Part 8

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.

[Sidenote: 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.

[Sidenote: "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.

XXXI

In the spring of 1864, the battery to which I belonged mutinied--in an entirely proper and soldierlike way. Longstreet had returned, and the Army of Northern Virginia was about to encounter Grant in the most stupendous campaign of the war. We were old soldiers, and we knew what was coming. But as we had no horses to draw our guns, and as the quartermaster's department seemed unable to find horses for us, we were omitted from the orders for the advance into the region of the Wilderness, where the fighting was obviously to begin. We were ordered to Cobham Station, a charming region of verdure-clad hills and brawling streams, where there was no soldiers' work to do and no prospect of anything less ignoble than provost duty.

Against this we revolted, respectfully and loyally. We sent in a protest and petition asking that if horses could not be furnished for our guns, we should be armed with Enfield rifles and permitted to march with our battalion as a sharpshooting support.

The request was granted and from the Wilderness to Petersburg we marched and fought and starved right gallantly, usually managing to have a place between the guns at the points of hottest contest in every action of the campaign.

At Petersburg we found artillery work of a new kind to do. No sooner were the conditions of siege established than our battery, because of its irregularly armed condition, was chosen to work the mortars which then for the first time became a part of the offensive and defensive equipment of the Army of Northern Virginia.

All the fragments of batteries whose ranks had been broken up and whose officers had been killed, wounded, or captured during that campaign of tremendous fighting, were assigned to us for mortar service, so that our numbers were swelled to 250 or 300 men. The number was fluctuating from day to day, as the monotonous murder of siege operations daily depleted our ranks on the one hand while almost daily there were additions made of men from disintegrated commands.

I have no purpose here to write a history of that eight months of siege, during which we were never for one moment out of fire by night or by day, but there is one story that arose out of it which I have a mind to tell.

I had been placed in command of an independent mortar fort, taking my orders directly from General E. P. Alexander--Longstreet's chief of artillery--and reporting to nobody else.

Infantry officers from the lines in front--colonels and such--used sometimes to come to my little row of gun-pits and give me orders in utter ignorance of the conditions and limitations of mortar firing. The orders were not binding upon me and, under General Alexander's instructions, I paid no heed to them, wherefore I was often in a state of friction with the intermeddlers. After a little I discovered a short and easy method of dealing with them. There was a Federal fort known to us as the Railroad Iron Battery, whose commanding officer seemed a person very fond of using his guns in an offensive way. He had both mortars and rifled field guns, and with all of them he soon got my range so accurately that all his rifle shells cut my parapet at the moment of exploding, and all his mortar shells fell among my pits with extraordinary precision. In order to preserve the lives of my men I had to take my stand on top of the mound over my magazine whenever he began bombarding me. From that point I watched the course of his mortar shells, and when one of them seemed destined to fall into one of my little gun-pits, I called out the number of the pit and the men in it ran into their bomb-proof till the explosion was over.

In dealing with the annoyance of intruding infantry officers, I took advantage of the Railroad Iron Battery's extraordinary readiness to respond to the smallest attention at my hands. A shell or two hurled in that direction always brought on a condition of things which prompted all visitors to my pits to retreat to a covered way and hasten to keep suddenly remembered engagements on their own lines.

[Sidenote: Gloaming Visitors]

Once my little ruse did not produce the intended effect. It was after sunset of a day late in August. Two officers came out of the gloaming and saluted me politely. They were in fatigue uniforms. That is to say, they wore the light blue trousers that were common to both armies, and white duck fatigue jackets that bore no insignia of rank upon their collars.

At the moment I was slowly bombarding something--I forget what or why--but I remember that I was getting no response. Presently one of my visitors said:

"You seem to be having the shelling all to yourself."

I resented the remark, thinking it a criticism.

"We'll see," I said. Then turning to my brother, who was my second in command, I quietly gave the order:

"Touch up the Railroad Iron Battery, Joe."

Thirty seconds later the storm was in full fury about us, but my visitors did not seem to mind it. Instead of retiring to the covered way, they nonchalantly stood there by my side on the mound of the magazine. Every now and then, between explosions, one of them would ask a question as to the geography of the lines to our right and left.

"What battery is that over there?"

"What is the Federal work that lies in front of it?"

"What is the lay of the land," etc., etc.

Obviously they were officers new to this part of our line and as they offered no criticism upon the work of my guns, and gave me no orders, I put aside the antagonism I had felt, and in all good-fellowship explained the military geography of the region round about.

Meanwhile, Joe had quietly stopped the fire on the Railroad Iron Battery, and little by little that work ceased its activity. Finally my visitors politely bade me good evening and took their leave.

I asked Joe who they were, but he did not know. I inquired of others, but nobody knew. Next morning I asked at General Gracie's headquarters what new troops had been brought to that part of the line, and learned that there had been no changes. There and at General Bushrod Johnson's headquarters I minutely described my visitors, but nobody knew anything about them, and after a few days of futile conjecture I ceased to think of them or their visit.

In July, 1865, the war being over, I took passage on the steamer "Lady Gay," bound from Cairo to New Orleans. There were no women on board, but there was a passenger list of thirty men or so. Some of us were ex-Confederates and some had been Federal soldiers.

[Sidenote: The Outcome of a Strange Story]

The two groups did not mingle. The members of each were polite upon accidental occasion to the members of the other, but they did not fraternize, at least for a time--till something happened.

I was talking one morning with some of my party when suddenly a man from the other group approached as if listening to my voice. Presently he asked:

"Didn't you command a mortar fort at Petersburg?"

I answered that I did, whereupon he asked:

"Do you remember----" and proceeded to outline the incident related above.

"Yes," I answered in astonishment, "but how do you happen to know anything about it?"

"I was one of your visitors on that occasion. I thought I couldn't be mistaken in the voice that commanded, 'Touch up the Railroad Iron Battery, Joe.'"

"But I don't understand. You were a Federal officer, were you not?"

"Yes."

"Then what were you doing there?"

"That is precisely what my friend and I were trying to find out, while you kept us for two hours under a fire of hell from our own batteries."

Then he explained:

"You remember that to the left of your position, half a mile or so away, there lay a swamp. It was utterly impassable when the lines were drawn, and both sides neglected it in throwing up the breastworks. Well, that swamp slowly dried up during the summer, and it left something like a gap in both lines, but the gap was so well covered by the batteries on both sides that neither bothered to extend earthworks across it. My friend and I were in charge of pickets and rifle-pits that day, and we went out to inspect them. Somehow--I don't know how--we got lost on the swamplands, and, losing our bearings, we found ourselves presently within the Confederate lines. To say that we were embarrassed is to put it mildly. We were scared. We didn't know how to get back, and we couldn't even surrender for the reason that we were not in uniform but in fatigue dress, and therefore technically, at least, in disguise. There was nothing about us to show to which army we belonged. As an old soldier, you know what that meant. If we had given ourselves up we should have been hanged as spies caught in disguise within your lines. In our desperate strait we went to you and stood there for an hour or two under the worst fire we ever endured, while we extracted from you the geographical information that enabled us to make our way back to our own lines under cover of darkness."

At that point he grasped my hand warmly and said:

"Tell me, how is Joe? I hope he is 'touching up' something that responds as readily as the Railroad Iron Battery did that evening."

From that hour until we reached New Orleans, four days later, there was no barrier between the two groups of passengers. We fraternized completely. We told stories of our several war experiences that had no touch or trace of antagonism in them.

Incidentally, we exhausted the steamer "Lady Gay's" supplies of champagne and cigars, and when we reached New Orleans we had a dinner together at the St. Charles hotel, no observer of which would have suspected that a few months before we had been doing our best to slaughter each other.

XXXII

[Sidenote: The Beginning of Newspaper Life]

Let me pass hurriedly over the years that immediately followed the end of the war. I went West in search of a living. In Cairo, Illinois, I became counsel and attorney "at law and in fact," for a great banking, mining, steamboating, and mercantile firm, whose widely extending interests covered the whole West and South.

The work was uncongenial and by way of escaping from it, after I had married, I removed to Mississippi and undertook the practice of law there.

That work proved still less to my liking and in the summer of 1870 I abandoned it in the profoundest disgust.

With a wife, one child, a little household furniture, and no money at all, I removed to New York and secured work as a reporter on the Brooklyn _Union_, an afternoon newspaper.

I knew nothing of the business, art, or mystery of newspaper making, and I knew nothing of the city. I find it difficult to imagine a man less well equipped for my new undertaking than I was. But I had an abounding confidence in my ability to learn anything I wanted to learn, and I thought I knew how to express myself lucidly in writing. For the rest I had tireless energy and a good deal of courage of the kind that is sometimes slangily called "cheek." This was made manifest on the first day of my service by the fact that while waiting for a petty news assignment I wrote an editorial article and sent it in to Theodore Tilton, the editor, for use. I had an impulse of general helpfulness which was left unrestrained by my utter ignorance of the distinctions and dignities of a newspaper office. I had a thought which seemed to me to deserve editorial utterance, and with the mistaken idea that I was expected to render all the aid I could in the making of the newspaper, I wrote what I had to say.

Theodore Tilton was a man of very hospitable mind, and he cared little for traditions. He read my article, approved it, and printed it as a leader. Better still, he sent for me and asked me what experience I had had as a newspaper man. I told him I had had none, whereupon he said encouragingly:

"Oh well, it doesn't matter much. I'll have you on the editorial staff soon. In the meantime, learn all you can about the city, and especially about the shams and falsities of its 'Society' with a big 'S.' Study state politics, and equip yourself to comment critically upon such things. And whenever you have an editorial in your mind write it and send it to me."

The _Union_ had been purchased by Mr. Henry C. Bowen, the owner of the New York _Independent_, then the most widely influential periodical of its class in America. Theodore Tilton was the editor of both.

[Sidenote: An Old School Man of Letters]

Theodore Tilton was at the crest of the wave of success at that time, and he took himself and his genius very seriously. Concerning him I shall write more fully a little later on. At present I wish to say only that with all his self-appreciation he had a keen appreciation of other men's abilities, and he sought in every way he could to make them tributary to his own success in whatever he undertook. To that end he had engaged some strong men and women as members of his staff on the _Union_, and among these the most interesting to me was Charles F. Briggs, the "Harry Franco" of an earlier literary time, the associate and partner of Edgar Allan Poe on the _Broadway Journal_, the personal friend or enemy of every literary man of consequence in his time, the associate of George William Curtis and Parke Godwin in the conduct of _Putnam's Monthly_; the coadjutor of Henry J. Raymond on the _Times_, the novelist to whom Lowell dedicated "The Fable for Critics," and whose personal and literary characteristics Lowell set forth with singular aptitude in that poem. In brief, he was in his own person a representative and embodiment of the literary life of what I had always regarded as the golden age of American letters. He talked familiarly of writers who had been to me cloud-haloed demigods, and made men of them to my apprehension.

Let me add that though the literary life of which he had been a part was a turbulent one, beset by jealousies and vexed by quarrels of a bitter personal character, such as would be impossible among men of letters in our time of more gracious manners, I never knew him to say an unjust thing about any of the men he had known, or to withhold a just measure of appreciation from the work of those with whom he had most bitterly quarreled.

Perhaps no man among Poe's contemporaries had juster reason to feel bitterness toward the poet's memory than had Mr. Briggs. Yet during my intimacy with him, extending over many years, I never heard him say an unkind word of Poe. On the other hand, I never knew him to fail to contradict upon occasion and in his dogmatic fashion--which was somehow very convincing--any of the prevalent misapprehensions as to Poe's character and life which might be mentioned in his presence.

It was not that he was a meekly forgiving person, for he was, on the contrary, pugnacious in an unusual degree. But the dominant quality of his character was a love of truth and justice. Concerning Poe and the supposed immorality of his life, he once said to me, in words that I am sure I remember accurately because of the impression they made on my mind:

"He was not immoral at all in his personal life or in his work. He was merely _un_moral. He had no perception of the difference between right and wrong in the moral sense of those words. His conscience was altogether artistic. If you had told him you had killed a man who stood annoyingly in the way of your purposes, he would have thought none the worse of you for it. He would have reflected that the man ought not to have put himself in your way. But if you had been guilty of putting forth a false quantity in verse, he would have held you to be a monster for whom no conceivable punishment could be adequate."