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nd freedonly and dirupon whom
imposed; and illegal and cruel punishments inflicted, and several grants and promises made of fines and forfeitures, before any conviction or judgment against the persons upon whom the same were to be levied. All which are utterly and directly contrary to the known laws, and statutes, and freedom, of this realm.
And whereas the said King James the Second having abdicated the Government, and the throne being thereby vacant, His Highness the Prince of Orange, (whom it hath pleased Almighty God to make the glorious instrument of delivering this kingdom from Popery and arbitrary power) did (by the advice of the Lords Spiritual and Temporal, and divers principal persons of the Commons), cause letters to be written to the Lords Spiritual and Temporal, being Protestants, and other letters to the several counties, cities, universities, boroughs, and cinque ports, for the choosing such persons to represent them, as were of right to be sent to Parliament, to meet and sit at Westminster, upon the twenty-second day of January, in the year 1688, in order to such an establishment as THEIR RELIGION, laws, and liberties, might not again be in danger of being subverted. Upon which letters, elections having been accordingly made; and thereupon, the Lords Spiritual and Temporal, and Commons, pursuant to their several letters and elections, being assembled in a full free representation of this nation, taking into their most serious consideration the best means for attaining the means aforesaid, do, in the first place, (as their ancestors in like case have usually done) for vindicating and asserting their ancient rights and liberties; declare,
First.—That the pretended power of suspending laws or execution of laws by regal authority, without consent of Parliament, is illegal.
Second.—That the pretended power of dispensing with laws, or the execution of laws, by regal authority, as it hath been assumed and exercised of late, is illegal.
Third.—That the commission for erecting the late Court of Commis. sioners for Ecclesiastical causes, and all other commissions and courts of the like nature, are illegal and pernicious.
Fourth.—That the levying of money for or to the use of the crown, by pretence of prerogative, without grant of Parliament, for longer time, or in any other manner than the same is or shall be granted, is illegal.
Fifth.—That it is the right of the subjects to petition the King ; and all commitments and prosecutions for such petitioning, are illegal.
Sixth.—That raising and keeping a standing army within the kingdom in time of peace, unless it be with the consent of Parliament, is against law.
Seventh.—That the subjects which are Protestants may have arms for their defence, suitable to their condition, and as allowed by law.
Eighth.—That election of members of Parliament ought to be free.
Ninth.—That the freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament. · Tenth.—That excessive bail ought not to be required, nor excessive fines imposed, nor cruel nor unusual punishments inflicted.
Eleventh.—That jurors ought to be duly empannelled and returned ; and jurors, which pass upon men in trials of high treason, ought to be freeholders.
Twelfth.—That all grants and promises of fines and forfeitures of particular persons, before conviction, are illegal and void.
Thirteenth.–And that for redress of all grievances, and for the amending, strengthening, and preserving the laws, Parliaments ought to be held frequently.
And they do claim, demand, and insist upon all and singular the premises, as their undoubted rights and liberties. And no declarations, judgments, doings, or proceedings, to the prejudice of the people in any of the said premises ought in anywise to be drawn hereafter into consequence or example. To which demand of their rights they are particularly encouraged by the declaration of his Highness the Prince of Orange, as being the only means for obtaining a full redress and remedy therein.
Having therefore an entire confidence that his said Highness the Prince of Orange will perfect the deliverance so far advanced by him, and will still preserve them from the violation of their rights, which they have here asserted, and from all other attempts upon their religion, rights, and liberties; the Lords Spiritual and Temporal, and Commons, assembled at Westminster do resolve, That William and Mary, Prince and Princess of Orange, be and be declared King and Queen of England, France, and Ireland, and the dominions thereunto belonging, to hold the crown and royal dignity of the said kingdoms and dominions to them the said Prince and Princess during their lives and the life of the survivor of them; and that the sole and full exercise of the regal power be only in and exercised by the said Prince of Orange, in the names of the said Prince and Princess during their joint lives; and after their decease the said crown and royal dignity of the said kingdoms and dominions to be to the heir of the body of the said Princess; and, for the default of such issue, to the Princess Ann of Denmark, and the heirs of her body; and in default of such issue, to the heirs of the body of the said Prince of Orange.
And the said Lords Spiritual and Temporal, and Commons, do pray the said Prince and Princess of Orange to accept the same accordingly. And that the oaths hereafter mentioned be taken by all persons of whom the oaths of allegiance and supremacy might be required by law, instead of them ; and that the same oaths of allegiance and supremacy be abrogated.
"I, A. B., do sincerely promise and swear that I will be faithful and bear true allegiance to their Majesties, King William and Queen Mary. So help me God.”
“I, A. B., do swear that I do from my heart abhor, detest, and abjure, as impious and heretical, this damnable doctrine and position,that princes excommunicated or deprived by the Pope, or any authority of the see of Rome, may be deposed or murdered by their subjects, or any other whatsoever. And I do declare that no foreign prince, person, prelate, state, or potentate hath, or ought to have, any jurisdiction, power, superiority, pre-eminence, or authority, ecclesiastical or spiritual, within this realm. So help me God.”
The following are the proceedings of the Court Martiat to their opinion and sentence on the first Trial.
The Prisoner closes his defence without calling evidence.
The Prosecutor asks till to-morrow at twelve o'clock, to prepare his reply, which is granted.
The Court adjourns till to-morrow the 1st of April, at 12 o'clock.
Thursday, 1st of April, 1824. The Court meets pursuant to adjournment at 12 o'clock. * The Prosecutor asks permission for the officiating Judge Advocate to read his reply, in consequence of his indisposition. The reply read by the officiating Judge Advocate.
PROSECUTOR'S REPLY: Mr. PRESIDENT AND GENTLEMEN, Notwithstanding the very widely diffused manner in which the Prisoner has gone over the grounds of his Defence, it appears to me that there is little necessity for any reply on my part, reference being made to the charge as it stands before the Court, and to the evidence by which, that charge has been supported.
Having in my opening of this case mentioned obedience to command as a chief military virtue, the Prisoner has strangely inferred that such a principle, if fully acted upon, might lead to the justification of mutiny, or any other military crime, this misconception of my meaning on his part compels me to observe, that in addressing a Court entirely composed of military men, I could not expect any misapprehension to arise from an expression so simple and concise, which could only refer to obedience
as forming the most essential branch of military discipline; to obedience as understood in the army, as viewed by all the writers on military law, and as generally known and acted upon in his Majesty's 'service.
It is for a breach of duty on this essential head, not in its passive but in its active sense, that Capt. Atchison has been arraigned; and it is to his conduct as set forth and characterized in the charge, that the attention of the Court has been called under the evidence produced. And with the Court it now rests, without requiring much further observation from myself (which the simplicity and narrowness of the case necessarily exclude) to say whether that charge has, or has not, been substantiated.
Though the Prisoner's defence may seem to embrace a variety of points, it appears to me (and in this light only I shall reply to it) as presenting one principal feature only, namely, that he anticipates a justification of his conduct under the charge exhibited against him, on the presumed ground that the duty he was required to perform was neither military nor lawful ; and, consequently, that the orders he received, in which that duty was enjoined, were likewise neither military nor lawful. .
In placing the question in this point of view, the Prisoner has left the case to stand before the Court fully proved as to all its facts ; and, as to those facts, quite unanswered.
He has, in order to rest his own defence on the grounds I have referred to, admitted all the essential parts of the charge against himself, presuming to trust his case to an assumption to which I feel no difficulty in replying, and which I trust I shall completely refute.
Speaking of the order, as a 'military one, I have only to refer the Court to the evidence of his commanding officer, Major Addams, by whom the order for the salute was given, and to that of Lieut. and Adjutant Somerville, through whom it was conveyed, coupled with the known circumstances of similar salutes having been invariably fired by the Royal Artillery since this island has been in His Majesty's possession.
As to the legality of the order itself and of the duty it prescribed, I have only to observe that the lawfulness of any act may be ascertained by looking to the actual existing laws and customs of the place in which such order is issued, and in which such duty is required to be done.
Now, whether we consider the firing of this salute in reference to the civil government of Malta and to its local laws and usages, or in reference to that island as a British garrison, I shall venture to maintain that the authority required for such a salute by either law, whether civil or military, was complete ; and in shewing full authority for any act, whatever it be, I shew at the same time the lawfulness of the act when done...! The Prisoner cannot deny but that the salute in question was approved and authorized by the civil government, by which a request was made in the ordinary channel for its being carried into effect by the military authority. This request was approved by the Major-General commanding, and the usual orders were given on the occasion ; thus, whether the civil government of Malta be referred to, or its highest military authority as a garrison, the fullest sanction which any law can give for any act whatever is found in the present case; an authority so complete that the idea of the duty in question being unlawful must remain for ever excluded from every mind, unless the matter be put in the singular position given to it by the Prisoner.
Unlawful acts, of whatever description, can only be committed under liability to concommitant punishment...Could the Prisoner, I would ask you, Mr. President and Gentlemen, have been made amenable before any tribunal whatever, whether civil or military, if in the discharge of his duty as an officer he had proceeded to execute in the present instance those orders which were given to him by his superior ? It is utterly impossible that such could have been the case. Before a civil court he had not only the laws and usages of the country he was in for his justification, but he had more: he had the approbation and authority of the Lieutenant Governor, in whom for the time being the Government, as well legislative as executive, was combined ; and this too, not as applying generally to the subject, but as specifically and most immediately touching the very matter before him. What more full and complete sanction and authority can any subject in any country, and under any government, require ;-Before a military court it is needless to say (as I am now addressing such a tribunal) wbat sanction and indemnity he might have urged and enforced, if charged before it for the commission of an offence in firing that salute, for the not firing of which he now stands arraigned.
These arguments I presume to urge as a complete answer to Capt. Atchison on the subject of lawful or unlawful orders; and, consequently, as no less an answer to his observations on his own responsibility, in the event of his having complied with the orders in question.
This responsibility, whether the case be civilly examined or treated in a military sense, I own I can neither see nor comprehend under any of the Prisoner's reasonings. I can only perceive that he has vainly endeavoured to constitute offence where no offence has been found in the law, whether expressly or by implication; and that, consequently, he has imagined a responsibility equally without existence; and which, in fact, no process, whether civil or military, either in this island or in the mother country, could have brought home to him under the utmost ingenuity or