‘Indeed?’ The president brightened. ‘I’m obliged to you. Nyaff,’ he repeated with satisfaction. ‘Remarkable. Do go on.’
Prosecution, looking slightly rattled, turned again to Baxter.
‘And after he had called you . . . these names?’
‘He called me a glaikit sumph.’
You could see Prosecution wishing he hadn’t asked. The president was looking hopeful. ‘Sumph,’ said the president with relish. ‘That’s strong.’ He looked inquiring, and Prosecution sighed.
‘Sumph, a dullard, an uninspired person, a stick-in-the-mud. Glaikit, loose-jointed, awkward, ill-formed.’ He put down his paper with resignation. ‘There is more, sir, in the dialect and in ordinary speech, but I question whether . . .’
‘What else did he call you?’ said the president, taking control. Baxter looked sulky.
‘A rotten big bastard,’ he said.
‘Oh.’ The president looked disappointed. He shot a glance at McAuslan, as though he had hoped for better things. ‘All right, then. Carry on, please.’
The major suddenly intervened. ‘This was just common abuse?’
‘Pretty uncommon, I should say,’ observed the young cavalryman cheerfully.
Prosecution, obviously deciding that things must be put on the right lines again, addressed Baxter:
‘Common abuse or not, the point is that a definite order, clearly given and understood, was disobeyed. You are quite clear on that?’
‘Yes, sir.’ You could see that Baxter didn’t care for courts-martial. They just exposed him to a repetition of unpleasant personalities. ‘I gave him a good chance, sir, but he just kept refusin’.’
Unbelievably, McAuslan spoke. ‘Ah called him a two-strippit git, as weel,’ he announced.
This produced an immediate sensation in court. Prosecution rounded indignantly on the accused, the escort snarled at him to be silent, Einstein dropped his spectacles, and the president said he hadn’t caught the last word properly. McAuslan, startled at the effect of his intervention, got up hurriedly, upset his chair, cursed richly, and was thrust back into his seat by a savagely whispering regimental policeman. When order had been restored, and the president had been heard to murmur, ‘Git, get, geat – possibly Geat, a Goth. Wiglaf was a Geat, wasn’t he?’ Einstein rose for cross-examination.
‘Odd kind of order, wasn’t it, Corporal – to enter for a pillow-fight?’
‘I was detailing men for duties connected wi’ the sports,’ said Baxter stiffly.
‘What other events did you order people to enter?’ asked Einstein.
Baxter hesitated. ‘The others I ordered were for fatigues, like settin’ up hurdles and helpin’ wi’ the tents.’
‘I see. And why did you order the prisoner into the pillow-fight? Why him, particularly?’
Baxter looked sullen, and Einstein repeated his question. ‘This was the only soldier you ordered to enter a specific event. Now, why him, and why the pillow-fight?’
‘He was dirty, sir, and I told him he could do wi’ a wash.’
‘Dirty, was he? Had he been on fatigues?’
‘He’s always dirty,’ said Baxter firmly.
‘Oh, he hadn’t been on fatigues? You’re sure of that?’
‘Well, yes, sir,’ said Baxter. ‘He had been on fatigues . . .’
‘What fatigues?’ snapped Einstein.
‘Ablutions, sir.’
‘So he had every right to be dirty at that time?’
‘Yes, sir, but . . .’
‘Never mind “but”. If he was dirty then, it was only natural, considering the fatigues he had been doing, isn’t that so?’
‘He’s always dirty, sir,’ insisted Baxter. ‘He’s the dirtiest thing in the battalion . . .’
‘Stand up, prisoner,’ said Einstein. ‘Now, Corporal, take a good look at him, and tell me: is he dirty?’
Baxter looked at McAuslan, balefully. ‘Ye wouldnae expect him to be . . .’
‘Answer my question! Is he dirty?’
‘No, sir.’
‘Yet you said he was always dirty. Well, Corporal?’
‘It’s the first time I’ve seen him clean,’ said Baxter doggedly.
‘Ye’re a bloody liar,’ said McAuslan, aggrieved.
‘Ah’m no’ . . .’
There were further sensations at this, culminating in a stern warning to the prisoner — I doubt if it would have been half as stern if he had employed a choice Caledonian epithet instead of Anglo-Saxon which the president knew already. Then Einstein resumed, on a different tack.
‘When you gave this alleged order, Corporal . . .’
‘I can’t have that,’ said Prosecution, rising. ‘Defence’s use of the word alleged is calculated to throw doubt on the witness’s veracity, which is not in question.’
‘Who says it’s not?’ demanded Einstein. ‘He’s admitted one mis-statement already.’
‘He has done no such thing. That is deliberately to distort his evidence. I submit . . .’
‘Perhaps we could rephrase the question?’ suggested the president, back to his normal despondent self now that there were no further fine avenues to explore in McAuslan’s vocabulary.
‘Very good, sir,’ said Einstein. ‘Corporal, before you gave the order which you’ve told us you gave, did you not suggest, as distinct from ordering, to the accused that he enter the pillow-fight?’
‘It was an order, sir,’ said Baxter.
‘But wasn’t it given, well, jocularly. In fun, you know?’
Cunning Einstein knew quite well that if he could get even a hint of admission on this point, he had put a big nail in the prosecution’s case. But not-so-cunning Baxter knew that much too.
‘No, sir,’ he said stoutly.
‘No smile? No – well, you know – no case of, “Hey soldier, you look pretty mucky; how about getting a good wash in the pillow-fight?” Wasn’t that it? And didn’t the prisoner treat it as a joke, and tell you, joking in turn, to get lost? Wasn’t that about it, Corporal?’
‘No, sir, it was not.’
‘And didn’t you take offence at this, and turn the joke into an order?’
‘No, sir, definitely not.’
‘Do you know that the prisoner claims that you did smile, at first, and that he didn’t take your order seriously until, much to his surprise, you put him on a charge?’
‘I don’t know that, sir.’
‘You never realised that he thought you were being funny?’
‘No, sir.’
‘Have you ever ordered a man to go in for a pillow-fight before?’
‘No, sir.’
‘Ever heard of such a thing?’
‘I’ve heard of orders being given, sir,’ said Baxter boldly.
‘That wasn’t my question, Corporal, and you know it. Have you ever heard of a man being ordered to enter a pillow-fight? ’
‘No, sir.’
‘So you would agree it isn’t a common order?’
‘No, sir.’
‘Right,’ said Einstein. ‘Thank you, Corporal. No more questions.’
Prosecution was actually rising when Einstein bobbed up again, as though he had forgotten something.
‘I’m sorry, just one more question after all. Corporal, how long have you been a corporal?’
‘Three weeks, sir.’
Einstein sat down without a word.
Prosecution contented himself with re-emphasising that an order had been given and understood, and got Baxter to clarify the point about McAuslan’s dirtiness: McAuslan, Baxter said, had always been dirty until the present occasion.
‘When you would expect him to be looking his best?’ asked Prosecution.
‘Oh, yes, sir.’
‘Thank you, Corporal. That’s all.’
Baxter saluted and strode out, and Prosecution called Lance-Corporal Bakie, who corroborated Baxter’s evidence as to McAuslan’s refusal of a straightforward order. No, Bakie had not seen Baxter smile at any time, nor had M
cAuslan appeared to regard the order as anything but a serious one. In Bakie’s view, the refusal had been pure badness on McAuslan’s part, but then McAuslan was notoriously a bad bas . . . a bad soldier. Dirty? Oh yes, something shocking.
Einstein didn’t even bother to cross-examine, and when Bakie stood down Prosecution announced that that was it, from his side. He seemed satisfied; he had made his point clearly, it seemed to me. Einstein, muttering and rummaging through his papers, presently rose to open the defence, and to an accompaniment of crashing furniture and stifled swearing, Private McAuslan took the stand.
Looking at him, as he stood listening in evident agitation while they explained what taking the oath meant, I decided that while he was certainly clean for once, that was about all you could say for him. He looked like Sixteen-string Jack on his way to Tyburn, keenly conscious of his position.
Einstein got up, and McAuslan clung to him mentally like a monkey to its mother. Then Einstein started questioning him, slowly and gently, and to my surprise McAuslan responded well. No, he had not taken the order seriously; he had thought Baxter was at the kidding; who ever heard of a fella bein’ told tae get intae a pilla-fight? In a military career that stretched from Tobruk onwards (trust Einstein) McAuslan had never heard of such a thing. Oh, aye, Baxter had been smilin’; grinnin’ a’ ower his face, a’ the fellas in the room had seen it.
‘Have you ever refused an order, McAuslan?’ said Einstein.
‘S’help ma Goad, no, sir. Ye can ask Mr MacNeill.’
‘You realise that if you have, and been convicted of it, that may appear during this trial? In which case, you know, you can be charged with perjury?’
McAuslan called the gods of Garscube Road to witness his innocence. I was pretty sure he hadn’t ever been disobedient – dirty, idle, slovenly, drunk, you name it, McAuslan had been it, but probably he had never wilfully disobeyed a lawful command.
‘But, look here, McAuslan,’ said Einstein. ‘You said some pretty rough things to the corporal, you know. We heard them. How about those?’
‘That wis when he got nasty, and started sayin’ Ah wis dirty,’ said McAuslan vehemently. ‘Ah’m no’ havin’ that. Ah’m no’ dirty. He’d nae business tae say that.’
It sounded convincing, although I was certain Einstein had rehearsed him in it. Despite his original protestations to me and to the C.O., when his rage was hot against the upstart Baxter, McAuslan must know he was generally regarded as personally fit only for the dead cart. There had been times in the past when he had seemed to take a satisfaction in his squalor; he had been forcibly washed more than once.
‘So, this is your case, then.’ Einstein, hands on hips, stared at the floor. ‘You thought the corporal was joking, and so you didn’t take his order seriously. When he said you were dirty and should enter the pillow-fight to get a wash, you resented it, but you didn’t think he really meant you to enter the pillow-fight?’
‘That’s right, sir.’
‘And then he charged you, and you swore at him.’
‘Aye.’
‘You aren’t charged with swearing at him, of course,’ Einstein was casual. ‘And you contend that when Corporal Baxter says you’re a dirty soldier, he is not telling the truth.’
‘He’s not, sir. Ah’m no’ dirty. Ye can ask Mr Mac . . .’
Not if you’ve any sense, you won’t, I thought. I’d do a lot for McAuslan, but perjuring myself to the extent of saying he wasn’t dirty would have been too much.
‘Tell me, McAuslan,’ said Einstein confidentially. ‘The reason why you didn’t take the order seriously was that you felt that it was silly and unreasonable, wasn’t it? I mean, the corporal was really telling you, in a rather nasty way, to get washed. That right? And you knew that wasn’t sensible. Oh, I know you’d been on ablutions, but his order implied that you were habitually filthy, didn’t it? And you knew that wasn’t right?’
Prosecution rose languidly. ‘Really, I feel the witness is being led, rather. At this rate defence might as well give his evidence for him.’
There was a bit of legal snarling, and the president mumbled at them, and then Einstein resumed.
‘Did you think such an order, given seriously, could reasonably apply to you?’
‘No, sir. Ah didnae.’
God forgive you, McAuslan, I thought. Morally, I may be on your side, but legally you’re a perjured ruffian. And Einstein, the clown, was making it worse.
‘You take a pride in your appearance, McAuslan?’
‘Yes, sir.’
Now I’d heard everything.
Einstein sat down, and Prosecution came slowly to his feet, stropping his claws. McAuslan turned to face him as if he were one of the Afrika Korps. Now, I thought, you poor disorderly soldier, you’re for it, but somehow it didn’t turn out that way. McAuslan knew his story, and he stuck to it: he hadn’t disobeyed, he wasn’t dirty. Prosecution put his questions suavely, sneeringly, angrily, and Einstein never made a murmur, but McAuslan just sat there with his ugly head lowered and said, ‘No, sir,’ or ‘Ah didnae, sir’. Prosecution’s cross-examination was falling flat; you can’t play clever tricks with a witness who just persists in dogged denial, and eventually he gave it up. McAuslan went back to the accused’s chair, and I felt that on balance he had made not a bad show—better than I’d expected, by a long way.
Then the blow fell. Einstein called Private Brown, who testified that Baxter had been leering wickedly, and had not intended the order seriously; not at first, anyway. Baxter thought he was good, Brown opined, and often took the mickey out of the fellas. So far so good; Brown stuck to his story under cross-examination, and then Prosecution drove his horse and cart through the middle of the defence’s case.
‘The court has been told that the accused didn’t take the order seriously,’ he informed Brown, ‘and it has been implied that his reason for this attitude was that such an order couldn’t apply to him. He contends – the defence will correct me if I’m wrong – that he is a clean soldier, and that therefore the order to enter the pillow-fight (and consequently get a bath) couldn’t be taken seriously. What do you think of that?’
Einstein was up like a shot. ‘Witness’s opinion of evidence is not itself evidence.’
Prosecution bowed. ‘All right, I’ll change the question. Is McAuslan a clean soldier?’
Brown, who was well named Daft Bob, grinned. ‘Ah widnae say that, sir.’
You could feel the court stiffen.
‘You wouldn’t?’ Prosecution’s voice was honeyed. ‘What would you call him?’
Brown, realising that this mattered, and torn between the fear of the court and loyalty to one who was, after all, his comrade, hesitated.
‘Ah don’t know, sir.’
‘Oh, yes, you do. Is he clean or not, smart or not?’
‘He’s no’ very clean, sir.’ A pause. ‘We had to wash him once.’
‘So his contention that he couldn’t believe the order was serious is simply nonsense?’
‘Ah . . . Ah suppose so, sir.’
Einstein did his best in re-examination, but it was no use. No honest witness from the battalion could have called McAuslan anything but dirty, and Einstein had made his cleanliness the keystone of the defence. Why he had, I couldn’t guess, but he had cooked McAuslan all the way. Prosecution was looking serene when Daft Bob stood down, the court was looking solemn and stern, Einstein was looking worried.
There was a pause, and then the president asked if the defence had any further witnesses. Einstein looked blank for a minute, with his mouth open, said ‘Errr’ at some length, and then ended abruptly, ‘Yessir. Yes, one more, sir.’ He stood up, straightened his rumpled tunic, and called out:
‘Regimental Sergeant-Major Mackintosh!’
If he had called General de Gaulle I’d have been less surprised. I couldn’t think of a good reason for calling the R.S.M., just a few bad ones. If Einstein was hoping to get helpful evidence here, he was, as the Jocks say, away with
the fairies.
The R.S.M. came in, like Astur the great Lord of Luna, with stately stride. He was in great shape, from the glittering silver of his stag’s head badge to the gloriously polished black of his boots, six and a quarter feet of kilted splendour. He crashed to a halt before the president, swept him a salute, took the oath resoundingly, kissed the book – the sheer military dignity of that one action would have won Napoleon’s heart – and sat down, folding the pleats of his kilt deftly beneath him. Einstein approached him like a slightly nervous ambassador before a throne.
‘You are John Mackintosh, Regimental Sergeant-Major of this battalion?’
‘I am, sir.’
‘I see, yes.’ Having established that, Einstein seemed uncertain how to proceed. ‘Er . . . tell the court, please, er . . . Mr Mackintosh – have you always been with this regiment?’
‘No, sir,’ said the R.S.M. ‘Having completed my early service in this regiment, I was for twelve years in the Brigade of Guards. The Scots Guards, to be exact.’
‘Thank you,’ said Einstein. ‘May I ask what rank you attained – in the Guards?’
‘Drill Sergeant, sir. I served in that capacity at the Pirbright depot.’
Which is to say that Mackintosh had been one of the two or three smartest and most expert parade-ground soldiers in the world. It didn’t surprise me.
‘And after that?’
‘I was attached to the Second Commando durin’ the late war, sir, before returnin’ to the Scots Guards in 1943. Shortly afterwards I was transferred to this battalion.’
‘As R.S.M.?’
‘In my present capacity, sir; yes.’
Which rounded off his military service nicely, but hadn’t done much to clear up the case of Rex v. McAuslan. Einstein was scratching himself; Prosecution was looking slightly amused.
‘Tell me, Mr Mackintosh,’ said Einstein. ‘Having served in the Guards, as you’ve told us, would you say . . . well, would you disagree, if I said you were probably a leading authority on military standards and deportment?’
The R.S.M. considered this, sitting upright like a Caesar, one immaculate hose-topped leg thrust forward, hand on knee. He permitted himself a half-smile.