The Stourbridge Observer, Cradley Heath, Halesowen & District Chronicle.
Stourbridge, West Midlands, England, 1872-08-17 00:00:00

ALLEGED ILLEGAL IMPRISONMENT.

The fodowing letter appeared in The Times of
Wednesday

Permit me space in the columns of poor paper to ap-
peal against the illegal imprisonment of two men serving as
so! 'tars in the Royal Marines.

The case of one of these men WU referred to by Sir Wil-
frid Lawson in the House of Commons on the Bth and 9th
hist , but the answer by Mr. Coaches on the 9th was evasive,
and did not touch on the point of law involved in the ques-
tion.

To state the matter briefly,—
Corporal Henry Clinch, Royal Marines, was tried at Goa
Port on the Itth of July, and Corporal Robert liogers on the
2nd inst., each on a charge of which the following was the
gravamen :—" Inaubor dilation In haying disobtye.l the law-
ful command of Colonel Commandant by preaching in the
open air." They were both convicted on the charge by
garrison court-martial, sentenced to he reduced to the
ranks, and to 81 days' Imprisonment, with hard labour.
Raving been formerly adjutant of a regiment, and for the
last four years in command—having moreover, studied for
years the question of "lawful command" as it affects the
liberty of officers and soldier,; and having often discussed
this very point with one of our best Generals, on whose
Staff I had the honour to nerve, I consider that I am quali-
fied to give an opinion upon the question at issue.

In my opinion, and I believe that the opinion of the Lew
Officers of the Crown will bear me out, the order of the
commandant was not a lawful one. If his command was not
lawful, disobedienoo of it was no military crime. I believe
that these two corporals have been illegally tried and ille-
gally imprisoned.

The question is, "What constitutes lawful command ?"
"Lawful command' only affects military duty. A com-
manding officer may lawfully order a parade every hour,
and the barracks to be washed twice a day, if he thinks the
public service will benefit, but he cannot order an officer or
soldier to smoke or go to a ball.

In 1009 or 70 a sergeant at Hongkong ordered a private to
take. note about regimental theatricals. The man refused,
was illegally tried for " disobeying the lawful command,"
Illegally convicted and imprisoned. After he had done
about three mouths imprisonment the decision of the
Judge Advocate-General arrived from England that the com-
mand was not a lawful one, as it was not a question of
military duty, that the man was to be released, and the
court-martial erased. In this case neither the commanding
officer who preferred the charge, the Court who tried it,
nor the conallrming officer understood the nature of "lawful
command." I fear that the same error has been made in the
present case.

The mistake lies in supposing that when a man enters
the military service, either as officer or soigjer, be sells him-
self body and soul to the fitato. Ile doTs no ouch thing.
He dois not one his liberty as a subject. lie merely gives
to the State as much military duty as it demand.; if neces-
wiry, every hour of the day and night. But, his duty one,
he may enjoy his liberty RS a nubject during bin leisure
hours. Military authority has no power over officers or
soldiers when off duty unless they infringe the law of the
land.

This is a point most strongly maintained by officers of the
Army, and, as the liberty of the subject is the same for the
r ae the rich, they should maintain it for their soldier.
Preaching in the open air is no crime in England. It is prac-
tised by noblemen, gentlemen. Riot hundreds of no, knig
men. If a riot en.mes or a public road is mstructeJ, ilia
preacher may be lawfully punished for creating a brtach of
the peace. But that there he no open air preaching for fear
of roll, not the law of England.
Therefore, if to preach In the open air is not contrary to
the law of England, it ia an unwarrantable interference with
the liberty of the subject and an abuse of military authority
for a commenning officer to order a soldier not so to preach.
Such command is not a "lawful command."

Officers of the Army are bound in their duty by law, and
should keep to law.

With regard to Mr. Goschen'e statements in the Holum of
Commons in reply to Sir Wilfrid Lawson's queries, I would
remark that he stated that the man :he only alluded to one)
had been guilty of "repeated dimobedience of express
orders." He did not any " lawful" orders, which made all
the difference as regards the conduct of the men and the
opinion of the Rouse. He also said, 'the Colonel
taking the view universally taken in the Army and
Navy." May I ask what has "the view " of the Army
got to do with a point of law on which haugs the
lawful Cr unlawful imprisonment of an Englishman
He also said 'the authorities felt that they hall no alternative
but to deal with the question as one of discipline, if thy
were to maintain discipline in the Army and Navy atoll."
I would remark that discipline is best maintained by a just
discharge of duty according to the law, not by illegal force.
There Is a vast difference between the proper maintenance
of discipbue and military tyranny, —the illegally imprison•
big men runty of no offence against the laws 01 their country,
civil or military.
I hope three questions will be well considered by those
who take up their pens to write on this subject. It might
be thought by persons unacquainted with the Army that
the definition if "lawful command" as above would tend
to insubordination, by leaving the soldier to judge whether
an order be "lawful" or not. Such cannot be the case
Military duty is comprehensive and clear in all its details,
and t tficers and soldiers know what le duty and what is not
• • -

Discipline haa been maintained under this view of lawful
command by the best officers of our army, including Marl-
borough and Wellington. 4"Twas on the plain. of Flanders,"
that Marlborough, when requested by certain officers to pro-
hibit a private of Dragoons front preaching, not only refused
to do so, but sent for the man, heard what he had to say,
save him his authority to preach, and went himself to hear
him.

Mr. Corthen stated that the men apparently wilfully dis-
obeyed their Colonel to try the question. Only " apparently."
I vent to Gosport on the 10th but, to see them, and to advise
them as a friend and an old racer, in the interests of
diecipline, until the question be lawfully settled. They told
me that in each instanse they left barracks purposing to do
U their Colonel wished , hut being with their friend the city
udesionart, and led by a power they could not resist, they
preached. I have seen the place where they preached. It
was not in the streets. but in a large open spans in an oat-
of-the-way locality in Gosport, where they were welcomed
and In no way Interfered with public traffic.

The greatest sympathy wee felt for the corporals by the
poor of the neighbourhood, by whom they are much re-
spected, and also by their comrades. Their release from
prison has, therefore, given the greatest sattataotion.
Mr. Goschen stated that 77 of the 84 days' Imprisonment
had been (in the one case) remitted. Remitted I Why? I
know the tender mercies f military discipline in regard to
Insni.ordimition so well, that I Ani convinced that Sinless the
legal opinion had been that the whole proceeding against
the men, from tint to last, was unlawful, not a minute of
the sentence would have been remitted.

If this be so, the men should be reinstated In their rank of
Corporal, and reneive their bays pay in that grade.
1 disclaim sny purpose in this letter to reflect upon the
eonduct of °faders. N d men more sineer ly desire to no their
duty than British Madera lee best man may eammit an
error of judgment 1 have only done my duty as an Eng-
lish gentleman by stating the ease in point of law, in
so-
hail of tsvo poor 111C11 who I believe have been 11/egally
punished.
As I ohjset on princip`e to anonymous lettere, I have the
hotour t, suas,rilie mysn.l sour obedient servant, dze.,
CLIARLES 11. MALAN, late Major
70th Regiment.
Army and Navy Club, Aug. 12.