"I record it as uttered, nevertheless," replied Herbert.

"And your oath, sir! What becomes of your oath as a judge of this

court?"

"I regard my oath in my vote!"

"What, sir?" inquired Captain McConkey, "do you mean to say that you

have rendered that vote in accordance with the facts elicited in

evidence, as by your oath you were bound to do?"

"Yes."

"How, sir, do you mean to say that the prisoner did not sleep upon his

post?"

"Certainly I do not; on the contrary, I grant that he did sleep upon

his post, and yet I maintain that in doing so he was not guilty!"

"Major Greyson plays with us," said the President.

"By no means, sir! I never was in more solemn earnest than at present!

Your honor, the President and gentlemen judges of the court, as I am

not counsel for the prisoner, nor civil officer, nor lawyer, of whose

interference courts-martial are proverbially jealous, I beg you will

permit me to say a few words in support, or at least, I will say, in

explanation of the vote which you have characterized as an opinion in

opposition to fact and law, and unprecedented in the whole history of

courts-martial."

"Yes, it is! it is!" said General W., shifting uneasily in his seat.

"You heard the defense of the prisoner," continued Herbert; "you heard

the narrative of his wrongs and sufferings, to the truth of which his

every aspect bore testimony. I will not here express a judgment as to

the motives that prompted his superior officers, I will merely advert

to the facts themselves, in order to prove that the prisoner, under the

circumstances, could not, with his human power, have done otherwise

than he did."

"Sir, if the prisoner considered himself wronged by his captain, which

is very doubtful, he could have appealed to the Colonel of his

Regiment!"

"Sir, the Articles of War accord him that privilege. But is it ever

taken advantage of? Is there a case on record where a private soldier

ventures to make a dangerous enemy of his immediate superior by

complaining of his Captain to his Colonel? Nor in this case would it

have been of the least use, inasmuch as this soldier had well-founded

reasons for believing the Colonel of his regiment his personal enemy,

and the Captain as the instrument of this enmity."

"And you, Major Greyson, do you coincide in the opinion of the

prisoner? Do you think that there could have been anything in common

between the Colonel of the regiment and the poor private in the ranks,

to explain such an equalizing sentiment as enmity?" inquired Captain

O'Donnelly.




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