper and read it. It was a formal document from the War Department, sustaining the legal points submitted in Tom Collins's case, disapproving the finding and sentence, and ordering the man formally enlisted and returned to duty.
The chaplain fell into a collapse of uncontrollable weeping. Tom Collins came to his relief with the injunction: "Oh, come, now, old snuffy, cheer up! I'll bet you even money I beat you to Hell yet."
That clergyman afterward confided to me his doubts of "deathbed repentances," at least in the case of habitual criminals.