Part 20

“In the year 1782, this gentleman had a garrison under his command, as I have stated, in which there were the several officers whose names and whose commissions I have already mentioned; I believe the whole military force under his command consisted of at least 140 or 150 men. The garrison had been, for some time prior to the period at which he announced, in public orders, that he was about to depart from the garrison (and which departure was so announced as immediately about to take place on the 11th of July), put under short allowance in point of provisions. That measure was, I presume, adopted from fair and proper reasons of prudence and probable necessity. The men who had been put under such short allowance, and who were thus restricted in point of supply, in the articles of usual and necessary consumption, with a view to general convenience and the eventual safety of the garrison, and in order merely that the existing stock of provisions might last out till a farther supply might arrive, were at all times very properly allowed some compensation of a pecuniary kind, on account of their reduced allowance in point of actual provisions. The gentleman at the bar had announced his departure, as I stated before, for the 11th of July; there was also about to depart, at the same time, with him for England, the ensign of the name of Deering, the paymaster of the garrison. In the hands of that person were, of course, these stoppages, and these stoppages were usually commuted with the men, and compensation made to them on account thereof, either in money or in that which was, for the purpose of supplying their immediate necessities, equivalent to money—that is to say, articles of convenient barter and truck at that place. When Ensign Deering, the paymaster, upon whom the garrison had demands for their short provisions, was so about to depart, the garrison was, of course, anxious that their account with him might be settled; and as the period of his departure drew so near, it will be given you in evidence that a considerable number of the soldiers who had demands of this kind had resorted to the house where the paymaster lived, in order to obtain the payment of them. For what reason Governor Wall mixed himself in the consideration of these short allowances—what personal reasons he might have to interpose himself between these men and the application for a settlement and adjustment of the claims made by them on this account, I am not apprised—at least, I shall not suggest any to you. The application was made, as I have stated, by those persons in considerable numbers; they resorted to the house of Mr. Deering, and were desirous of having satisfaction for their pay before he should leave the island, which was to be on the day following. After that period a vast ocean would separate them from their debtor; and, considering the precariousness of human life, and particularly in that unhealthy settlement, if they did not press their demand at that period, it is possible they might not be in a situation afterwards to urge it with any beneficial effect to themselves.

“Upon their coming in a considerable number, as you will have it in evidence, towards the house of the paymaster, and when, in doing so, they passed by the governor’s house (who lived in the way to the paymaster’s), and were going on to the paymaster’s, it appears that Governor Wall came out, and with language of some anger reprehended the men for resorting to the house of the paymaster upon this occasion, and ordered them, with some menaces of punishment, to go away; the men, as it is stated to me, and as I shall lay it before you in evidence, retired dutifully upon this admonition. About an hour and a-half afterwards, several persons came; whether they were the same who came before I know not, but one of them was the deceased Armstrong, whose death, and the causes of whose death, are alone now in question before you,—I say alone, for I would wish and desire you to lay out of your consideration any circumstances which point at the supposed death of any person. If you happened to be in court, and heard any indictments read, upon any former occasion, which were applicable to the deaths of any other persons, I request you to lay that matter wholly out of your attention; for we are to confine our attention merely to the circumstances and cause of the death of Armstrong, and no other circumstances will be gone into but such as are immediately connected, in point of fact, with the death of that person. If, indeed, subsequent transactions connecting and inseparably mixing themselves with matters which respect the deaths of other persons should necessarily, in point of fact, make a part of our proof in respect to the charge now before you, these facts are not shut out from us, in point of legal use and application, because they may conduct to, or in themselves make a part of, the proof of any other substantive crime conjointly with the present: but no substantive crime, except the one charged in the indictment, and which you are sworn to try, can come immediately and properly under your consideration for the purpose of affecting the prisoner upon this occasion.

“Gentlemen, I have stated the appearance of the soldiers upon their first application. Upon a second application to the paymaster for their pay, Armstrong (the deceased) appeared with the persons who were making that application. Governor Wall came out to them again from his house, and I do not think that, upon this occasion, he used the language of menace which he did before, but he spoke to the deceased Armstrong; and Armstrong, as it will be given you in evidence, by a person who had the best means of knowing and seeing all that passed, being the orderly serjeant immediately attendant upon the person of the governor the whole of that day, this person of the name of Armstrong, so far from behaving in any undutiful and disrespectful manner, or from manifesting any disregard to the command of his lawful superior, pulled off his hat, and bowed with all proper deference to him; and then, without entering into any contest as to the right to make the application they were about to make, having merely stated that they came there in order to settle with the paymaster, upon receiving an intimation from the governor that what they were doing ought not to be done, he respectfully retired; and from that period (if there be truth in the evidence I have to lay before you) till the period of the punishment which was afterwards on that day inflicted upon Armstrong, and which punishment is charged to have been the cause of his death, there did not exist in the place the least symptom of tumult, discontent, riot, disorder, or anything that bore the appearance of mutiny, or disobedience to the lawful commands of a military superior....

“The application for pay was made in the morning by the soldiers to the paymaster, who was about to depart; there was an interval, respecting which it will certainly be incumbent upon Governor Wall to give some account in evidence, and to show that it did not entirely pass in tranquillity and quiet. Why, if there was anything that required investigation, was it not filled up and occupied, as far as it might be, by some forms of trial? Upon this subject there is an entire silence. We hear nothing with respect to these men, or to any transaction in the island in which Governor Wall is concerned, till the evening or towards the evening of that day. Somewhere towards six o’clock, I think, it will be in evidence that the drum beat what they called ‘the long roll,’ which was for calling the soldiers upon the parade. The orderly serjeant who attended Governor Wall will state to you that this was beat by Governor Wall’s direction; the men who immediately attended were ordered to fall into their ranks as they were, unarmed; several in their jackets, as they happened to be, without waiting for that preparation in point of dress which would have fitted them for their ordinary appearance upon the parade upon any other occasion; they were then ordered to form a circle upon the parade, Captain Lacy, Lieutenant Fall, Ensign Ford, and Lieutenant O’Shanley being present. The circle being formed, the witnesses will state that some conversation passed, in their presence, between the officers, there being, I think, at the same time, brought forward upon the parade a gun-carriage, and persons attending to perform the office which was presently afterwards performed by them.

“After a short communication (a few words only having passed) between the governor and the officers assembled there, whom I have already mentioned, this man, Armstrong, was ordered by Governor Wall to be stripped. He was accordingly stripped, and was then tied to the gun-carriage; black men came forward—not the persons who usually apply military punishment, but black men came forward—and began to inflict the punishment which was ordered; they changed about, each took his turn; each, I think, inflicting twenty-five lashes, till the number of eight hundred lashes had been completely inflicted upon the body of this unfortunate person. Punishments of this sort are usually inflicted by drummers or other soldiers of the regiment. It was in this instance, you observe, inflicted by black men ordered to attend there for that purpose; and this punishment was not inflicted with the usual instrument with which military punishments are inflicted, which is a cat-o’-nine-tails, formed, as I understand, of a log line of about one-eighth of an inch in thickness, but with a rope of one inch in diameter; one of the very ropes used on the occasion, or one at least exactly resembling it, but I believe one of the ropes themselves (and from circumstances I have little reason to doubt its identity), will be exhibited to you in evidence. During the time of inflicting this punishment, I am instructed it will be proved to you that Governor Wall urged these black men to the performance of their task in language which it will be enough for you to hear once from the mouths of the witnesses; very harsh expressions are stated to have been used by him, some of which I would gladly be spared the mention of, that he several times called out “Cut him to the heart! Cut him to the liver!” that Armstrong begged for mercy, and that Governor Wall then said that the sickly season was coming on and that this punishment would do for him. That after receiving a great number of lashes Armstrong was conducted to the hospital; that he was in a situation which made it probable that his death would be the consequence of what he had suffered. Accordingly, at periods some time subsequent, you will hear that he made declaration, which, if they appear to be (and which will be a question for the judgment of their lordships) declarations made under the expectation and belief of an immediately impending dissolution, and with that solemn consciousness of duty which belongs to that awful situation, a situation which places the mind under sanctions at least tantamount in point of obligation to tell the truth, to what are impressed upon it by the solemnity of a judicial oath; you will in that case hear, as proceeding from this man, a declaration that he expected his death, and that he had been punished without any form of trial, and without having committed any offence whatever; this evidence, under the circumstances I have supposed, will be undoubtedly competent, and if it comes under those views, I shall be able to lay it before you.

“After this punishment had been inflicted upon Armstrong—I will not, however, travel into circumstances which relate to any other person; I close the business of the punishment, as far as respects Governor Wall, here. On the next day, as he had announced his intention to do, Governor Wall, together with Ensign Deering, the paymaster, an officer who is not now living, and Major Phipps, took his departure for England.

“There may be circumstances—it will be for Governor Wall to show that such circumstances existed—which may constitute a sufficient, adequate, and full defence for a military officer in the infliction of punishment without either a general or a regimental court-martial; for if there be that degree of imminent necessity which supersedes the recourse to any ordinary tribunal, if there be actually existing that flagrant mutiny which must either be suppressed by force, and by the immediate though irregular application of severe punishment, or must be left to rage uncontrolled at the utmost peril of public safety, that which I was just now pronouncing to be irregular becomes, if the more regular and appropriate course of proceeding in such cases cannot be resorted to, itself regular and capable of being justified upon every principle of public duty; for it imports the public safety that the means of resisting an enormous and over-bearing evil should be as strong, sudden, and capable of application as the evil itself is capable of immediate mischievous effect, and if this has been the case here it will carry its own justification with it.

“Gentlemen, upon this occasion, therefore, it will be most important for the prisoner to establish that there existed, in point of fact, a mutiny. When he has established in point of fact (if he can do so) that there existed a mutiny, if he can go farther and show that the ordinary modes of trial could not be resorted to, and that upon conference with the officers, that which on the emergency was thought best to be done was done, and that there was no wanton abuse of power in the infliction of punishment, the prisoner will be entitled to go quit of the charge made upon him by this indictment. But if, instead of that, it should appear to you that there existed no crime in the deceased, that there was, in fact, no trial of him, where trial might have been had if crime had existed; if it shall appear to you that there was not only neither crime nor trial, but that, in addition to the absence of both crime and trial, there was much malignity of motive influencing the conduct of this gentleman to impute crime and to deny trial to this unhappy sufferer, I am afraid the contrary of that conclusion to which I was just now leading you must, in the proper discharge of your duty, become to....

“If the prisoner can make out such a defence, if he can make out substantially the crime of mutiny, I should be sorry to press him with the non-observance of any of the minor forms of trial, that is, supposing that there existed the crime of mutiny, and that the crime was announced to the party charged therewith, and that he had any opportunity for his defence against it. But if there existed no crime, if none was charged at the time, if a silence is observed by the prisoner respecting the existence of any such crime at the time when, upon his return, he should have announced both it and the rigorous measures he had been obliged to adopt thereupon, to those to whom he was immediately accountable for the conduct of his government; if you find, in contradiction to the idea of any supposed mutiny, that he ventured to withdraw himself from his government at a moment when it would have been in violation of every duty which he owed his Majesty’s service as a soldier and an officer so to have done, if a mutiny so dangerous as to supersede the necessary forms of law had existed on the very eve of his departure, and might be supposed not to have been even then fully suppressed, he will, in that case, have a difficult task of defence thrown upon him. If, however, he can, upon the whole, give reasonable evidence of delinquency on the part of the person upon whom this punishment was executed, and a reasonable degree of necessity for executing it at the time and in the manner and way in which it was executed, God forbid, not only for his own sake, but for the sake of the discipline of the army and for the safety of us all, which in some degree depends upon the due enforcement of order and obedience in every department of public service, God forbid that a hair of his head should be touched. But if, after all, the charge of mutiny shall evidently appear to you to be but a pretence brought forward to cover a malicious and unauthorised act on his part at the time when it was done; and if, from all the concomitant circumstances, if, from circumstances immediately consequent upon the act at the time of his return—if, from his flight shortly after that period, and his not proceeding to trial when the witnesses, who he would have you to believe could have spoken immediately and effectually to his justification, were living and capable of being produced—if from these and other circumstances your minds shall be induced to form a conclusion wholly adverse to the prisoner; and if the facts shall fairly warrant you in so doing, however painful the result may be to the prisoner at the bar, his relatives, and friends; however painful the steps which lead to such result may be to the feelings of those who are now urging the demands of public justice against him; however painful it may be, more especially to you, gentlemen, upon whose verdict, as a jury of the country, that result will immediately depend—it is still my duty to ask, and your duty to give, that verdict which the facts of the case, and the due application of the law of the country to such facts may require, and to find him guilty of the crime charged upon him, if, in the conscientious discharge of the solemn function cast upon you, you are warranted and required so to do. It will give me great satisfaction if he is able to establish that there existed in this case such circumstances as will make the crime with which he is charged not entitled to be denominated and considered as murder.”

The evidence adduced (of which I need only give some material points) bore out faithfully this opening statement of the Attorney-General, and was in nowise shaken by the able and severe cross-examination of the counsel for the defence.

Evan Lewis, the first witness called, stated that he was the orderly-sergeant at Goree on the 10th July, and that the men in their application behaved peaceably. He thus described the actual flogging of Armstrong:—

Were any orders given them when they came upon the parade?—_Lewis_: They were ordered to form into a circle.

Who ordered them?—I do not know whether it was Governor Wall that gave the order, or one of the officers. Governor Wall was there.

I think you said Captain Lacy was there?—He was.

Do you remember the names of any other officers that were there?—Mr. Ford was there, I believe, and Lieut. Fall and Lieut. O’Shanley were there also; I believe they were there before the end of the business; I do not know whether they were there at the beginning.

Did they form any part of the circle?—They were in the middle of it.

What size was the circle?—It was but small; there were not three hundred men there.

Was it formed one or two deep?—To the best of my recollection, two deep.

Do you know what the number of the whole garrison was at that time?—I believe not three hundred; I am almost sure it was not.

What situation were you in?—Close to the circle on the outside.

Where was the governor?—He was inside.

Were you near enough, were you in such a situation that you could hear what was passing within the circle?—I was; I heard some words that passed.

Could you see what passed?—Yes, very well; I was leaning rather between the men, with my head over, to listen and see.

What did you observe to pass within the circle when it was formed?—There was a carriage of a six-pounder brought in, I believe, just after the circle was formed.

Do you know who brought it in?—There were some blacks there, I saw, but I do not know whether it was they that brought it in or not.

Did you observe anything pass between the officers?—I saw the governor speak to the rest of the officers, but what they said I do not recollect.

Was the gun-carriage brought in before you observed the governor speaking to the officers, or after?—I cannot pretend to say.

Did you hear the governor say anything that you do recollect?—Not to the officers.

To any one else did you hear him speak?—Yes, I heard him call Benjamin Armstrong out of the ranks.

Where was Armstrong at that time?—Among the rest of the men in the circle, in his proper place.

Did he come out?—He did.

What happened when he came out?—He was ordered to strip by Governor Wall, and was tied up to the carriage of the cannon, and Governor Wall ordered him to be flogged, and he was flogged by black men.

Were more than one person employed in it?—There were five or six, to the best of my recollection; I believe six; they changed as the drummers in the army do; I cannot exactly tell how often; I believe about every twenty-five lashes.

Do you recollect how many lashes he received?—No, I do not; he had a great many.

Do you know how long it was about?—I cannot tell.

Were you near enough to see what the instrument was with which he was flogged?—It was a kind of rope.

Can you tell the size of the rope?—No, I cannot pretend to say now.

Was it the usual instrument of punishment?—No, I never saw any one punished before with a rope of that kind, nor by blacks before.

Were these blacks any part of the regiment?—They were not.

Did you ever see anybody punished in that way before, and with such an instrument?—I never did, neither before nor since.

Where was Governor Wall during the time that this punishment was inflicted?—He was in the circle just by the person that was punished, urging them to do their duty, and threatening them if they did not.

Do you recollect any expressions he made use of at the time?—I heard him say several times, “Cut him to the heart! Cut him to the liver!” I heard him say that several times.

Did you hear Armstrong say anything to him during the time the punishment was inflicted?—I believe he begged for mercy, but I do not remember the words.

Did the governor say anything to him?—I heard him say something during the punishment, but I am not certain whether it was to Armstrong or any of the others.

You do not recollect whether the expressions you remember to have heard from the governor were made use of during the punishment of Armstrong, or any other person?—I have not said what you mentioned; what I have said was during the punishment of Armstrong.

What became of Armstrong after the punishment?—I believe he was taken to the hospital between two men; I saw him going away from the circle.

At this time was there any appearance of mutiny or disobedience among the soldiers?—I did not see the least, nor hear of any.