Part 20

“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.

Roger Moore, a private soldier at Goree in 1782, supplied the evidence as to the actual chastisement:—

With what sort of instrument was the punishment inflicted?—_Moore_: It was a rope.

Did you see the rope?—At a distance.

Could you form any judgment of the size of the rope?—It looked at a distance near upon an inch.

In diameter?—Yes.

Were there any knots in it?—Not that I know or ever heard.

What number of lashes were given?—Armstrong received eight hundred.

How do you know?—I counted them myself.

Lieutenant Poplett, of the African corps, an eyewitness of the flogging, though himself under arrest at the time, was in his evidence asked:—

After the circle had been formed, what did you see done to Armstrong?—_Poplett_: I saw Armstrong stripped, fastened to a gun-carriage, and flogged on his bare back by several black men, frequently changed, I believe, at every twenty-five lashes.

Can you tell how many lashes were inflicted?—I think eight hundred.

After these lashes were inflicted, what became of Armstrong?—I saw him supported towards the hospital.

Did you observe the rope that he was flogged with?—I did at a distance.

What might the distance be?—About forty yards, on an elevation of eleven feet.

Could you distinctly see what passed?—I could.

What sort of a rope was it that was used?—I can produce one.

_Mr. Gurney_: Is it the same rope that was used?—I had it on the evening of the 11th from one of the men who used it in the punishment of the 10th.

_Mr. Gurney_: That will not do.

_Mr. Wood_: Was it such a rope as that you have got there?—I believe it was.

_Mr. Wood_: Be so good as to produce that which you have. (_The witness produces a rope._)

_Mr. Wood_: Did you observe whether the rope that was used was knotted at the end in the same manner as that is?—I could not at that distance say positively that it was, but I believe it was.

Is it usual to inflict punishment with a rope like that?—I never saw such a thing done in the army before.

What is the usual instrument of punishment upon those occasions?—A cat-o’-nine-tails composed of small cord; if severe, generally of small log-line; but, if moderate, generally whipcord.

Do you happen to know whether Armstrong had ever been tried or convicted of any offence before this punishment was inflicted?—Not about that time, to my knowledge.

Mr. Peter Ferrick, the surgeon, corroborated the proof as to the punishment, and he was then asked:—

Did you attend this man to the hospital after the punishment had been gone through?—_Ferrick_: Yes.

How long did he live?—It was done on the 10th, and I think he lived till the 15th.

Did you attend him from day to day after the punishment till his death?—Yes, twice a day.

What do you think was the cause of his death?—I have supposed, from that time to this, that the punishment was the cause of his death.

_Lord Chief Baron Macdonald_: By “supposed,” do you mean that it is your opinion?—Yes.

_Mr. Fielding_: You said you did not arrive within the circle till the man was undergoing this punishment; therefore I will simply ask you, if, during the course of that day, or at that time, you saw any appearance of disorderly behaviour, tumultuous or mutinous?—Not the smallest.

Did you know of any?—Not any; I never heard of any till I heard it at the Privy Council the other day.

Were you near Armstrong shortly before the time of his death?—I visited him on the day on which he died.

If there are bruises occasioned by this instrument, is mortification more likely to ensue from that punishment being inflicted with this rope than with a common cat of nine tails?—Certainly; but that is reasoning from experience; I did not know that before.

Then, as a surgeon, looking upon this instrument as likely by its bruises to produce more mischief than a cat of nine tails, I ask what your opinion must necessarily be of a punishment to the extent of eight hundred lashes being inflicted upon a human body, whether the effect is not likely to be attended with death?—It is.

_Mr. Justice Rooke_: What was this man’s state of health before he received this punishment?—I believe he was in so good a state of health that he was never in my hands at all.

William Rosser, assistant-surgeon, gave the following evidence:—

Was Armstrong brought into the hospital after receiving punishment?—_Rosser_: He was.

You attended him till his death?—Yes.

Did you ever learn from him before his death that he expected he should die?—Yes; he said that, the minute he came into the hospital, to the men that brought him in.

What did he say?—He said he had been punished, and that he should die, by order of Governor Wall, by black men, without a court-martial; that was what he said when he was brought in first.

Cross-examined by Mr. Gurney:—

He did not drink any spirits in the hospital with your knowledge, I suppose?—No, except the garrison allowance that was brought in.

How much was the garrison allowance?—Half a pint of brandy, or a pint of wine.

He had his garrison allowance while he was in the hospital?—Yes, either half a pint of brandy or a pint of wine each day.

That he had every day?—Yes.

That he drank it?—That I cannot answer for.

He had it?—Yes, and he might drink it.

Did you ever see him leave any?—Indeed, I cannot tell, for I did not examine his bottle.

For anything you know, he did drink it; he had it if he chose?—He had it if he chose.

Had you any reason to see, or to observe, that he hurt himself by drinking any quantity of spirits after he came into the hospital?—I had not.

_Mr. Justice Lawrence_: Did you at any time see him drink any spirits?—I cannot recollect.

_Mr. Justice Rooke_: Had you any order not to let him drink spirits?—I had not any orders not to let him drink his garrison allowance, for that came into the hospital, and he might do as he thought fit with it.

The prisoner thus spoke in his defence:—

“I shall endeavour to state to your lordships and the gentlemen of the jury in as brief a manner as possible the real facts of the case.

“Finding my health in a very precarious state, I determined, in July 1782, to give up the government of Goree, and return to England. On the 10th of July, I rather think the 11th, but I will confine myself to the 10th, I prepared to embark on board a ship for England to return to Europe; in the morning of the 10th, I had a certificate from the officers of the garrison that the arrears were cleared off, and was perfectly satisfied that the account was settled. On the 10th, about eleven o’clock in the morning, all the men of the corps that were off duty came to the government house; I went out to them; they made a demand of short allowance of provisions that was due to them from Captain Adams; I explained that business to them so fully that I had not a right to pay it, that the men, in a very short time, dispersed and returned to the barracks. About two o’clock in the day they returned again very much intoxicated with liquor, and insisted on having the demand complied with. I expostulated with them for a length of time to no effect, and ordered Sergeant Armstrong to march the men back again to the barracks; he was then in the front, standing with his hat on; he refused, and said “he would be damned if he would until it was settled or the demand complied with.” I ordered the whole of them to face to the left and march off to the barracks; the answer to that was, “they would be damned if they would not immediately break open the stores and satisfy themselves.” Finding them seriously bent upon proceeding to extremities, and having no resource, if they had done so, nearer to me than England, I begged an hour or two to consider of it, and that I would give them an answer. They hesitated for some time, but at length they acquiesced, upon condition that I was not to leave the island till the business was settled. Armstrong then marched the men off without taking any further notice, shouting and making a very great noise, and saying that they had gained the victory.

“When I returned into the government house I sent for the officers of the corps; and in the interval, till the officers arrived, I walked out and was proceeding to the main-guard, to know the state of the garrison, to know if the main-guard were in support of those that were off duty. On my way I met Armstrong, Upton, Patterson, and several more, who told me that I had promised not to quit the island till they were satisfied, and that I should not go to the waterside until then. When I returned to the government house I found the officers there, who all agreed that immediate punishment was necessary to put a stop to the mutiny. I ordered Lieut. O’Shanley to go to the drum-major to desire him to have cats ready when called for. Lieutenant O’Shanley returned and reported to me that the drum-major had told him that the cats had been destroyed, and that I had best get away as soon as I could, for that the men would not suffer any punishment to be inflicted upon any one of them, inasmuch as they were all agreed.

“Captain Lacy then proposed punishing them by the linguist and his assistants, which was acquiesced in by the other officers; from the time of the soldiers departing it took up some time, till about four o’clock, when I told Captain Lacy that I would go down to the main-guard and have the mutineers brought upon the parade, and for him to come down with the linguist and his assistants as soon as he found the ring formed, that the people at the barracks might not be alarmed at knowing they were going to receive punishment. Immediately upon the parade being formed, the officers arrived, and the circle was formed; Captain Lacy, Lieutenant Fall, Lieutenant O’Shanley, and Mr. Ferrick, the surgeon, were on the parade in a very short time after. When I came upon the parade I asked the men if they had any claim to make upon me. A man, whose name I do not recollect, came forward and said he had, of the short allowance money that was due to him from Governor Adams. I then called upon Armstrong, he having no claim whatever, to account for his mutiny; when Armstrong was standing forward, Ensign Ford came running to me from the main-guard to inform me that the man that was confined was breaking from his arrest and was coming to the parade. I asked the ensign if he could not confine him; he told me he could not; that his guard would not obey him. Seeing there was no time to be lost to put a stop to it, I went off myself to the main-guard, and left Captain Lacy in charge of the parade. Upon the soldier seeing me coming he retired behind the guard that was turned out, in a manner as if he expected to be supported by the guard; but upon seeing me coming up to him, he was retiring, and I forced him into the guard-house. I was following him into the guard-house to see him well secured, when the sentry at the door clapped his bayonet to my breast and desired me to keep off, saying that I should not enter. I struck the bayonet out of his hand and put him prisoner with the other, and after having reprimanded the guard for disobedience of Ensign Ford’s orders, I returned to the parade. I ordered the artillery to be on the parade this evening, as I was afraid of the African corps; it was a circumstance which never happened in the garrison—the artillery being upon the parade at a punishment of the African corps—before.

“Upon my coming upon the parade I ordered Capt. Lacy, Lieut. Fall, and Lieut. O’Shanley to form a court-martial. Mr. Ferrick was at this time upon the parade. Armstrong was brought forward and charged by me with the mutiny; but as I did not choose to take away their lives I chose to try them by a regimental court-martial; and indeed I had it not in my power to form any other. Whilst Captain Lacy and Lieutenant O’Shanley were trying Armstrong, I was outside the circle; Captain Lacy came to me and reported that the court had sentenced Armstrong to receive eight hundred lashes. I returned into the circle and told the prisoner the sentence of the court-martial, which was, that he was to receive eight hundred lashes, to be inflicted by the linguist and his assistants with a small rope’s end, which is a small cord that was produced upon the parade by the linguist and shown to the surgeon before Armstrong had felt it. The surgeon approved of the cord, by saying it was not so bad as a cat-of-nine-tails. The punishment was then inflicted upon Armstrong; there was no other mode of punishment in the garrison; the African corps never had a halberd delivered to them; tying the person to the timbers of a six-pounder was the usual mode. Armstrong received his punishment and walked away with little appearance of concern, and with very little appearance of punishment. I beg to know, my lord, if I am to go further with respect to the other people?”

_Lord Chief Baron Macdonald_: “No, we have only this single case before us at present.”