failure to do the utmost with indulgence, if without approval.  In the stringent and awful emergencies of war too much is at stake for such easy tolerance.  Error of judgment is one thing; error of conduct is something very different, and with a difference usually recognizable.  To style errors of conduct “errors of judgment” denies, practically, that there are standards of action external to the individual, and condones official misbehavior on the ground of personal incompetency.  Military standards rest on demonstrable facts of experience, and should find their sanction in clear professional opinion.  So known, and so upheld, the unfortunate man who falls below them, in a rank where failure may work serious harm, has only himself to blame; for it is his business to reckon his own capacity before he accepts the dignity and honors of a position in which the interests of the nation are intrusted to his charge.

An uneasy consciousness of these truths, forced upon the Navy and the Government by widespread shortcomings in many quarters—­of which Mathews’s battle was only the most conspicuous instance—­resulted in a very serious modification of the Articles of War, after the peace.  Up to 1748 the articles dealing with misconduct before the enemy, which had been in force since the first half of the reign of Charles II., assigned upon conviction the punishment of “death, or other punishment, as the circumstances of the offence shall deserve and the Court-Martial shall judge fit.”  After the experiences of this war, the last clause was omitted.  Discretion was taken away.  Men were dissatisfied, whether justly or not, with the use of their discretion made by Courts-Martial, and deprived them of it.  In the United States Navy, similarly, at the beginning of the Civil War, the Government was in constant struggle with Courts-Martial to impose sentences of severity adequate to the offence; leaving the question of remission, or of indulgence, to the executive.  These facts are worthy of notice, for there is a facile popular impression that Courts-Martial err on the side of stringency.  The writer, from a large experience of naval Courts, upon offenders of many ranks, is able to affirm that it is not so.  Marryat, in his day, midway between the two periods here specified, makes the same statement, in “Peter Simple.”  “There is an evident inclination towards the prisoner; every allowance and every favor granted him, and no legal quibbles attended to.”  It may be added that the inconvenience and expense of assembling Courts make the executive chary of this resort, which is rarely used except when the case against an accused is pretty clear,—­a fact that easily gives rise to a not uncommon assertion, that Courts-Martial are organized to convict.