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misapplication of the law, whether it be the law of this island or that of Great Britain, or the whole military code.
In the present case the Prisoner has taken a most exaggerated view of the duty he was ordered to perform, so much so as to convert it into a positive offence; he then takes upon himself the no light responsibility of not doing that duty; and, finally, in his justification, resorts to a line of argument utterly inapplicable to his case, and only applicable to extraordinary circumstances, bearing no similarity whatever to the subject matter of the present enquiry.
In doing this I cannot but observe, that while he has disclaimed the idea of acting on his own private judgment, or of offering his own individual opinion, he has done nothing more than exemplify by his Defence the very individual line of action he says he would avoid ; for beyond his own assertion I do not perceive that he has offered to the Court any argument or inference which might lead it to concur with him in the unlawfulness of the orders he received, whether in a civil or in a military point of view. On the contrary, I cannot but observe, that his own mode of treating this question is met and answered by his own remarks on the danger of allowing individual opinion in the army to prevail over its known laws or usages, which would tend, as he has observed, to make any member of the army the servant of an upper servant; while in his own case this mode of argument, as conducted by himself, leads to this further discordance, that it would render the under-servant the judge of his immediate, and even of his remote, superiors.
It was certainly my wish, Mr. President and Gentlemen, to have observed in this reply the same brevity to which I limited my opening address : but, as the Prisoner's Defence has been so extensive, and as the reasoning which it contains is occasionally sound in itself, though at the same time irrelevant and inapplicable to his case, I have considered it my duty, as Prosecutor, in my official capacity to offer these few remarks to your consideration, before you proceed to the final discharge of your sacred duties.
(Signed) GEORGE RAITT,
D. A. G. The Court closes, and deliberates.
Four o'clock, P. M. The Court adjourns till to-morrow, the 2d April, at twelve o'clock.
Friday, 2d April, 1824. The Court meets, pursuant to adjournment, at twelve o'clock ;-deliberates, and closes its proceedings on this trial.
The Court adjourns till Monday, the 5th April, to read and sign fair copy of proceedings.
OPINION AND SENTENCE.
The Court, having most maturely and deliberately weighed and considered the evidence adduced in support of the prosecution against the prisoner, Capt. Thomas Atchison of the Royal Artillery, as well as what he has offered in his Defence, is of opinion, that he is guilty of the charge preferred against him, diz.“ Disobedience of orders, insubordinate and unofficer-like conduct, in
6 not carrying into execution the orders that were conveyed to him “ by letter from Acting-Adjutant Somerville, on or about the 9th of “ August last, desiring that he would give directions for firing salutes
“ at Fort St. Angelo on the 9th and 10th of that month ;“ And for writing a letter dated the 9th of August, addressed to Major
Addams, his commanding officer, hesitating and remonstrating against “ carrying the said orders into effect;"
The above conduct being highly subversive of military discipline, and holding forth a most dangerous example to the British army;
Being in breach of the Articles of War,-does therefore sentence him, the Prisoner, Capt. Thomas Atchison, of the Royal Artillery, to be DISMISSED his Majesty's service.
Col. & President. C. BAYLEY, Capt. Officiating Judge Advocate. ,
The Court moreover feels itself called upon to animadvert in a particular manner on the conduct of Brevet-Major Addams of the Royal Artillery throughout; as in all probability the spirit of resistance, as set forth in evidence, might have been checked and put down in its origin, but for the indecision on the part of that officer, as then commanding the Royal Artillery stationed at Malta.
(Signed) F. RIVAROLA, C. Bayley, Captain,
Col. & President. Off. J. Advocate.
(The following Letter represented to the General Officer in command the conduct of the Court regarding my Defence, and requested that a copy of it entire might accompany the proceedings to England.)
Malta, April 3d, 1894. SIR, Having objected to that judgment of the Court Martial, before which I have been tried, which required me to expunge certain passages from my Defence; and when I consented to proceed without these passages, having reserved to myself the liberty of referring the point I objected to to higher authority, as is shewn by the proceedings. [Wednesday, 31st March.]
I have the honour to request you will lay before Major-General Sir Manley Power the following grounds by which I consider I have a claim to have all the matter I think necessary to be urged in my defence brought before, not only the Court, but those higher authorities who have afterwards to judge of my conduct, whatever the decision of the Court may be.
Under such circumstances I can only request the Major-General will have the goodness to receive from me a copy of my entire Defence, to be transmitted with the proceedings of the Court to his Majesty's Judge Advocate General, together with this letter, as explanatory of the transaction.
My first ground for believing the judgment of the Court is not correct in stopping and expunging from their proceedings an argument in my Defence arises from the well known practice of all Courts, which have a rule to hear all matter which a prisoner urges in his defence, provided there is nothing unlawful in it.
In the present case the Court stopped the second head of my Defence, after I had shewn its necessary use in my argument; and had especially dwelt on its importance to me in another point of view, viz.—to convince the Court, and all who may have to judge of my conduct, that I have not been actuated by a spirit of bigotry or obstinacy, but that my conduct had arisen from such a rational and conscientious view of the things to which I objected, as would satisfactorily account for what I had done.
The Court admitted the subject in the sketch of the argument,--and heard and admitted this ground for its use : for they retain these passages on its Proceedings, and yet, when I come to the subject, it is stopped.
It appears to me that the evidence before the Court in Mr. Greig's letter, and my letter of remonstrance, fairly mooted the subject before the Court as matter of defence; and that I had a right to argue on this evidence, and use it in any way that appeared most beneficial to me.
Besides which, the tenor of the whole proceedings previous to the trial, as shewn in evidence, are such as not only to deny my right to the exercise of my Protesting conscience on these subjects ; but as coming from such high authority, to deny the very existence of such principles as those which actuated my conduct ; so that I consider I had the additional right of asserting our national principles, not in the abstract, as in our creeds, but in their practical, their influential operation.
Upon the Court's decision to stop and expunge the authorities I wished to read in the body of my Defence, I would remark, that unless I had been allowed to read them immediately after the argument which I wished to have supported by them, I could not expect they would be of the use intended, first,-from being separated from the argument; and, secondly, though referred to, it did not follow that they certainly would be read either by the Judge Advocate to the Court, or by all its members individually; when I considered it was essentially necessary for my cause that I should press these authorities upon the minds of the whole Court, both in their connexion with the argument, and in that train which would make these authorities strengthen each other in my, favour.
Added to which, any difficulty in finding out the passages, with the time which would be consumed in so doing, would be a sufficient cause to expect they would be neglected.
I consider this rule as bearing particularly hard on the last head of my Defence, on which, employing only authorities to assert my right, when these were expunged, this main point of my Defence was left to fortuitous circumstances; and the application, which I wished to make of them in my appeal to the Court, might have been worse than nugatory; it appear. ing only as a piece of idle declamation, because the matter referred to was not on the minds of those addressed.
I expressly said to the Court that their decision in this case must have the effect of making me appear as a fool to themselves and the public, as no one could tell to what things I was referring, but by surmise.
I may be allowed to say, that having to contend before a Court which I had a right to expect would be only intelligent judges of all I had to plead in defence of my character and situation in life; that meeting with such checks is one of the most distressing and discouraging circumstances that could possibly occur to any one so situated ; such that I trust will never again be the lot of any British officer.
Having thus experienced the practical disadvantages of these judgments of the Court, namely, to exclude one branch of my argument, and to take from me the liberty of using my authorities according to my own views of what was best for my Defence, I am assured they cannot be
right; for all the rules of courts of justice have for their end substantial justice, and to give a prisoner the utmost advantage consistent with justice.
I cannot conclude without expressing my sense of the marked kind. ness of the Court to me in every other respect: I only appeal from the effects of what I consider to proceed from an erroneous judgment.
I have the honour to be, Sir,
Your most obedient servant,
(Signed) THOMAS ATCHISON, Capt. Bayley,
Capt. Royal Art. &c. &c. &c. Officiat. Dep. Judge Adv.
Military Secretary's Office,
Malta, 3rd April, 1824. Sir, I have the honour to acknowledge the receipt of your letter of yesterday's date, which, agreeable to your request, I have laid before MajorGeneral Sir Manley Power, and I am directed by the Major-General to acquaint you that the request therein contained cannot be acceded to.
I have the honour to be, Sir,
Your most obedient humble servant,
(Signed) C. BAYLEY, M. S. Capt. Atchison, Ri. Artly, .
&c. &c. &c.
[Letter to Mr. Becket, Judge Advocate General, in London, sent with a copy of the entire Defence, after Major-General Sir Manley Power had refused to forward it.]
Malta, 9th April, 1894. Sir, The General Court Martial before which I have been tried having prevented me bringing forward certain matters which I thought essential to my Defence, and having ordered that the matter objected to should be expunged from the proceedings, to which acts I submitted, reserving to myself (as appears by the Proceedings) liberty of referring the point to higher authority. And having represented the same by Letter, No. III., to Major-General Sir Manley Power (accompanying this) requesting he would forward a copy of my entire Defence with the Proceedings, giving also my reasons for my appeal ; which request he refused, as seen in Letter, No. IV.