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

THE StIN, LONDON, SAPUHbAY EV.ENING, DECEMBER 10, 1863.

THE CRAWLEY COUET-MARTIAL.

The proceedings in this protraeled case were
brought to a close yesterday by the reply of the pro-
secution. As might have been expected, it did not
excite the same degree of interest as that which was
manifested in Col, Crawley's statement. The long
rows of reserved seats, which were crowded on the
preceding day, were nearly deserted, and amongst
the visitors of distinction we noticed Lord and Lady
Chelmsford and Mr. and Mrs. Headlam. The Court
having been formally opened,
Lieut.-Col. Crawley requested and was allowed to
make an unimportant correction in his address of
s
the preerious day.
Sir A. Horeford, official prosecutor, then rose, and
proceeded to read his reply to the defence. He said
—Mr. President and gentlemen, —I propose in my
reply to confine myself as closely as possible to a
plain comment on the evidence; for in a case like
this a speech appears to me to be of no value; ex-
cept when it serves as a clue to guide through a
labyrinth of evidence. I should wish, ho',vever, to, .
take this opportunity of expressing my concurrence
with what has fallen from the prisoner as to the
misstatements and exaggerations that have appeared
in print respecting him. Such misstatements and
exaggerations are extremely to be regretted, not
only for the sake of the prisoner, to whom they are
most unfair, but also because they render the admi-
nistration of justice difficult by raising prejudices
and causing misapprehensions, which, when cor-
rected, by a knowledge of the actual facts, make
those facts seem less important and serious than
they really are. In dealing with these facts it will
be well to begin with the orders for the arrest,
which the prisoner is charged with having car-
ried into effect with unnecessary and undue severity
These crders were two in number ; first, that of
Major-General Ferrell, ElL:ted 26th April, 1862, the
material words of which were these—
You are to keep regimental Sergeant Major Lilley and
Troop Sergeant Majors Waktfi•eid and Duval in close arrest
under sentries, and to forbid any one to have access to them
except under your own express permission.
The other order was that of Sir `William Mansfield,
dated 6th May, 1862, of which the material words

are these :
The sergeant majors are not to be released from arrest
until the proceedings in the trial of Captain Smales aro en-
tirely closed, and the court of which Lieutenant. Colonel
Payn is president has been finally adjourned.
The proper mode of carrying into effect these two
orders appears to me to be the main question which
the Court will have to determine with reference to
the first charge. It has, I think, been correctly stated
by the prisoner, "That the nature of the charges on
which sergeant Major Lilley was arrested, and the
nature of the orders the prisoner received from his
superiors relative to the arrest, are necessary ele-
ments in explaining and justifying the manner in
which he thought it necessary to carry out that ar-
rest ;" and for that reason the prisoner put in evi-
dence Lieut.-Col. Theeiger's letter of May 6, 1862,
in which is conveyed Sir Wm. Mansfield's opinion
that the prisoner " might fairly interpret the acts of
the three sergeant mjors into a conepiracy against
his authority, and wan amply justified in taking the
stringent measures he did for the obstruction of the
further progress of such conspiracy, and that it was
his undoubted duty to do so." The date of this letter
shows that Sir William Mansfield could not have
meant more than that the prisoner was justified, in
the first instance, in ordering the arrest of the ser-
geant majors, for Sir William Mansfield could not
then have known anything more than the mere fact
of the arrest. It may seem strange that at the com-
mencement of the same letter Sir William Mansfield
remarked that " Tl:ece did not appear, as ehown by
the documents which had been sent to him by
li‘rlejor-General Farrell, uny sufficient grounds for
bringing the non-commissioned officers concerned
to trial for conspiracy," and yet that the prisoner
was not only deemed by Sir William Mansfield
to have acted rightly in ordering them into
arrest upon a charge for conspiracy, but was
further (in Colonel Thesiger's letter of the
same date) ordered " not to release them till
the court of which Col. Payn was president had
been finally adjcurned." But, strange as this may
serm, the express terms of the order make it clear
that, as far as the arrest itself is concerned, the pri-
soner was acting under the orders or his military
superiors, and cannot therefore ba held responsible
fee t. It is also clear that Sergeant Major Lilley had
?0 e n originally placed in arrest on a charge for con
spi racy ; that, from the 26th April, 1862, to the 6th

, 1862, Major General Farrell waa responsible
for that arrest; end that, after the &h May,
1862, until the final adjournmeit of the Mhow
court martial, Sir Williatu Mansfield .tras respn-
sible for it. It further appears from a letter
by the prisclAr to Mojor Champion,
elated 2Lh

adere3s

, 1532, that the alleged grounda for
Reeping two of the sergeant m&jers—namely,
Lilies and Daval—in close arrest, with sentries ,
over them, were different from the alleged ground
for keeping Sergeant Major Wakefield in close
arrest with a sentry over him. For, with regard
to Sergeant Major Wakefield, the prisoner says,
"The threat that he would poison or otherwise
make away with the men who gave information
about the defence being read is still to be guarded
against.'' It seems important to note this distinc-
tion, because it shows, by the best possible evidence,
tamely, the prisoner's own statement, that although
there mi might. in the first instance have been some
colour .
ler severity in enforcing the arrest in the
Cparseet:Vtoop Sergeant Major Wakefield, no such
la
existed the case of Sergeant Major
Lilley, as
e had never been even charged with
threatenin to do violence to any one. I believe
that I haveig laoe7
relative
laid before the Court all the ma-
terial facts r
to the orders for the arrest
t'
and the eeoe
of those orders ; and I
think it mapay
eful at this stage of the reply
to consider What course anommanding officer would
be disposed to adopt
if there were consigned to
big custody, to be kept
ter
regimental in close arrest, under
sentries, aßemit major belonging to
another regiment,
,who
to that time borne
oharacierd, butt Nell_
the highest 0 had been charged
with being concerne
Ilse Sir William Mans-
field's words—in
officer. Suppose further, that
a conspiracy
againste the authority
of his commanding
major gad
this regimental sergeant
almost dying India—the
wife—that the place vu'is'e. gad
e-nae
time of the year one of its hottest month_
ser-
geant major a large-fraraed man of plethoric habit
e
of body, accustomed to ride About a great,
eclat on
a pony, and to be always engaged in duties Which
required him to be active and stirring. Perhaps
shall not be deemed
presumptuous if, even
in
preeeeace of this high tribunal, I venture to
„ mode of
offer opinion that the proper
en-
forcing an order for, close arrest under a
sentry in such a case, would be that
consis-
tently with the safe custody of the prisoner, was the
least severe which the custom of the service
would
warrant. I will now proceed to draw the attention
of the Court to what actually took place :
However, I will subetitute for the commanding
officer of another regiment the commanding officer
of Sergeant Major Lilley's own regiment, namely,
the prisoner. Secondly, It is to be observed that
the alleged offence of. conspiracy was committed
against that commanding officer's authority, namely,
the prisoner's. Thirdly. That a trial was then
Pending where the commanding‘effieer, namely, the
prisoner, was at one and the same time both a pro-
secutor and defendant. Fourthly. Tnat the sergeant
balerbeled to
was one of the witnesses who would probably
give evidence unfavourable to his com-
manding oMeer, namely, the prisoner, Fifthly.
That during ee,courseOf the confinement the Com-
mander in Chief
sufficient
13,jetice t
had declared that there was no
o support the charge of conspi-
reey. Siethly, That -
the terms of the orders for the
arrest left it dizcretio
, nary with the commanding
efEei.,r, namely, Prisoner
commun,
iLeo permitti
withthe
asergeant
,
major ' to have free
scventkly, that Mr. Smalee
who required the evi-
dence of the sergeant major far his defence, was
as freely to co
entitled by law meaunieete with the
sergeant mej
or as the prisoner now neer trial has
bean allowea to
ccmeetinicate, not Only with his owe
-het even with the Witnesses for
the peo
-:ttters seem open to-ehe-
Thet commanding
such o.•kicrgeant

witnesses, t

s2cution.

.s 3 EeVen

folloviing observation.

who nord laiztse.

7/ -r 11 ck!se arm,

would naturally find himself placed in as delicate
and responsible position as can well be imagined
—a position where, on the one hand, all the noble
qualities which go to make up the character of an
officer might be nobly illustrated ; end where, on
the other hand, all the undefined and dis-
cretionary powers which are necessarily en-
trusted to a commanding' officer might be
terribly abused. For in this case those
large discretionary powers might be employed
for three several purposes—first, to gratify feelings
of anger and dislike towards an individual; se-
condly, to obstruct the defence of another indivi-
dual against whom the prisoner was then acting as
prosecutor, and for whom the first-named indivi-
dual was a witness ; thirdly, to facilitate his own
justification, in his character of defendant, before
the Mhow court martial. Let me now, by a refer-
ence to the evidence which is on record, show you
that the :prisoner actually did employ the
officer,he
discre-
tionary powers which he had as commanding
s eprecisely
he
i n
and which Major-General Farrell's order
ry
o i forsel
arrest expressly left him free to use,
this manner and for these purposes. Let us
follow the course of the arrest through its
several stages of severity. The course of the arrest,
as proved by the evidence, was this :—At the corn.
mencement—on the 26th of April, 1832—it was
simple arrest. Later in the same day it was close
arrest, under a sentry placed outside the quarters.
Shortly afterwards it was close arrest under;a sentry
placed inside the quarters, for Sergeant Eyland
proves that this order was given on the 28th April,
and the date of Corporal lake's offence, as shown
by the record of his court-martial, that it must have
been given before the Ist of May, 1862, for Corpo-
ral Blake on that (by disobeyed it and was reduced
by the prisoner for doing so. Shortly afterwards
it was close arrest under a sentry, placed in the
same room with the sergeant-majors, with positive
orders not to lose sight of the prisoners by night:or
by day. And this last order must have been given
on or before the 4th of Mar, 1862, because it was
given while Lieutenant Fitzsimon was doing duty
as adjutant; and from the evening of the 4th ot
May down to the 16th of May be was sick and off
duty, as is proved not only by his own evidence but
by that of Cornet Snell, and also by the regimental
order-books. This gradually increasing scale of
severity was ordered by whom, and under what
pretext ? What says the evidence ? That the
placing of the sentries inside the quarters, instead
of outside, was done by order of the prisoner is
proved by his own letter of the sth June, 1862, to
the Deputy Adjutant-General, Mhow Division, in
which he says that in consequence of the impossi-
bility of preventing communication being held with
the prisoners by parties in the interest of the pri-
soner (namely, Paymaster Smales), it was deemed
advisable to place the sentries in the room with the
prisoners, not only to avoid the exposure of the sen-
tries to the sun and hot winds, but to prevent the
witnesses being tampered with during the remain-
der of the trial... In this letter.we have proof not
only of the fact that the sentries were posted inside
the quarters in the very room with the sergeant-
majors, by the express orders of the prisoner, but
also the reason assigned, which, in his (the prisoner's)
opinion made this rigorous proceeding due and ne-
cessary. It is clear—First, that the real object of
the close arrest, and of the placing of the sentries
inside the rooms with the prisoners, bad reference
solely to the defence of Paymaster Smales, whose
witnesses they were. Secondly, that the object
was to prevent the sergeant-mejors being tampered
with, as Mr. Smales's witnesses against the prisoner.
Thirdly, that by being tampered with was meant,
" being communicated with by parties in the in-
terest ot Mr. Smales." For this is clearly shown
by the prisoner's letter of the 4'h June, 1862, ad-
dressed to the Assistant-Adjutant-General, in which
the prisoner uses these words, " in consequence of
the impossibility of preventing communication being
held with the prisoners by parties in the interest ot
the prisoner, namely, Paymaster Smales, it was
deemed advisable to place the sentries in the rooms
with the prisoners, not only to avoid the exposure
of the sentries to the sun and hot winds, but to pre-
vent the witnesses being tampered with during the
remainder of the trial." These facts being thus
established by the prisoner's own written state-
ments, let us consider the exact bearing of the feats
upon the present charges. In order to understand
this thoroughly, it will be necessary to call the at-
tention of the Court to the proceedings of the Mhow
court martial (page 90), from which it will be seen
that on the 10th May,1862, Paymaster Smales had
closed his case and finished the examination of his
witnesses, and that therefore, by the prisoner's own
showing, the only reason assigned by him for keep-
ing the sentries inside the rooms of two of the ser-
geant-majors, at all events, viz., Sergeant-Majors
Lillev and Duval, totally ceased to exist on that
day, and could not by possibility revive. For they
could no longer be tampered with as witnesses for
Paymaster Smales, seeing that all his witnesses, in-
cluding Sergeant-Major Lilley (who had, indeed,
been called as a witness on the 7th May), had been
called, and that part of Paymaster Smalcs's case
absolutely concluded. I need hardly observe,
also, to this Court that this prohibition of
all communication, verbal or written, between Mr.
Smales and his witnesses, by whomsoever it was
ordered, was absolutely illegal ; nor need I contrast
with that proceeding in India the proceeding of the
Crovn here with regard to the free access which
the prisoner has been permitted to have, not only
to his awn witnesses, but also to those for the pro-
secution, But it is material to call special attention
to the fact that neither the. orders for the close
arrest as given by Major-General Farrell, nor the
orders respecting the duration of the arrest, as given
by Sr WM. Mansfield, in any way whatever
authorise this proceeding,further than what Major-
Gen. Farrell's order forbade access to the sergeant-
majors except under the prisoner's own express
permission, thereby expressly leaving the prisoner
free to act as the law requires, namely, to allow
Paymaster Smales to have as free communication
with his witnesses as the prisoner has been allowed
to have with all the witnesses both for the prose-
cution and for the defence, in India, as well as in
England. Therefore all the portion of the written
orders given by the prisoner to the adjutant on the
26th April, 1862, which are comprised in the fol-
lowing words, " with orders to allow no person
whatever to hold communication, verbal or written,
with the prisoner," are in truth the prisoner's
orders, and not either Major-Gen. Farrelr's cr Sir
Wm. Mansfield's. For Major-Gen. Farrell's order
left this matter absolutely in the discretion of the
prisoner, and Sir Wna. Mansfield's order was en-
tirely silent on the subject. Therefore these orders
::11111 have in no way operated to debar Mr. Smales
" sergeant-majors from freely communicating
with
oth
, he
er er, as they were entitled to do by
pow
prisoner had not used his discretionary
a, t4t,
right. Th;e. a manner as to deprive them of this
26th April
ts, then, does it appear that from the
Major day of his death was Sergeant-
communicate of his right to
those who acted freleerll9
a greaTai-ceclatlnaami.
Tor with Mr. Smiles, or with
deprived ee his ,iolhinib, and he was illegally
y the direct act of the
of the 'IN • strange proceeding on
Ivo re goes not rest here
tphr s npeari
~alone. but
this
e
by any --m""'
It
further, and became
males
had
greatareuF
Idusi
concluded
taadntsegha
icel
hisr ,
witnesses on the le,
course ofiArlrs. Smales,
havedu rgoring
saidthe
tea may, and
examinationbceffo
therefore from that day the only ptet
ezt
d for placing the the
prisoner himself allege
. gantries in-
side the quarters of the . s sergeant-majors N.," at an
end; for how could Mr. SniaLe" witnesses be
tampered with when he had no longer any. vit.
nesses to call, and that portion of the case, 48 well
on the part of the prosecutor aEi on that of aa,..
Smales, was finally closed ? Therefore, from the
10th of Kay to the 25th of May, which was the day
of Sergeant-Major Lilley's death—that is for a
space of 15 days—it is proved beyond all possibility
of question, by the prisoner's own showing, iu his
own written official statements, and by the record
of the proceedings of the Mhow court-martial (page
90), that the sentry was kept inside Sergeant'
Major Lilley's quarters absolutely without reason
svhseever, and kept there by the mere arbirrary
exercise of the discretionary power entrusted to the
piieoner as a commanding officer. CQutr,go; tiss

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
th
escaonrne than
tlaengally be kept in solitary
n seven
days
at one time,
with an interval of seven days between each con-
finement; and though in literal strictness this pro-
cmoonnfim, eintatl heor m
vision of the Mutiny Act and Articles of War ap
plies only to the caseof 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 respecttully to the Court
the following question. Was this proceedine
on the part of the prisoner due or necessary for the
carrying into effect the orders for Sergeant-Major
Lilley's eose 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 Lie 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 bis 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
offence for the alleged commission of which the ser-
geant majors 'were originally arrested (namely, a
ceaspiracy) 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 cfficer 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 War, au officer or soldier is only
punishable for disobeying " any lawful order of his
superior dicer;" and en order fcr 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 aeainst 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 their
confinement was lawful at all—it should 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 called upon to enforce such an order
For, as this court is well aware, the provisions of
the 7811 Artine 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•
sible 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 becoming greater
than he could have intended it to be. I, 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-
sider 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, be
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. Horsfordt, " it
70uld be easy for any one to draw a touching pic-
ture of the sufferings of the sergeant major and his
wife thile the
to the watchfulness
wore
subjected by day and by night
sentries, • ness of a constantly shifting series of
bringing a constantlyf • hcuriosity to
fresh
gratify, whosewitness, whose tonaitt.ent myself with calling a single
entirely correct, 'That ony on this matter seems to be
witness is the prisoner. For
in his reley before the mh
aw
evidently drawn up
w,c !cilia martial—a reply
h skill and care—he hold:,
this language in reference to the pastin-
g of the
sentriez4 ?ajar Li,t. ,
it'y e bungalow. H

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 the
proper mode of arriving at a knowledge of her feel-
ings would be to ask some of the sentries what
their feelings on the matter were ! What will this
Court think of such a test 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 and about
her path, and spying about all her ways, a con-
stantly shifting watchful male stranger, w ho 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-
-oner 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 put 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
ocder is to be deemed to be the proper meaning of

it. Non, applying this rule of construction to the
order of the prisoner, namely, that the sentries were
to be placed inside Sergeant-Major Lilley's quarters,
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 be held legally responsible for any
results of a literal compliance with that order, be
those 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 not to annoy
or interfere with Mrs. Lilley, lot us try to frame a
charge against him for such d;sobedience : for, in
cases of the kind, the only true test of right or
wrong is whether the alleged wrong can be set forth
in a legal charge. Now, the charge would run thus :
4, 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 Fitzsimon 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 Fitzsimon,
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
titeral 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 moat careful in-
vestigation. In this view of Lieutenant and Adju-
tant 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 prevent it carrying with
it this consequence. This suggestion, therefore,
involves this principle of military law, that, when
officer gives an order to an adjutant,
and peremptory, and, in the opi-
nionpa
acsoi
tmi
vme npdri
precise,
s
of the adjutant, the order carries with it a mis-
chief which a strict compliance with the terms of it
renders inevitable, the duty of the adjutant is to
take upon himself to qualify the order, and in
it into execution. Before such
tribunalraealit y not
as
se carry
tchaisl
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 case 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 eersemat trinjorF. I I.,eg leave to call the ntten-

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.