At the conclusion, the president rose again and likewise swore the judge martial.
‘I, David Jenkyns, do swear that I will not, upon any Account, at any time whatsoever, disclose or discover the Vote or Opinion of any particular Member of the Court martial, unless required to give Evidence thereof, as a Witness, by a Court of Justice in due course of Law. So help me, God.’
They both sat, and the president turned at last to the prosecuting officer, nodding his assent to proceed.
Lieutenant & Adjutant Ezra Barrow rose to his feet solemnly. He was something of a veteran of courts martial, but this was his first time in a position of authority. ‘Mr President and gentlemen, there are before the court three charges. First, for that he, Cornet Frederick Keevil Daly, of His Majesty’s Sixth Light Dragoons, Princess Caroline’s Own, on the 24th July, 1809, in the field at Talavera de la Reina, did occasion injury by wilful neglect or commission resulting in death to a horse in His Majesty’s service. Second, that he did abuse a subordinate, namely Serjeant Treve, regimental orderly quartermaster that day, and attempt an assault upon him.’ The adjutant laid down the sheet and took up a second. ‘The third charge relates to the other prisoner: for conduct unbecoming the character of an officer and a gentleman in that he, Cornet Matthew Paulinus Hervey, also of the Sixth Light Dragoons, on the same day and in the same place did strike without cause Cornet Frederick Keevil Daly.’ The adjutant laid the second sheet on the table before him, bowed, and sat down.
The president turned to the table opposite the adjutant’s. ‘How do the prisoners plead in respect of each of these charges?’
The two defending officers rose. Lieutenant Beale-Browne spoke first. ‘In respect of Cornet Daly, sir, on both charges, not guilty.’
The president waited for the judge martial to make the formal entry in his ledger, then looked at Lieutenant Martyn.
‘In respect of Cornet Hervey, sir, not guilty.’
‘Very well, be seated, gentlemen. Mr Barrow, continue, if you please.’
The adjutant rose and took up a third sheet, this time of manuscript. ‘Mr President and gentlemen, it is with feelings of deep regret that I am compelled to appear before you this day as the prosecutor of two officers under the orders of the lieutenant-colonel commanding His Majesty’s Sixth Light Dragoons. But however unwilling he be, under all the circumstances of the case about to be submitted to your investigation, the lieutenant-colonel considers that he would not be conscientiously discharging the duties of command entrusted to him, or furthering the good of the service, were he, from considerations of protecting the good reputation of the regiment, to hesitate in coming forward and laying the whole of the conduct of two of his officers before you. And he trusts that calm and dispassionate consideration, which it is sure to meet with before a court composed of officers, will conclude in a right judgment in this extraordinary matter.’
Barrow paused, as his manuscript indicated he should, and looked at the president and members – as did every man in the room.
It did the trick: they each nodded gravely, publicly, at least, disowning any thoughts of frivolous prosecution or – as some of the tattle in the army had it – a trivial affair of dandies over a horse. Without doubt, however, Barrow’s Birmingham vowels had already persuaded some members that not everything was elegance about Princess Caroline’s Own. For his part, Hervey was a little surprised by the adjutant’s evident command of legal formularies, though dismayed, too, by their length.
‘Mr President and gentlemen, the charges relate to an incident almost immediately before the general action at Talavera de la Reina, following from a continuous period of many weeks’ marching, of which the members of the court will be only too perfectly aware. Although the horses of the regiment were in pretty good condition, as its veterinary surgeon would testify, Cornet Daly’s second charger, a brown colt, was suffering from lampas. As a result—’
The judge martial looked up from his ledger and turned to the president.
The president had anticipated the enquiry, however. ‘Mr Barrow, would you explain, for the benefit of the court, what precisely is lampas.’
The adjutant lowered his page of manuscript. ‘Mr Knight, the veterinary surgeon, will be able to give a complete description, sir, but in essence the lampas is an excrescence on the first bar in the roof of the horse’s mouth, not common but prevalent in younger animals from irritation occasioned by the growth of or changes in the teeth. It may also occur in horses at work from inflammation set up by injuries from the bit. I trespass further on the veterinary surgeon’s ground when I say that in the past the treatment was frequently the burning out of the excrescence, but that recent practice has tended away from this, and to treat instead by frequent washing of the mouth with an acerb mixture.’ He waited for acknowledgement that his explanation would suffice.
The president looked at the judge martial, who nodded. ‘Very well, Mr Barrow. Would you say that the nature and treatment of this condition is of essential substance in this trial?’
The adjutant smiled slightly. ‘Sir, my own knowledge of both is not greatly more than that which I have just rendered to you, and I have not found it difficult to reach a conclusion.’
The president, while not reflecting the smile, evidently found the reassurance welcome. ‘Very well, but I may require the veterinary surgeon to give his professional opinion in the matter separately to any other evidence, and if necessary at an early stage should it become apparent that the court has need of it.’
The adjutant looked not the slightest perturbed at the prospect of departure from his carefully prepared script. ‘Of course, sir. If I may continue now?’
The president nodded.
‘Mr President and gentlemen, as I was saying, Cornet Daly’s colt was suffering from lampas, to an extent that made it unfit for service. The veterinary surgeon prescribed the washing treatment I referred to, refusing Mr Daly’s request for firing. Later that evening, Mr Daly took it upon himself to burn out the lampas. The veterinary surgeon will testify that in his opinion the procedure was done ineptly, and that in consequence the animal died from a condition which he will refer to as “the shock”.’
‘One moment, please,’ said the judge martial, turning to the president for his approval, and then back to Barrow. ‘You say, Mr Barrow, that the veterinary surgeon is of the opinion that the procedure was done ineptly. Is there any suggestion that it was unauthorized? An improper procedure?’
Again, Barrow did not flinch. ‘The horses of the regiment, be they owned by government or not, are deemed to be in the King’s service, and the veterinary surgeon is responsible to the lieutenant-colonel for the treatment of all sick animals. To that extent, Your Honour, if a treatment is not authorized by the veterinary surgeon, it is an unauthorized procedure – an improper procedure, yes. And in the case of Mr Daly’s colt, the veterinary surgeon will testify that he specifically forbad the firing.’
The judge martial wrote in his ledger very deliberately. His knowledge of the military was limited, and it was his first trial in the field. It was, indeed, the first trial in the Peninsula at which a judge martial had been present, and the first in which the new rules of procedure – controversial rules of procedure, lately enacted by parliament – were to apply. Sir Arthur Wellesley himself had asked for a judicial presence, so that courts martial could conduct their business expeditiously rather than having to send the proceedings to England for review. Judge Advocate Jenkyns was not about to invite the wrath of the commander-in-chief on account of any mistrial over a point of law. At length he stopped writing. ‘Thank you, Mr Barrow,’ he said, in a noncommittal tone, then turned and nodded to the president.