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.