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I have the honour to transmit my Defence to you, with other docu..ments relative to this trial, which I request you will have the goodness to -lay before whatever authorities have to judge of my conduct, as represented in the Proceedings of the General Court Martial.
Letter, No. I.,* is a complaint preferred through the Officiating Deputy Judge Advocate to the Major-General commanding, at the manner in which my Charge was made out ; with a request to have the same rectified. Letter, No. II., shews that my request could not be complied with.
The next document is my Defence.--I have marked in it all the passages which the Court ordered to be expunged ; also, some which were read in Court and not objected to, and have been expunged, from mistake, I imagine.
I applied for eight or ten days in which to draw up my Defence;from the quantity and nature of the matter I had to plead, and from my weak state of health ; and afterwards said, seven days was the least I could do with.
The Court gave me only six days. The consequence was that I did not complete my Defence in several of its parts; and having matter to prepare to nearly the last moment, I could neither superintend what was transcribed, nor have an opportunity of calmly reviewing either the whole or some of its parts. I had not read the Defence once through when the officer arrived to conduct me to the Court; and I went into Court with an entire part of the last head of my Defence deficient, though the most of it was nearly prepared for insertion ;-and also knowing there were passages misplaced, and some omitted which I felt to be essential to their subjects.
I have rectified one misplaced passage, as mentioned in Court ;—and while feeling that it would be in the highest degree wrong to add to or alter a sentiment which might affect the grounds of the Court's present decision, I have thought myself at liberty to add two omitted passages to the subject not allowed to be read, and which was expunged; as I have reason to think I should have supplied them in Court had I been permitted to proceed without interruption. I have marked them as added; and I think it will be obvious they form a part of my train of thought, and are necessary to illustrate my views of the subject.
I have allowed all the expunged papers to remain with the Officiating Deputy Judge Advocate, in order that the integrity of what I now send to you may be proved.
I have to add to what I have stated respecting the Court's decision to
* Inserted at the commencement of the Proceedings.
expunge an entire subject from my Defence,-that I consider it was a just subject of defence, and essential to my cause, to set forth the objects named in the orders which occasioned my remonstrance, and the principles with which the objects came in contact, in their true force and bearing on the charge (both being mentioned in the evidence ;-see Letters in Evidence, Nos. I. and III.) by exhibiting the great sinfulness of the acts which I was required to promote, and the paramount obligation of the principles which I had requested might be respected.
It also appears to me that the Court's decision to expunge the citations with which I wished to support my Defence will not only take from themselves an important means of judging of the true state of the question ; but that it also would debar me from the advantage they are calculated to produce on the minds of the authorities who have, afler them, to judge of my case, had I not been able to send them with this appeal from their decision.
I have the honour to be, Sir,
Your most obedient servant,
(Signed) THOMAS ATCHISON, Rt. Hon. John Becket,
Capt. Royal Artillery. &c. &c. &c.
Judge Adv. Gen.
Military Secretary's Office,
Malta, 18th July, 1824. I have the honour to transmit you herewith a copy of a letter* I have received from the Judge Advocate General.
I have the honour to be, Sir,
Your most obedient humble servant, Capt. Atchison,
C. BAYLEY. Royal Artillery.
* This letter is the second inserted in the following Proceedings.
PURSUANT to a General Order of the 16th inst. the Court re-assembled this day, the 21st July, 1824. The Court being called over, the following members appeared, viz.
PRESIDENT. Colonel Francis Rivarola, of the late Sicilian Regiment, and Lieut.
Colonel of the Royal Malta Fencibles.
18th Rgt. Capt. MATTHEW FORSTER
Major PerciVAL, 18th Rgt., (the absent member,) died May 8, 1824. The Court clears.
The following letter from the Judge Advocate General, addressed to Captain Bayley, the Officiating Judge Advocate, was read, and the Court agreed that it should be inserted on the Proceedings.
Downing Street, 31st May, 1824. SIR, I have to acknowledge the receipt of your letter of the 9th ult. accompanying the proceedings which were had upon two General Courts Martial, held at Malta in March last, for the trials of Capt. Thomas · Atchison and Lieutenant Francis Dawson, of the Royal Regiment of Artillery.
ideration licers above "revision bec
I regret to be under the necessity of returning these Proceedings, (which I take the first opportunity of doing) in order that they may be revised. The ground upon which a revision becomes necessary is this, viz. :—that the two officers above named, whose cases were brought under the consideration of the Court Martial, do not appear to have had a full, fair, and legal trial.
In the case of Lieutenant Dawson, who was first tried, there appears to be no defence whatever entered upon the Proceedings in his case transmitted to me with your letter; and the precise reasons why do defence is to be found therein are stated at pages 175—178 of the Proceedings themselves.
The substance of what passed in Court, as there recorded, is that the Court decided not to hear certain statements in defence, which the Prisoner insisted upon his legal right to urge as a justification against the charges; and that the Court persisting in the opinion they had formed, not to receive those statements, the Prisoner withdrew his Defence altogether.
The fact cannot therefore be controverted that the Prisoner withdrew his Defence in consequence of the decision of the Court not to hear what he pressed upon them to listen to; and if the statements in defence so offered by him were not illegal as such, then it follows that they were improperly rejected, and consequently that the trial has not been regular, and the sentence of the Court cannot be sustained.
The written Defence which Lieut. Dawson proposed to make to the Court, and which he withdrew, has been transmitted to me entire by that officer; and, having carefully perused the same, I am bound to say, that after the fullest consideration of the reasons which induced the Court to limit the Prisoner in his course of defence, in the manner they have stated, their decision cannot, in my opinion, be supported. The allegation of the Prisoner that his Defence was, strictly speaking, legal, cannot, I apprehend, be denied ; and, not being illegal, I think the Court were bound to hear it. · In cases where the terms of a defence are contemptuous towards the Court, the members thereof would certainly not be bound to sit and hear it: but the Defence in question, made by Lieut. Dawson, is not stated to have been of that character.
However pertinacious that officer may have been as to his right to read the whole of what he had prepared by way of defence, the Court do not allege that his Defence was otherwise than decent and respectful in its terms towards the Court itself. Moreover, the decision of the Court, (see page 180) “ that the Prisoner was at liberty to REFER to the chapter and verse of any book, but not to READ extracts from religious
" works," would seem to be arbitrary, and inconsistent with itself; for when matter is admitted, by permission to refer to it, to be pertinent, it is of the essence of any Defence that the party should be permitted also to explain the application of such matter to his own particular case.
I am of opinion, therefore, that the Court have come to their decision in this case prematurely. It was their duty to hear the whole Defence, (the same not being illegal) in order that they might judge, when it was laid before them, which they could not otherwise do, whether it could be considered as an answer to the charges or not.
It was competent undoubtedly to the Court to caution the prisoner as he proceeded, if they thought proper; and to state to him that, in their opinion, such a line of Defence as he was pursuing would probably not weigh with them, or operate in his favour: but to decide against hearing him state at all arguments, which notwithstanding such caution, he might persist in putting forward as grounds of justification or extenuation, (such arguments not being illegal in themselves) was going beyond what any Court would be warranted in doing. · For these reasons, this case must undergo revision; the Court will accordingly be re-assembled ; and the prisoner's Defence must be heard throughout. Whatever might be the force and effect of the Defence on the minds of the Members of the Court, it ought to have been listened to, and entered on the minutes of the proceedings, which must therefore be revised for this purpose.
The proceedings being revised, in order that a document so importánt to the prisoner may be admitted and entered, the Sentence must of course undergo revision afterwards.' The Court will then have proceeded to their decision correctly; and the prisoner will have no ground of complaint.
It only remains for me to observe that, in the incomplete state of these proceedings, as they stand at present, for the reasons I have stated above, I have not felt it my duty to lay them before His Majesty.
In the case of Captain Atchison, although the course and termination of the proceedings of the Court do not appear to have been precisely similar to what occurred in that of Lieutenant Dawson, who was first tried, still the principles and the reasoning which render a revision necessary in Lieutenant Dawson's case apply so entirely to the case of Captain Atchison also, that it appears wholly unnecessary to repeat them. The Court is bound to revise the proceedings in both cases on this ground; viz. that the prisoners have not been permitted to state in their Defence the whole of what, according to law, the Court were bound to hear and record before they proceeded to deliberate and pass judgment therein. - You will lose no time in communicating upon this subject with Sir