The correction was so entered.
“Mr President,” the judge advocate intoned, “all papers that compose the charge have now been read.”
“Sir Home, do you now accept the receipt of these documents on to the court’s records?” the president asked heavily.
“Certainly. I do admit every document referred to in the charge that purports to be written by me, also such as were received by me.”
“Thank you. Then we may go on to—”
“Such as were received by me. This cannot include Documents Three, Four and Five.”
“Pray why not, sir?”
“These Admiralty instructions sent in dispatch by Belle Poule packet were captured by the enemy. Their duplicates, by Lyar cutter, never arrived on station as she did not touch at the Cape. In fine, sir, I cannot be held to account by anything specified therein since I did not receive them.”
Jervis came back instantly: “May it please the court, the dispatches do not form evidence to affect the honourable captain as knowing their contents. They are adduced merely to show to the court the orders issued by the Admiralty in the belief he was still on station.”
The president frowned. “As there is no evidence of the receipt of these orders, of course no charge of disobedience can arise out of them. However, let them be so received.”
Popham smiled wolfishly. “Then for what purpose are they laid before the court, if they are not meant to affect me? I really cannot perceive the object the learned counsel has in view. I do not wish to argue a point of law with the eminent gentleman but I am advised that naught may be entered save it is legally admissible as evidence.”
“Sir! Are you questioning the prerogatives of the court to rule upon a question of law?”
“Sir, I have been asked to accept the entirety of a total of eighteen documents brought forward today when but three were served on me when arrested. There are here papers I have never seen or heard of. I hope the court will feel it natural that I should seek to be fully prepared and therefore grant an adjournment.”
“Sir Home. There are officers here today called away from various stations where they are engaged in the service of their country. Therefore every degree of expedition is desirable. I shall adjourn, and trust you are ready with your defence shortly.”
Bowden was waiting for Kydd after he had braved excited crowds to return to the George.
“Sir, you’ll think it awfully impertinent of me, but—”
“You want to hear about the trial.”
“I do, sir. Everyone’s talking of it and—”
“I’m bound not to speak of proceedings until they be over, Lieutenant.”
“Oh. Well, I do understand then, sir. I’m sorry to have troubled you.”
Kydd relented: all would be made public eventually. “If it was known I’d been speaking to you, I’d be indicted for contempt of court, and you wouldn’t wish that upon me, would you?”
“No, sir.”
“Then we’d better not let it be known. The cards room, one hour.”
“Aye aye, sir.”
They found a pair of winged chairs near the fire, the noisy play at the tables ensuring they could not be heard. Kydd appreciatively sipped the brandy he had demanded as fee for his tale.
“Well, do you know the usual watch and station bill for a court-martial?”
“I’ve never attended one, sir.”
“Now, this one’s nothing like it. It’s held in Gladiator, a paltry new-hulked forty-four-gun fifth rate of the last age, thirty years or more old. Can you conceive of it? Seven admirals, four captains and all the court lackeys, jammed into a great cabin not much bigger than L’Aurore’s?”
Bowden shook his head.
“So they made as though clearing for action—tore down the bulkheads so the bed-place, coach and great cabin were all one.” He smiled ruefully. “Well, of course, witnesses aren’t allowed in the court except when they give their evidence, but through—shall we say?—various means, we did get the drift of what was going on …”
“And?”
“First of all Popham is brought in to hear the charges read, as cool as may be. And I should tell you that the prosecutor is old Jarvie’s—that is to say, Earl St Vincent’s—nephew. And then all kinds of legal backing and filling. By any standard, Popham was a taut hand at the business, dishing Jervis like a good ’un. Not a wise notion to bait such a one, I’m thinking, or debate law with the president of the court.”
Kydd smiled briefly. There was no doubting the man’s courage, or his intelligence.
“Then they read out the prosecution evidence, all of it, and a shocking hill of it there was. I really can’t see how he can tack around it. He did sail for South America without orders, that’s the truth of it, and they’re going to hang him for it.”
“Court will come to order. Sir Home, are you now prepared to defend the charges brought against you?”
“In so far that in the small time allowed me to draw up my defence, I am now ready to answer, yes, sir.”
“Then do so, if you will.”
“If it please the court. Sir, after having devoted the greater part of my life to the service of my king and country, I am brought before you to vindicate my conduct upon a charge so extraordinary in its nature as was ever submitted to the interrogation of a court-martial—that with means placed at my disposal for a successful attack against the possessions of the enemy, instead I should have suffered my command to remain inactive.
“Notwithstanding this singular view, it is my intention to demonstrate to the court that, far from being a rash adventure conducted on an impulse, this has been an operation of long consideration, carefully planned and authorised at the highest level, the prime minister himself terming it his ‘favourite object.’ I shall bring to the attention of the honourable members of this court memoranda and dispatches that reveal my actions to be sanctioned by ministerial knowledge and approval.
“In this, was I not doing my duty in the interest of my country? As to the accusation that I quit my station without leave, I can only point to more illustrious commanders than myself who, in the recollection of members here sitting, have seen with the daring spirit of enterprise an opportunity to further gallant achievement beyond a passive acceptance of their situation.
“I beg leave to mention the coup de main of Admiral Rooke who, having no orders to do so, in bold enterprise seized Gibraltar for the British Crown. And in the late war, in 1793, Lord Hood took it upon himself to enter Toulon and move upon Bastia. That we had insufficient force to hold them does not diminish his achievement. Neither was he made subject of imputation.
“At a later date we find Lord St Vincent, then Sir John Jervis, sent the heroic Nelson to attack Tenerife in the mistaken belief that treasure ships were sheltering there, which as we know met with dolorous consequences. This was undertaken without orders from any superior authority and outside the limits of his command. Certainly no judicial inquiry or public censure ever followed the enterprise.”
The shot hit home: the prosecuting counsel’s face tightened but Popham went on in measured tones.
“And I need hardly remind the honourable members of the action of the gallant Lord Nelson himself in leaving his station to pursue Villeneuve to the West Indies. I quote from his letter at the time from Martinico. ‘I had no hesitation in forming my judgement, and I flew to the West Indies without any orders, and I think the ministry cannot be displeased.’ I believe it unnecessary to state that the country as a whole rejoiced at his so doing.
“In short, it is that officers with independent command cannot be fettered by the literal tenor of the orders given them. A command such as mine is, from its very nature, discretionary in the very comprehensive meaning of the word.”
He accepted a sheaf of papers handed to him by his counsel. “Honourable gentlemen, I have here sufficient evidence for my stand. That my project was known at cabinet level and that I acted with due discretion in the discharge of my
duty. May therefore these be read into the record.”
“And this is the documentary evidence for your defence?”
“It is, Mr President.”
“Very well. Judge Advocate?”
One by one they were read out in open court, Jervis in ill-natured debate challenging their legitimacy as evidence, demanding corroboration, sarcastically questioning their relevance. But it appeared that Popham indeed had had the ear of the greatest in the land.
The picture they gave was of Popham moving in the very highest circles—accounts of his dealings with Miranda, the Venezuelan revolutionary, and early plans for a joint attack on Spanish South America. Letters from Pitt demanding more details, military estimates to meet secret plans, correspondence with the Admiralty and, in fact, the first lord himself on the subject.
“We will now call witnesses.”
The president of the court picked up his list and made play of consulting it.
“Call Henry Dundas, First Viscount Melville.”
There was an immediate rustle around the court—this was none other than the reigning first lord of the Admiralty at the time, who could be relied upon to have been privy to every naval confidence.
It took a little while, for the noble lord was being accommodated ashore until summoned. A tall, imposing figure, he appeared with his flag lieutenant.
As soon as he was sworn in Popham wasted no time. “Will your lordship have the goodness to relate to the court the circumstances respecting the communications I held with Mr Pitt and your lordship upon the subject of a proposed expedition to South America?”
A respectful hush descended. If a first lord of the Admiralty supported Popham’s claims, then the court-martial was all but over—who sitting there in judgement would dare to press the issue?
Jervis waited in a forced rigidity, Popham with an air of supreme confidence and polite patience.
“I … feel some difficulty in answering this question,” Melville began, with a deprecating gesture. “I have no doubt it can be answered but for any allusion to confidential secrets of state, and this …”
Popham’s smile slipped a little. “Nothing can be more foreign to my wish than a disclosure leading to the improper publication of a state secret. No—let my reputation suffer rather than such a consequence be risked.”
“Then I shall endeavour to answer to the best of my recollection.”
Dundas began by telling the court how Popham had introduced General Miranda with a plan for a simultaneous descent on the southern continent, at the successful conclusion of which Britain would be rewarded with preferential access to the newly opened market.
“Did Mr Pitt accede to this plan?”
“We had several conversations on the matter but did not immediately proceed.”
Jervis scribbled something that was handed to the president, who held up his hand. “Can your lordship indicate to the court why this was so?”
“I may say that a higher political purpose prevented it.”
“Sir, if at all possible, the court would be interested to know it.”
“Very well, as any pretence at secrecy in the matter is now no longer practicable. It is that until the events off Cape Trafalgar it was held that any attempt on the Spanish colonies would provoke a more fierce adherence to the French cause, at hazard to our diplomatic exertions in Madrid to detach them.”
Swiftly Popham gave over a paper. “Does your lordship recognise this letter?”
“I do. It is one sent by me directing you to attend a meeting with Mr Pitt upon the subject.”
“And to produce a memoir upon the matter.”
“That is so.”
“Which resulted in a warm discussion between us.”
Jervis had waited for his moment: it was now.
“Mr President,” he said, in a voice silky with menace, “this is neither here nor there in the charge before the court. We accept that the honourable captain was engaged in dealings with the noble lord and Mr Pitt in the matter of South America. There is really but one question that interests us: does his lordship confirm or deny that orders were given to Sir Home Popham specific to an attack on Buenos Aires?”
“Let the question be put.”
“No orders were given in that tenor.”
Smoothly, as if nothing had happened, Popham continued to examine the first lord. Cabinet meetings, dry detail of fleet assembly, intelligence pertaining to Spanish colonial conditions but nothing to stand against the damning disclosure just given.
Melville was stood down with every expression of gratitude for his time graciously given.
Popham then called William Sturges Bourne, Esquire.
He took position before the court and was duly sworn in.
“Is it possible, Mr Bourne, from the situation you held, you should be acquainted with the secrets of government?”
“I am not aware of the extent of your question.” The man was reticent, defensive.
Popham seemed nettled. “Were you one of the secretaries at the Treasury during the administration of Mr Pitt?”
“I was.”
“Then do you recall, sir, confidential information received by your office relative to the situation obtaining in Buenos Aires?”
“I have a faint recollection only.”
“Come, come, sir. Of such import, and bearing so on the—”
“I object—leading the witness!” rapped Jervis.
“Quite. Sir Home, in any case the witness has further admitted only an unreliable knowledge of this. I rule the question disallowed.”
“As the court pleases. Mr Bourne, do you recollect the confidence Mr Pitt reposed in me in respect of secret matters pertaining to South America and in particular the situation in the Rio de la Plata?”
“He mentioned you in cabinet discussions on the subject,” he said carefully.
“And did he not in your hearing seek my personal opinion on the officer to command the Cape expedition?”
“I have some remembrance of it, but not sufficiently strong for me to speak positively on it.”
Admiral Young interjected, “Sir Home, where your questioning is headed is not altogether clear to the court. I have but one question to put to the witness: Mr Bourne, in the conversations at which you were present with Mr Pitt and Sir Home Popham, was it determined or proposed to attack the Spanish settlements in South America after the assault on the Cape, in the event that it proved successful?”
“I recollect no proposal being made in any conversation respecting a descent on the Spanish settlements in South America.”
“Thank you. Have you any more questions for this witness, Sir Home?”
Bourne was stood down and William Huskisson was sworn in.
A young, intense individual, his prominent forehead and alert eyes gave an impression of high intelligence.
“Were you one of the principal secretaries in Mr Pitt’s government?”
“I was.”
“Do you recollect my taking leave of Mr Pitt in your room at the Treasury, immediately prior to my sailing for the Cape?”
“I do.”
“Was the impression at all on your mind that I had at that time a conversation with Mr Pitt on South America?”
Jervis objected immediately. “The question is illegal. How can the witness testify to what transpired when he was not present?”
“Sir Home?”
“Mr President, I cannot understand distinctly what the learned prosecutor means when he calls this illegal evidence. Unfortunately for me and the country, Mr Pitt is no more and I am therefore under the necessity of seeking that from others he could prove by himself were he alive. In the absence of this testimony I now adduce one of his most confidential friends in order to show the wish and views of that illustrious man.”
“We will allow the question.”
“I had the impression that the conversation related to South America, yes,” said Bourne.
“Sir, did you have any discussion with
Mr Pitt yourself upon the subject of South America, particularly Buenos Aires?”
“I did have, as I was directed to take certain steps by his desire concerning Buenos Aires.”
“And what was the nature of this direction?”
“In that instance it was to explain the existence of a map or chart of the approaches being lately taken from the King of Spain’s depot in Madrid, being afterwards copied for the French military.”
“For what purpose, pray?”
“It was believed to form part of a design by the French for their own incursion, a likelihood which was not thought much of.”
“Sir Home,” the president came in, “I find myself under the painful necessity of intervening once again. Let the witness answer: did Mr Pitt at any time communicate to you any orders of a nature requiring Sir Home to attack Buenos Aires upon successful conquest of the Cape?”
“I certainly never understood from Mr Pitt that Sir Home had such positive or provisional orders, no, sir.”
“Sir Home?”
“Sir. It could be said that plans were well advanced for the reduction of the Spanish colonies when I sailed for the Cape. Were they not put in train to take effect once news of the successful taking of Cape Colony was received? That is to say, orders from Mr Pitt would have been issued if I had not exercised my discretion in view of rapidly advancing events?”
“I cannot speak to that. At this time there was no communication between myself and Mr Pitt, he being upon his death-bed.”
Popham’s hands clenched, once, and in a thick voice he asked, “How long have you been in post?”
“In a situation with the Admiralty? Why, sir, we may say above twelve years.”
“In a long experience as chief secretary to that board, can you state to the court whether in the trials of Admiral Byng, Lord Keppel, Sir Robert Calder, Admiral Duckworth—”
“Pray what is your question, Sir Home?” the president asked testily.
Popham went on doggedly, “—whether the charge was framed in such a manner as to call the court, ahead of the trial, to punish the individual to be tried?”
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