The Sun.
London, England, 1863-12-19 00:00:00

THE SUN, LONDON, SATURDAY EVENING, DECEMBER 10, 1868

exercise of arbitrary power on the part of the pri-
soner with the exercise of the supreme power of
Parliament and of the Crown, as shown both by the
provisions of the Mutiny Act and of the Articles of
War, that not even a convicted prisoner shall in any
case whatever, be his crime or his sentence what it
may, be kept in solitary confinement for more than
14 days at a time; and if the whole term of im-
prisonment to which he is sentenced exceed three
months, that he cannot legally be kept in solitary
confinement for more than seven days at one time,
with an interval of seven days between each con-
finement; and though in literal strictness this pro-
vision of the Mutiny Act and Articles of War ap
plies only to the case of Sergeant-Majors Wakefield
and Duval, the spirit of the provision can hardly
be thought to be complied with merely be-
cause the confinement of Sergeant Major
Lilley was rendered not solitary by the pre-
sence of a dying wife. Let me pause here for
a moment to submit respectfully to the Court
the following question. Was this proceeding
on the part of the prisoner due or necessary for the
carrying into Effect the orders for Sergeant-Major
Lilley'e c ose arrest? Having pointed out that the
order of the Commander-in-Chief respecting the
arrest which was conveyed in Lieut.-Col. Thesiger,s
letter of May 6th, 1862, did not direct or suggest
close arrest, the prosecutor continued :—But,
although the prisoner cannot be held responsible
for the actual order for the close arrest, it seems to
be a matter for the consideration of this Court
whether, by the prisoner's own showing, he ought
not to have applied to Major-General Farrell for the
change from close arrest to simple arrest fourteen
days sooner than he did apply. For, as has been
already shown, the grounds on which alone the
close arrest was considered by the prisoner to be
necessary, namely, to prevent Mr. Smales from
having communication with his witnesses, totally
ceased to exist on the 10th of May; for from that
date there were no witnesses to tamper with, either
for the prosecution or for the defence, It seems,
therefore, by the prisoner's own showing, that the
application to Major-General Farrell to have the
close arrest changed to simple arrest, which the
prisoner sought to make a merit of in his cross-
examination of Major Champion, on the second day
of these proceedings, was in reality so far from being
a merit, that it was deeply condemnatory of him,
inasmuch as it proved that he ought, by his own
showing, to have made the application exactly four.
teen days sooner than he did make it. It seems,
therefore, to be a matter for the consideration of
this Court whether the prisoner is not responsible
for all the consequences that resulted from that ap-
plication not having been made by him sooner than
it was made. But with regard to what the prisoner
failed to do in the matter, and the undue severity
thereby evinced towards Sergeant-Major Lilley by
the prisoner, the matter by no means rests here.
For, as I intimated in my opening address, Sir
William Mansfield's order was peculiar in its
nature, and its wording; the confinement it
directed was to be of uncertain duration ; the
offence for which that confinement was ordered
was not only not specified, but the
order intimated, strange to say, that no offence what-
ever could be assigned as a ground for it ; and the
oft.-nce for the alleged commission of which the ser-
geent msjors were originally arrested (namely, a
cinspirecy) was declared by Sir William Mansfield
not to be supported by the evidence, and that, there-
fore, no charges could be framed against the ser-
geant majors in respect of it. Allow me, therefore,
to submit for the consideration of the several mem-
bers of this court the following question—What
would a commanding officer be disposed to do who
found himself called upon to enforce such an order,
so strangely worded, so apparently contradictory
with itself, and the legality of which was so ques-
tionable on its face ? For it is to be borne in mind,
that by the express terms of the Mutiny Act and of
the Articles of Won an officer or soldier is only
punishable for disobeying "any lawful order of his
superior officer;" and an order for the confinement
of an officer or soldier for an indefinite period is on
its face unlawful, inasmuch as, by the 18th Article
of War, it is expressly provided that "no officer or
soldier, who shall be put in arrest or confinement,
shall continue in such arrest or confinement more
than eight days, or until such time as a court martial
can be conveniently assembled." But, as in the case
of the three sergeant majors Sir William Mansfield
had, in his letter, dated May 6, 1862, expressly
stated that no charges could be framed against them,
it is clear that no court martial could be assembled
for their trial, and therefore the latter part of this
provision is inapplicable to the present case. And,
therefore, it is clear that—even assuming that filch
confinement was lawful at all—it shculd have been
expressly limited to a period of eight days at most.
Let me, therefore, again pause to ask, What would
a commanding officer be disposed to do who found
himself caned upon to enforce such an order ?
For, as this court is well aware, the provisions of
the 78. h Artic,e of War run thus—" Any officer or
soldier who shall unnecessarily detain any prisoner
in confinement without bringing him to trial
shall be liable to be cashiered." I will now
take the liberty of recalling to the attention
of the Court the exact words that I made use of in
my opening address, inasmuch as those words may
serve not only to convey, to the Court the question
which I wish to bring under its consideration, but
also to show that the view of the matter taken by the
prosecution at the outset of the case has been steadily
adhered to, and the precise issues which the charges
were stated to involve are now, at the close of the
trial, again brought under the consideration of the
court in the very same terms in which they were
originally submitted to it. In my opening address
I used these words—" For the mere circumstance
of keeping the sergeant major in close arrest so long
as the order was in force the prisoner cannot be held
responsible. But the length of time during which
the imprisonment actually lasted, and the indefinite
duration which was assigned to it by the order,
appear to me to become matters for your considera-
tion, and to have a bearing on the first charge on
which the prisoner stands arraigned, when it is re-
membered that, as the confinement (by the strange
terms of the order) was to be uncertain in its dura-
tion, it ought to have been made by the officer en-
trusted with its execution as little grievous as pos.
Bible from its very commencement ; and as the course
of events seemed to be assigned to it by the com-
mander-in-chief, it will be for you to consider
whether some steps ought not to have been taken,
either to ascertain whether any definite limit was
intended to be assigned to it, or to represent to the
authority who gave the order that the duration of
the confinement seemed to be hemming greater
than he could have intended it to be. J, therefore,
propose to submit for your consideration whether,
both in -what the prisoner did do in the matter, and
what he failed to do in the matter in respect to the
duration of the confinement, undue severity was not
shown towards Sergeant Major Lilley." These
were the words of my opening address. In those
same words I again respectfully submit this part
of the ease for the consideration of the
Court. The prosecutor then proceeded to con•
bider the nature of the order directing the
close arrest, and called attention to the fact that this
portion of the case rested on the testimony of Major
Swindley, Capt. Weir, Lieut. and Adjutant Fitz-
simon, Quartermaster Wooden, Sergeant Gibson,
Sergeant Bernard, and Private Reynolds, corro-
borated by the testimony of an eighth witness, Ser-
geant Major Cotton, and by circumstantial evidence.
Passing to the alleged hardships and indignities
suffered by Sergeant Major Lilley, and his wife, he
pointed out how the severity of the arrest rapidly
and steadily grew greater and greater, until it was
checked by the accident of Sergeant Major Lilley's
being brought before the Mhow court martial.
" And although" (continued Sir A. Horsforcln, " it
would
to the be easy for any one to draw a touching pic-
ture at the sufftaines of the sergeant major and his
watehre subjected day
Wife white they ; werj d byand by night
pees on a constantly shifting series of
sentries, bringing
constantly fresh curiosity to
gratify, I shall a
witness, whose
testimony myself with calling a single
witness is the prisoner. For
htitness on this matter seems to be
entirelyin hhis
repayc o r rbfeecth. r e
Im
the ow court martial—a reply
evidently drawn
up with
still and care—he holds
e in re
l'lnglia"o -f
e""ce to the posting of the
evo*.ries in ,Sergeant Major
-a bungelow.li

describes it as "an act harsh and unusual, as the
prisoner (namely, Mr. Smales) styles it, but which,
had I been guilty of it, or had any knowledge of it,
would deservedly be deemed an act of the greatest
inhumanity on my part ; I allude to the testimony
of the late Sergeant Major Lilley as to a sentry
being placed at the door of his bungalow where
his sick wife was lying." Therefore, as regards the
fact of the hardships and sufferings endured by Mrs.
Lilley on that particular occasion, no more proof can
be needed. Whether the prisoner was responsible for
these particular hardships and sufferings will be seen
hereafter. The course that has been taken by the
defence on this part of the cese will, however,
render it necessary to dwell for a short time on
the miseries endured by Sergeant Major Lilley
and his wife throughout the whole period of the
arrest, in order that the Court may judge whether
the view taken of them by the prosecution, or that
taken by the defence, is the more correct. The
Court will have observed that throughout the exa-
mination of the witnesses the prisoner has seemed
to think, and to suppose that this Court would
think, that the opinions of the sentries about the
annoyance and inconvenience endured by Mrs. Lil-
ley furnish the true test of the reality and amount
of that annoyance and inconvenience; and that :he
proper mode of arriving at a kno.vledge of her feel-
ings would be to ask some of the sentries what
theirwere ! What will this
coor Court
feelings
think on o f s
a the matter atest
of
a woman's feelings ?
It seems strange, indeed, to think or to suppose
that this Court would think that such a thing as a
chick could be an obstacle to the vexation with
which the known presence of a sentry must have
struck a dying woman—a vexation that did not de-
pend on the mere.fact of the sentry seeing or hear-
ing her, but on the fixed ever-present knowledge in
her mind that there was about her bed end about
her path, and spying about all her ways, a con-
stantly shifting watchful male stranger, who seemed
to be by law not only entitled to be there, but whose
duty it was to be so ! Surely so flimsy an argument
is as easily seen through as the chick itself. Pass-
ing then to the subject of the bungalows, the pro-
secutor contended that, whatever the first might
have been, it was clear that the second consisted
only of one large room and one inner verandah, and
that Sir Hugh Rose would not have expressed him-
selfas he had done in regard to them, and the whole
question of the arrest, if the truth had not been
withheld from him—the worst evil which could
befal a man in authority. It was argued by the psi-
, over that if hardship had been experienced by Ser-
geant Major Lilley and his wife,Adjutant Fitzsimon
was the persoa responsible ; but then came the
question (observed the prosecutor) What is the
duty of an adjutant who is ordered to pat in execu-
tion an order so positive, precise, and peremp-
tory ? and what is the responsibility of the
commanding officer who gave the order? This is
a question of military law, and apparently one of
the simplest kind ; for where the terms of an order
are precise and clear, and are accompanied by no
qualification, the proper rule of construction must
surely be that which governs all cases of the kind,
namely, that the plain grammatical meaning of the
order is to be deemed to be the proper meaning of
it. Now, applying this rule of construction to the
erder of the prisoner, namely, that the sentries were
to be placed inside Sergeant-Major Liltey'e qtarters,
so that they should not lose sight of the sergeant-
major by night or by day, it is difficult to see how
an adjutant can bo held legally responsible for any
results of a literal compliance with that order, be
t hose results what they may ; for can there be a
doubt that his duty is to carry it into execution,
without reference to what he may consider fitting
or expedient ? Let us, therefore, test Mr. Fitz
simon's conduct by this simple rule; and on the
supposition that he is to be considered guilty of dis-
obeying the order of the prisoner by omitting to
see that the sentries were so placed as net to annoy
or interfere with Mrs. Lilley, let us try to frame a
charge against him
thef o r set:
only
dti,rs
true
eb etde iset noefe :
rightfor, oin
r
easese
of
the
wrong is whether the alleged wrong can be set forth
in a legal charge. Now, the charge would run thus :
"For conduct to the prejudice of good order and
military discipline, in having at Mhow, on the--
day of -----, failed to carry into effect the express
order of his superior officer, whereby he was ordered
to have the sentry posted inside Sergeant Major
Lilley's quarters, so as not to lose sight of Sergeant
Major Lilley by night or by day : whereas the said
Lieutenant and Adjutant Fitzsitnon did there and
then cause the sentry to be so posted as to enable
him (the sentry) to see by night and by day, in
whatever part of his quarters he happened to
be." This charge, which precisely states the
acts of Lieutenant and Adjutant Ftzsimon,
would also show that he had complied with
the order to the very letter. It therefore
would show, not that Lieutenant and Adjutant
Fitzsimon had done wrong, but would prove
conclusively that he had done right, for
the absurdity of the charge shows at once the ab-
surdity of supposing that any charge could be
framed for an act which was absolutely right. But
another view has been suggested, namely, that the
literal compliance with terms of the order is the
very thing which is objected to, and that this com-
plete obedience to his superior constitutes Lieut.
and Adjutant Fitzsimon's misconduct. This is a
new view of military duty, and is so important a
matter as to warrant and require a most careful in-
vestigation. In this view of Lieutenant and Adju
taut Fitzsimon's conduct with reference to the exe-
cution of the order, the suggestion is this—that, as
a literal compliance with the terms of the order
seemed likely to entail inconvenience and annoyance
on Mrs. Lilley, it was Adjutant Fitzsimon's duty to
qualify the order, so as to preveut it carrying with
it this consequence. This suggestion, therefore,
involves this principle of military law, that, when
a commanding officer gives an order to an adjutant,
positive, precise, and peremptory, and, in the opi-
nion of the adjutant, the order carries with it a mis-
chief which a strict eompliance with the terms of it
renders inevitable, the duty of the adjutant is to
take upon himself to qualify the order, and in
reality not to carry it into execution. Before such
a tribunal as this I surely need say nothing to show
that the very statement of the principle seems to
reduce it to an absurdity; and that, wholly irres-
pective of the competency or incompetency of the
adjutant for the duties of his office. I may, how-
ever, be permitted to call the attention of the court
to this important feature in the case, that the very
mischief which the order inevitably carried with it
was so glaring and obvious that, at the very time
of the order being given by the commanding officer
the mischief of it had been publicly called to his
attention by the adjutant himself as well as by
Sergeant-Major Cotton; and he had, notwithstand-
ing, persisted on its being enforced as a matter of
imperative military duty, and in a manner and
with language so emphatic as to render
his intention absolutely unmistakable. Therefore
it seems clear that if the adjutant had ventured
to deviate from the strict letter of the
order, he would have done so in known, positive,
and wilful disobedience of the express orders of his
superior officer, and would have thereby rendered
himself legally liable to all the consequences of such
disobedience. The prosecutor then pointed oat the
sweeping mode in which the prisoner disposed of
the evidence in support of the charges against him
by characterising it as perjury, and thus concluded :
Mr. President and gentlemen—l have now done. I
have gone with you through the evidence by a gate
not known to the public, and by a way which seems
to have been avoided by the prisoner. It is for this
Court to determine which way leads to truth and
justice. Where truth is unwilling to reveal herself
mercy becomes the guide. But if in this case truth
seems clearly to have revealed herself in the evi-
dence, and the facts of the cm to have been proved
beyond a possibility of reasonable doubt, do they,
or do they not, appear to you to carry with them
conviction like their shadow ?

After consultation with his counsel, Mr, Vernon
Harcourt, _

Colonel Crawley said—Mr. President--I beg to
call the attention of the Court to the erroneous
statements several times repeated by the prosecutor,
namely, that Sir William Mansfield has stated that
there was no evidence to justify the arrest of the
three sergeant majors. I beg leave to call the atten-

tion of the Court to the fact that that statement is
directly opposed to the evidence,
The President—The Court will consider your
observation.

Colonel Pipon, Judge-Advocate, then announced
the Court as closed, and the public proceedings ter-
minated shortly after two o'clock.
The members of the Court remained subsequently
a considerable time in deliberation. Their judg-
ment, as soon as it has been arrived at—and there
is every reason to suppose that it will be speedily
come to—will first be submitted to the Commander-
in-Chief, and through him to her Majesty for ap-
proval, and will then be published in the Gazette.
The inquiry has lasted 21 days, being some days
less than:the Mhow court-martial, out of which it
originated.