MILITARY LAWYERS. T HERE are things which no man or animal
ought to be called on to do. The world has a right to demand those services of us for which nature or education have fitted us, but its right stops there. That the chariot of Venus should be drawn by doves may be a most poetical idea, but it was hard on the doves. So it was not decent for Lord Elcho to propose that the Lord Chancellor should shoot with the Right Honourable the Speaker for a champagne dinner; and we do not hesitate to say that the Bishops would have just cause of complaint if they were compelled to dance pub- licly for the Primacy, just as the statesmen of Lilliput did for the honours of the blue, green or red string. In all these cases pity is the prevailing emotion of the mind, because the unwonted exercise is forced on reluctant victims. With a swan on terra firma the case is different, and we laugh with- out cruelty, for why did the swan leave the water ? Now, this is a distinction which, in common humanity, ought to be kept in mind, when we contemplate the spectacle of fifteen military veterans acting as judges. Unlike the swan, they arc compelled to leave the water. There they are, ranged round a table, and in a spirit of the bitterest mockery made not only judges of the fact, but of the law. A question is objected to. One man who knew anything of the law of evidence would dispose of the objection in five minutes. The fifteen veterans begin whispering at each other, and it soon appears that half of them cannot comprehend what the objection means. Then they retire, and those that fancy they understand it find that no two of them understand it in the same sense. They decide according to what seems natural justice. Of course the question had a sort of apparent fairness to justify it, and it is admitted wrongly. Half an hour later a similar question is asked, and this time it has no apparent fairness. They begin to have a dim perception that natural justice is a deceitful jade, and retire again. This time Mars invokes Themis, and writes to the Judge-Advocate-General. But the question asked is a general proposition, and Themis abhors committing herself to general propositions. The answer leaves the puzzled soldiers still in the dark, and after another retirement or two they send off a special messenger to depict their troubles and bring back the necessary advice. Of course the public laughs and the lawyers sneer. But what sort of figure would the public cut if, when its turn came to be twelve men in a box, it had no judge to help it along ? And as for the lawyers—perhaps, in these days of volunteering, they are all ready to command a regiment at a moment's notice—but would their sense of the ridiculous conquer their sense of shame and indignation, if some one of our most respected judges, say Mr. Baron Channel, were compelled to mount some pawing charger in his dress wig, and take the command at Aldershot on a field-day? Therefore, however adverse we may be to the system on which courts-martial are conducted, however absurd those tribunals may appear in our eyes, we have none but feelings of sympathy for the gallant judges themselves. A veteran officer, with grey hairs, and the medals on his breast, which prove how well he can serve his country on any suitable field, has a right to expect that he shall not be made a laughing- stock in his old age by setting him to perform duties for which he is altogether unfit. No doubt professional tribunals of all kind are apt to try points of professional etiquette with a professional bias, but on general questions of right and wrong they are as impartial as other courts, and share the common English love of justice and fair play. If, then, we laugh at their clumsy efforts to wield the technical weapons whose use they have never learned, we laugh not at them, but at the system which forces those weapons into their hands. We cannot but think that the duty of serving on a court-martial must be the most irksome, the most thankless duty which a soldier can be called on to discharge.
If ever any body of men showed a patient desire adequately to discharge aright the functions entrusted to them, it is the court-martial which is now sitting at Aldershot. Let us see how far they have succeeded. The first merit of a court of justice is despatch. The cost of keeping all the witnesses hanging about the place is in itself. an enormous burden on the parties. If the President of the tribunal is a man of ex- perience, and understands the law he has to adro,inister, of course he can be trusted to take notes which will be a suffi- cient record of the proceedings. The public, perhaps, is hardly aware that every judge, superior or inferior, takes a note of every atom of relevant evidence that is given in every case he tries, of every legal objection to the reception of evidence, and of every tender of evidence which he refuses to accept. Being able to decide on the instant authoritatively what is relevant and what is not, all this is done without any perceptible delay of the proceedings. The president of a court-martial cannot be trusted to do anything of the sort.
Therefore every question proposed to be put must be reduced to writing, 'ellen it goes to the Judge-Advocate to be copied, then to the prisoner to know if he objects to it, then to the Court to say whether it may be put. Then, at last, it is put. Just imagine such a system introduced into a county court ! The soul shudders at the prospect. The old classical fable of the man who sat so long on one bench that he became a part of it, and when he was pulled at broke short off at the waist, would become an every-day judicial occurrence. The evidence' for the prosecution in the Crawley case has evidently been carefully prepared beforehand by competent lawyers, and irre- levant evidence has been carefully excluded, but it has taken fifteen days to get through it. We do not hesitate to say that any one of the common-law judges would not only have got through it, but written down with his own hand every important syllable of it in three. Another rule expressly adapted to cause delay, and which seems to have been suggested by the genius of pipe-clay him- self, is that which forbids a court-martial to sit a minute after four. The moment the last stroke of the clock goes the legal authority of the Court vanishes like the finery of Cinderella at the stroke of twelve. There is one rule similar in spirit to this which we venture to submit to the considera- tion of the Horse Guards, and that is, that every member of the Court should be compelled to sit with his drawn sword in his hand. It might strike awe. • It may be said that this would be a sham—the swords are not wanted. Are there no other shams in a court- martial ? They pretend to be purely military courts—to recognize no lawyers. By the side of the prisoner in every case sit his counsel and attorney. In every question the prisoner puts, nay in every word he utters, he is but their mouthpiece. The fact is, these military courts are the inheri- tance of a time when standing armies were not, and when the law martial was never administered except during actual war. The Mutiny Act is a comparatively recent invention and up to the time of its enactment a court-martial which ordered a soldier to be flogged during peace would have committed an assault at common law. Now military law is a regular sys- tem of jurisprudence, depending on Acts of Parliament and military usage and to call on ordinary soldiers to administer it is as ridiculous as it would be to take a dozen naval officers at random and to set them to perform the functions of Dr. Lushington in the Court of Admiralty. Again, the law of evidence is a collection of rules, which, like all other rules, sometimes seem to produce some hardship ; but they are such as the experience of lawyers extending over centuries shows them to produce the least hardship. But to administer them it is absolutely necessary to have watched them in practice. No man ever learnt the law of evidence from books alone. The Court knows nothing about these rules, and yet it is obviously necessary, in order to do justice, that it should observe them. The prisoner's counsel, of course, does understand them, and the consequence is, that the Court is at the mercy of every objection which seems to have a legal sound. The fact is, the judges are worse treated than the accused. Clearly he cannot be denied legal assist- ance to tell him when to object, but it is surely down- right cruelty to deny the Court legal assistance to tell it how to decide.
The fact is, maxims of evidence are convenient short ex- pressions used by lawyers to express not only what the words imply, but a whole Mass of exceptions and qualifications, which they know, but the public does not, Whether a ques- tion is admissible depends entirely on the circumstances under which it is put. No rule is clearer than that which excludes statements as to the matters in. dispute made when the pri- soner is not present. I certain conversation, for instance, is said to have taken place between a witness for the prosecu- tion and a third person. Clearly this is no evidence against the prisoner. But if the latter calls this third person as his witness, and he makes statements quite at variance with what he said in this former conversation, it is equally clear that the prosecutor may, on cross-examination, ask, "Have not you told Mr. So-and-so a different story to that which you are telling now ?" The gist of the question is not to show that the previous statement was true, but that the witness does not deserve credit. Yet a grave objection to a question of this kind, which we venture to say would never have been made to a Court competent to decide such a point, or, if made, would have been dismissed in two minutes, has sent those ill-used veterans at Aldershot into a series of retirements and a hope- less state of muddle. Again, the prisoner asked Surgeon Barnett whether his statement that Serjeant-Major Lilley drank was not founded on what he heard from Mrs. Lilley. That question never would have been put in a court of law. It is bad for so many reasons we have not space to enumerate them. The Court, however, thought, we conjecture, that Mrs. Lilley must have known, and that as she was dead there was no other way of finding out her opinion, and they admitted it. The prosecution ask on re-examination, "What did Mrs. Lilley say ? "and the prisoner's counsel objects to the question as introducing hearsay. But who introduced it? Who made Mrs. Lilley, unsworn, a witness against her husband ? Who made words spoken' perhaps, in jest, or imperfectly under- stood by the hearer, the means of destroying that husband's character ? Why, the prisoner. The question, regarded in the abstract, is an improper one, but it is let in. by the prisoner's previous question. If the authority of poor Mrs. Lilley is to be substituted for that of Surgeon Barnett, at least let us know what were the exact words she used. A prisoner cross-examining has great licence, but he cannot introduce half a given circumstance and exclude the rest —he must take his choice, all or none. Again, we say this difficulty would not have detained a competent Court ten minutes. At Aldershot it caused we know not how many adjournments, a letter, and, finally, a special messenger to the fudge-Advocate, and, after all, evidence has been admitted certainly worthless, and which ought to have no weight with the Court whatever. In some measure this difficulty was the consequence of the absurd practice of allowing either aide to postpone the cross-examination or re-examination of witnesses whenever they please. We do not wish to insist on the mis- take which, as we think, the Court committed in permitting this, because it probably proceeded from a notion that the prisoner was under some hardship in not knowing what evidence was to be produced against him. Under all the circumstances, the witnesses having been almost all examined on. the Mhow Court-Martial, the hardship was by no means sufficient to justify a system which has so great a tendency to produce confusion and prolixity. How is any one to know what a witness says who gives half his evidence to-day, a little more to-morrow, and the rest a week hence ?
And now, in justice to the Court at Aldershot, we beg to express our full admission that they have conducted the pro- ceedings before them better than any military court (and the public has had experience of a good many lately) within our recollection. The prosecution' too, has been on the whole well conducted. And, we ask, if this trial has produced such a result as we have depicted, what is to be said of the system of which it is a favourable example ? The plain truth is, it cries aloud for reform, and the main source of the existing mischief is this, that the system makes the judges of the facts also judges of the law, without making any provision that they shall have the necessary legal knowledge. It is not possible that every officer should be even a military lawyer, and clearly officers must continue to be judges of the facts. The conclusion seems to be that a class of military lawyers to act as judges of the law must in some way or other be created.
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