The Archer-Shee Case

I

FROM time to time, since the turn of the century, there has issued from the press of a publishing house in London and Edinburgh a series of volumes called the Notable British Trials, each volume dedicated to some case in the criminal annals of England or Scotland. Each would contain not only the testimony of witnesses, the photographs of exhibits, the arguments of counsel, the dicta from the bench, and the verdict of the jury, but also an introductory essay nicely calculated to enthrall those readers who collect such instances of human violence, much as other madmen collect coins or autographs or stamps.

The cases thus made available range all the way from the trials of the mutineers aboard the Bounty to the libel action which, in the twilight of the Victorian era, grew out of a charge of cheating during a card game at a place called Tranby Croft, a gaudy lawsuit which agitated the entire Empire because it dragged into the witness box no less a personage, a bit ruffled and breathing heavily, than H. R. H. the Prince of Wales, who was later to rule and consolidate that empire as Edward VII. But for the most part, of course, the cases thus edited have had their origin in murder most foul, and they constitute not only an indispensable part of every law library but a tempting pastime to all of us whose telltale interest in poison and throat-cutting is revealed in no other aspect of our humdrum, blameless lives. Now, as an avid subscriber to the series, I have long been both exasperated and puzzled by the fact that it contained no transcript of that trial which, more and more in recent years, has taken definite shape in my own mind as one of the most notable and certainly the most British of them all. Nowhere in England or America is there available in any library a record of the Archer-Shee case. The student eager to master its details must depend on such scattered odds and ends as he can dredge up from contemporary memoirs and from the woefully incomplete reports in newspaper files which already moulder to dust at the touch.

But within recent months, by a series of curious chances too fantastic to have been foreseen, a complete private record of the entire case has come into my possession, and it is my present plan, before another year has passed, to put it into print for the use of anyone who needs it as a light or craves it as a tonic. For the Archer-Shee case is a short, sharp, illuminating chapter in the long history of human liberty, and a study of it might, it seems to me, stiffen the purpose of all those who in our own day are freshly resolved that that liberty shall not perish from the earth.

In the fall of 1908, Mr. Martin ArcherShee, a bank manager in Liverpool, received word, through the commandant of the Royal Naval College at Osborne, that the Lords Commissioners of the Admiralty had decided to dismiss his thirteen-year-old son George, who had been proudly entered as a cadet only a few months before. It seems that a fiveshilling postal order had been stolen from the locker of one of the boys — stolen, forged, and cashed — and, after a sifting of all the available evidence, the authorities felt unable to escape the conclusion that young Archer-Shee was the culprit. Out of such damaged and unpromising material the Admiralty could scarcely be expected to fashion an officer for His Majesty’s Navy. ‘My Lords deeply regret,’ the letter went on to say, ‘ that they must therefore request you to withdraw your son from the College.’ This devastating and puzzling news brought the family hurrying to Osborne. Was it true? No, Father. Then why did the authorities accuse him? What had made them think him guilty? The bewildered boy had no idea. ‘Well,’ said the father in effect, ‘we’ll have to see about this,’ little guessing then, as he was to learn through many a bitter and discouraging month, that that would be easier said than done.

What had made them think the boy a thief? The offish captain could only refer him to the Admiralty, and the Lords of the Admiralty — by not answering letters, evading direct questions, and all the familiar technique of bureaucratic delay — retired behind the tradition that the Navy must be the sole judge of material suitable for the making of a British officer. If once they allowed their dismissal of a cadet to be reviewed by an inevitably outraged family, they would be establishing a costly and regrettable precedent.

What the elder Archer-Shee found blocking the path was no personal devil, no vindictive enemy of his son, no malignant spirit. But he was faced with an opponent as maddening, as cruel, and as destructive. He was entering the lists against the massive, complacent inertia of a government department which is not used to being questioned and does not like to be bothered. He was girding his loins for the kind of combat that takes all the courage and patience and will power a man can summon to his aid. He was challenging a bureaucracy to battle.

At a dozen points in the ensuing struggle, in which he was backed up every day by his first-born, who was a Major and an M. P. and a D. S. O., a less resolute fighter might have been willing to give up, and one of smaller means would have had to. After all, the boy’s former teachers and classmates at Stonyhurst, the Catholic college where he was prepared for Osborne, had welcomed him back with open arms, and, as allusions to the episode began to find their way into print, there were plenty of comfortable old men in clubs who opined loudly that this man ArcherShee was making a bloody nuisance of himself. But you may also be sure that there were those among the neighbors who implied by their manner that the Navy must know what it was doing, that where there was so much smoke there must be some fire, that if the whole story could be told, and so forth and so forth. I think the father knew in his heart, as surely as anyone can know anything in this world, that his son was innocent. While there was a breath left in his body and a pound in his bank account, he could not let the youngster go out into the world with that stain on his name. He would not give up. Probably he was strengthened by his memory of how bitterly his little boy had wept on the day they took him away from Osborne. The father lived — by no more than a few months — to see the fight through.

II

The first great step was the retaining of Sir Edward Carson, then at the zenith of his incomparable reputation as an advocate. In his day, Carson was to hold high office, — Attorney-General, Solicitor-General, — to assume political leadership in the Ulster crisis, — leader of the Irish Unionists in the House, — to be rewarded with a peerage. It was part of the manifold irony of that crowded and stormy life, which ended in his death at eighty-one in 1935, that probably he will be longest remembered because of that hour of merciless crossexamination, in a libel suit at the Old Bailey, which brought down in ruins the towering and shaky edifice known as Oscar Wilde. But some there are who, when all else is forgotten, will rather hold Carson in highest honor for the good turn he once did to a small boy in trouble. He put all his tremendous power and implacable persistence and passionate hatred of tyranny at the service of Master Archer-Shee.

It was only after he had heard the boy’s own story (and raked him with such a bracketing fire of questions as he was famous for directing against a witness) that he agreed to take the case at all. From that interview he rose, saying in effect, ‘This boy did not steal that postal order. Now, let’s get at the facts.’

This took a bit of doing. It was the nub of the difficulty that the small embryo officer had, by becoming a cadet, lost the rights of an ordinary citizen without yet reaching that status which would have entitled him to a courtmartial. To be sure, the Admiralty by this time had resentfully bestirred itself to make several supplementary inquiries, but these were all ex parte proceedings, with the boy unrepresented by counsel, the witnesses unsubjected to the often clarifying fire of cross-examination. Even when the badgered authorities went so far as to submit their findings to the Judge Advocate General for review, they still kept the Archer-Shees cooling their heels in the anteroom.

I am commanded by the Lords Commissioners of the Admiralty to acknowledge receipt of your letter relative to the case of George Archer-Shee, and my Lords desire me to say that the further enquiry is not one at which a representative of your side in the sense in which you use the word would be appropriate.

Well, even at the horrid risk of following a procedure which might be described as ‘inappropriate,’ Carson was determined to get the case into court, to make those witnesses tell their story not to a biased and perhaps comatose representative of the Admiralty but to a jury of ordinary men — above all, to tell it with the public listening. Resisting him in this was Sir Rufus Isaacs, later to become, as Lord Reading, Chief Justice of England, but then — in 1909 and 1910, this was — Solicitor-General and, unbecoming as was the posture into which it threw him, mysteriously compelled by professional tradition to defend the Admiralty’s action at every step.

How to get the case into court? Carson finally had recourse to an antique and long-neglected device known as the Petition of Right. First he had to establish the notion that there had been a violation of contract — a failure of the Crown to keep its part of the bargain implied when, at some considerable expense to his folks and with a binding agreement on his own part to serve as an officer in the Navy once he had been trained for the job, the boy matriculated. But, contract or no contract, a subject may sue the King only under certain circumstances. If he approach the throne with a Petition of Right and the King consent to write across it ‘Let right be done,’ His Majesty can, in that instance and on that issue, be sued like any commoner.

Instead of welcoming such a course as the quickest way of settling the original controversy and even of finding out what really had happened to that fateful postal order, the Admiralty, perhaps from sheer force of habit, resorted to legal technicalities as a means of delay. Indeed, it was only the human impatience of the justices, to whom a demurrer was carried on appeal, that finally cut through the red tape. They would eventually have to decide whether or not a Petition of Right was the suitable remedy, but in the meantime, they asked, why not let them have the facts? Why not, indeed? It was all Carson was contending for. It was all the ArcherShees had ever asked for. Later in the House of Commons, where he was to hear the intervention of the demurrer denounced as a tragic error, Sir Rufus took considerable credit to himself for having bowed to this call for the facts, but he was making a virtue of something that had been very like necessity.

Anyway, the trial was ordered. So at long last, on a hot day in July 1910, — nearly two years after the postal order was stolen and too late for any hope of finding out who really had stolen it, — the case came before a jury in the King’s Bench Division, and the witnesses whose stories in the first place had convinced the Osborne authorities that young Archer-Shee was a thief must, with Sir Rufus vigilant to protect them, submit themselves to cross-examination by the most alarming advocate of the English bar.

By this time the case had ceased to be a local squabble, reported as a matter of professional interest in various service journals but showing up in the ordinary newspapers only in an occasional paragraph. Now it was being treated by the press, column after column, as a cause célèbre, and all the Empire was following it with bated breath. Carson was on his feet in open court speaking for the Suppliant: —

His son was branded as a thief and as a forger, a boy thirteen years old was labelled and ticketed, and has been since labelled and ticketed for all his future life, as a thief and a forger, and in such investigation as led to that disastrous result, neither his father nor any friend was ever there to hear what was said against a boy of thirteen, who by that one letter, and by that one determination was absolutely deprived of the possibility of any future career either in His Majesty’s Service, or indeed in any other Service. Gentlemen, I protest against the injustice to a little boy, a child thirteen years of age, without communication with his parents, without his case ever being put, or an opportunity of its ever being put forward by those on his behalf — I protest against that boy at that early stage, a boy of that character, being branded for the rest of his life by that one act, an irretrievable act that I venture to think could never be got over. That little boy from that day, and from the day that he was first charged, up to this moment, whether it was in the ordeal of being called in before his Commander and his Captain, or whether it was under the softer influences of the persuasion of his own loving parents, has never faltered in the statement that he is an innocent boy.

But these reverberant words had overtones which all Englishmen could hear. Now the case was being followed with painful attention by plain men and women slowly come to the realization that here was no minor rumpus over the discipline and punctilio of the service, indeed no mere matter of a five-shilling theft and a youngster’s reputation, but a microcosm in which was summed up all the long history of British liberty. Here in the small visible compass of one boy’s fate was the entire issue of the inviolable sovereignty of the individual.

III

The Archer-Shees had as their advantageous starting point the inherent improbability of the boy’s guilt. There seemed no good reason why he should steal five shillings when he was in ample funds on which he could lay his hands at will by the simple process of writing a chit. But if, for good measure or out of sheer deviltry, he had stolen his classmate’s postal order, it seemed odd that instead of cashing it furtively he would not only openly get permission to go to the post office, which was out of bounds, but first loiter about for some time in an effort to get a schoolmate to go along with him for company. But this inherent improbability, so visible from this distance, quite escaped the attention of the college authorities who, by the sheer momentum of prosecution, had hastily reached their own conclusion by another route.

When young Terence Back dolefully reported to the Cadet Gunner that the postal order which had arrived that very morning as a present from some doting relative was missing from his locker, the Chief Petty Officer at once telephoned the post office to find out if it had already been cashed. It had. Oh!

There followed a rush of officialdom to the post office and much questioning of the chief clerk, Miss Anna Clara Tucker, first there and later at the college by Commander Cotton, the officer in charge of the investigation. Now, Miss Tucker, had there been any cadets at the post office that day? Yes, two — one to buy a 15s. 6d. postal order, the other to buy two totaling 14s. 9d. And was it one of them who had cashed the stolen order? Yes, it was. Would the postmistress be able to pick him out? No. They all looked so alike, in their uniforms, that she would n’t know one from the other. But this she could tell, this she did remember — the stolen order was cashed by the boy who had bought the postal order for fifteen and six. And which one was that? Well, her records could answer that question. It was Cadet ArcherShee. (He had needed that order, by the way, to send for a model engine on which his heart was set, and to purchase the order he had that morning drawn sixteen shillings from his funds on deposit with the Chief Petty Officer, a sum which would not only buy the order but pay for the necessary postage and leave in his pocket some small change for emergencies.)

Thus to Commander Cotton — Richard Greville Arthur Wellington Stapleton Cotton, who, oddly enough, was later to command H. M. S. Terrible — thus to Commander Cotton, who reported accordingly to the Captain, and he, through Portsmouth, to the Admiralty, it seemed satisfactorily evident that the postmistress was ineluctably identifying Archer-Shee as the thief, or at least as the villain who had converted the stolen goods into cash.

On her testimony the authorities acted — innocently, if you like, and not without later taking the precaution to support it by the dubious opinion of a handwriting expert. But so muddleheaded was this investigation, and such is the momentum of prosecution the world around, that the very first précis of that testimony filed with the Admiralty was careful to omit, as perhaps weakening the evidence against the boy, — so swiftly do departmental investigators change from men seeking the truth into men trying to prove a hasty conclusion, — was careful to omit the crucial fact that at the college next morning, when six or seven of the cadets were herded past her for inspection, the postmistress had been unable, either by the look of his face or by the sound of his voice, to pick out Archer-Shee. This failure became patently crucial when, two years later on that sweltering July day, Carson, with artfully deceptive gentleness, took over Miss Tucker for cross-examination.

The cashing of the stolen order and the issuing of the order for fifteen and six had taken place at the same time? Well, one transaction after the other. Her records showed that? No, but she remembered. The two took place within what space of time? Well, there might have been interruptions. After all, she was in sole charge of the office at the time? Yes. There was the telephone to answer, telegrams to take down as they came over the wire ? Yes, and the mail to sort. These matters often took her away from the window? Yes. Even into the back room? Sometimes. So sometimes, if one cadet should go away from the window and another step into his place during any one of the interruptions, she might not notice the exchange? That was true. And, since they all looked alike to her, one cadet in this very instance could have taken the place of another without her realizing, when she returned to the window, that she had not been dealing throughout with the same boy? Possibly. So that now she could n’t say it was Archer-Shee who had cashed the stolen order? She had never said that exactly. Nor could she even be sure, now that she came to think of it, that the stolen order had, in fact, been cashed by the same cadet who bought the order for fifteen and SiX? Not absolutely sure. That, in effect, — here oversimplified in condensation, but in effect, — was her testimony.

IV

Well, there it was — a gap in her story wide enough to drive a coach through. As soon as he saw it — it would strike a mere onlooking layman that the Admiralty might well have asked these same questions two years before —Sir Rufus knew the jig was up. Wherefore, when court opened on the fourth day, he was soon on his feet announcing that he no longer wished to proceed with any question of fact. It takes no great feat of imagination to guess at the breathlessness in that courtroom as the SolicitorGeneral came to the point: —

As a result of the evidence that has been given during the trial that has been going on now for some days, and the investigation that has taken place, I say now, on behalf of the Admiralty, that I accept the statement of George ArcherShee that he did not write the name on the postal order, and did not cash it, and consequently that he is innocent of the charge. I say further, in order that there may be no misapprehension about it, that I make that statement without any reserve of any description, intending that it shall be a complete justification of the statement of the boy and the evidence he has given before the Court.

In return — perhaps a fair exchange haggled for behind the scenes — Carson went on record as holding the belief that the responsible persons at Osborne and at the Admiralty had acted in good faith and that not even the disastrous Miss Tucker had been wanting in honesty. He had merely sought to show that she was mistaken.

Then, while the jury swarmed out of the box to shake hands with Carson and with the boy’s father, the exhausted advocate turned to congratulate the boy himself, only to find that he was n’t even in court. Indeed, the case was over and court had adjourned before he got the news. When, blushing and grinning from ear to ear and falling all over himself, he went to Carson’s room in the Law Courts to thank him, the great advocate ventured to ask how in his hour of triumph the boy had happened to be missing. Well, sir, he got up late. It seems he went to the theatre the night before and so had overslept. Overslept! For weeks Carson himself had hardly been able to get any sleep. Overslept ! Good God! Had n’t he even been anxious? Oh, no, sir. He had known all along that once the case got into court the truth would come out. Carson mopped his brow. Then he laughed. Perhaps that was the best way to take such things.

Thereafter, of course, the boy’s was not the only attention that wandered. All England may have been watching, but, after all, other current topics were not without their elements of public interest. For one thing, a new King was on the throne. The Edward who had written ‘Let right be done’ across the ArcherShee petition now lay in his tomb at Windsor, and his son George was only just beginning the reign which was to prove so unforeseeably eventful. Then, even as the case came to an end, another was ready to overshadow it. Indeed, on the very day when, on behalf of the Admiralty, Sir Rufus acknowledged the boy’s innocence, Inspector Dew arrived in Quebec to wait for the incoming Montrose and arrest two of her passengers, a fugitive medico named Crippen and his dream-girl, Ethel Le Neve. Even so, thanks to the sounding board known as the House of Commons, neither the public nor the Admiralty was allowed to forget the Archer-Shee case. Indeed, news of its conclusion had hardly reached the House when several members were on their feet giving notice — due notice that England would expect some specific assurance that the lesson had been learned, that never again would a boy be thus cavalierly dismissed from Osborne without notice to his folks or a chance for adequate defense.

In this instance, of course, it was too late for anything but apology and indemnification. ‘This,’ one speaker said with apparently unconscious humor, ‘could be left to the generosity of the Admiralty.’ Another speaker — the honorable member for the Universities of Glasgow and Aberdeen—put it this way: ‘I am quite sure the Admiralty will do all in their power to redress the very terrible and almost irreparable wrong done to the boy, on such a wrong being brought to their knowledge.’ But this confidence proved to be naïve. Month followed month with no word of apology, no word even of regret, and, as for indemnification, no offer to pay more than a fraction of what the boy’s father had already spent in his defense. Indeed, in the fitful discussion on this point, the Admiralty had even introduced the pretty suggestion that the nipping of young ArcherShee’s naval career in the bud had not been so very injurious, because he was not a promising student anyway. It looks, at this distance, like a bad case of bureaucratic sulks.

So in March and April of the following year the attack was renewed. By the quaint but familiar device of moving that the salary of the First Lord of the Admiralty (Mr. Reginald McKenna) be reduced by one hundred pounds, the honorable member for Kingston (Mr. Cave) started the ball rolling. Although the honorable member for Leicester, Mr. Ramsay MacDonald, was so far out of key as to call the motion an attempt to blackmail the Treasury (cries of ‘Shame! Shame!’), the resulting debate went to the heart of the matter and put in memorable and satisfying words just what many decent and inarticulate men had been wanting to have said about the case all along.

The relative passages in Hansard make good reading to this day, because all those who moved to the attack spoke as if nothing in the world could matter more than the question of justice to one small unimportant boy. The wretched legalism of the Admiralty’s evasions received its just meed of contempt, with the wits of Sir Rufus Isaacs matched (and a bit more) by that same F. F. Smith who was later to become Lord Birkenhead and who, by the way, was at the time fresh from the defense of Ethel Le Neve at the Old Bailey. These members, together with Lord Charles Beresford and others, firmly jockeyed the unhappy First Lord into the position where he not only gave assurance that thereafter no boy at Osborne would ever be so dealt with — this he had come prepared to do — but went on record, at long reluctant last, as expressing in this case his unqualified regrets. He even consented to pay to the boy’s father whatever sum a committee of three (including Carson himself) should deem proper. This ended in a payment of £7120, and with that payment the case may be said to have come to an end.

V

The case — but not the story. That has an epilogue. The characters? Most of them are gone. I don’t know whatever became of poor Miss Tucker, but the elder Archer-Shee is gone, and Isaacs and Carson. Even Osborne is gone — Osborne where Victoria walked with Albert and one day plucked the primroses for Disraeli. At least its Naval College has gone out of existence, swallowed up in Dartmouth.

And the boy himself? Well, when it came to him, the author of the epilogue dipped his pen in irony. To say that much is tantamount to a synopsis. If you will remember that the boy was thirteen when they threw him out of Osborne and fifteen when his good name was reëstablished, you will realize that when the Great War began he was old enough to die for King and Country. And did he? Of course. As a soldier, mind you. The lost two years had rather discouraged his ambitions with regard to the Navy. August 1914 found him in America, working in the Wall Street firm of Fisk & Robinson. Somehow he managed to get back to England, join up with the Second Battalion of the South Staffordshire Regiment, win a commission as Second Lieutenant, and get over to France in time to be killed — at Ypres — in the first October of the War.

So that is the story of Archer-Shee, whose years in the land, all told, were nineteen. To me his has always been a deeply moving story, and more and more, as the years have gone by, a significant one. Indeed, I should like to go up and down our own land telling it to young people not yet born when ArcherShee kept his rendezvous with death. You see, I know no easier way of saying something that is much on my mind. For this can be said about the ArcherShee case: that it. could not happen in any totalitarian state. It is so peculiarly English, this story of a whole people getting worked up about a little matter of principle; above all, the story of the foremost men of the land taking up the cudgels — taking up the cudgels against the state, mind you — because a youngster had been unfairly treated. It would have been difficult to imagine it in the Germany of Bismarck and the Wilhelms. It is impossible to imagine it in the Germany of Adolf Hitler. That, over and above all the other reasons of any given moment, is why my heart sinks at the prospect of America having to get along in an era when Europe will be dominated not by England but by Germany. Sinks not for England’s sake only. Or chiefly. But for our own.