Joseph Wall, the unfortunate subject of the following trial, was the
scion of a very respectable Irish family, and was the eldest son of
Garrett Wall, Esq., of Derryknavin. He was born in 1737, and entered the
British army at an early age. He was a brave and honourable man, but of
a severe and rather unaccommodating temper, and was not popular among
the officers and men, though he rapidly advanced in his profession,
having obtained early promotion for the gallantry he displayed at the
reduction of the Havannah in 1762. It was while Lieut.-Colonel and
Governor and Commandant of Goree, an island on the coast of Africa, that
he committed the offence which brought him to the scaffold—viz., the
murder of one Benjamin Armstrong, by ordering him to receive eight
hundred lashes on the 10th July, 1782, of which he died in five days
afterwards. Wall’s emoluments were, at the time, very considerable, as,
besides his military appointments, he was Superintendent of Trade to the
colony. His family was Roman Catholic, but, according to the exigency of
the then penal laws, he had to conform to Protestantism, to enable him
to hold his commission.
Some time after the account of the murder of Armstrong reached the Board
of Admiralty, a reward was offered for Wall’s apprehension, who had come
to England, and he was taken. He, however, contrived to escape while in
custody at Reading, and fled to the Continent, and sojourned there,
sometimes in France and sometimes in Italy; but mostly in France, under
an assumed name, where he lived respectably and was admitted into good
society. He particularly kept company with the officers of his own
country who served in the French army, and was well known at the Scotch
and Irish colleges in Paris. He now and then incautiously ventured into
England and Scotland. While thus, at one time in Scotland, he made a
high match. He wedded a scion of the great line of Kintail—viz.,
Frances, fifth daughter (by his wife, Lady Mary Stewart, daughter of
Alexander, sixth Earl of Galloway) of Kenneth MacKenzie, Lord Fortrose,
M.P., and sister of Kenneth, last Earl of Seaforth. Wall came finally to
England in 1797. He was frequently advised by the friend who then
procured him a lodging to leave the country again, and questioned as to
his motive for remaining; he never gave any satisfactory answer, but
appeared, even at the time when he was so studiously concealing himself,
to have a distant intention of making a surrender, in order to take his
trial. It is very evident his mind was not at ease, and that he was
incapable of any firm resolution either one way or the other. Even the
manner in which he did at last surrender himself showed a singular want
of determination, as he left it to chance whether the Minister should
send for him or not; for rather than go and deliver himself up, he wrote
to say “he was ready to do so”—a less becoming, but not a less dangerous
mode of encountering danger. His high-born wife showed him throughout
his troubles the greatest devotion: she was with him in Upper Thornhaugh
Street, Bedford Square, where he lived under the name of Thompson when
he was apprehended. It is most probable that, had he not written to the
Secretary of State, the matter had been so long forgotten, that he would
never have been molested; but once he was in the hands of the law, the
Government had but one obvious course, which was to bring him to trial.
This was accordingly done, and the judicial investigation took place, at
the Old Bailey on the 20th January, 1802. The judges who presided
were—The Right Hon. Sir Archibald MacDonald, Lord Chief Baron of the
Exchequer; the Hon. Sir Soulden Lawrence, one of the justices of the
Court of King’s Bench; and the Hon. Sir Giles Rooke, one of the justices
of the Court of Common Pleas.
The counsel for the Crown were the Attorney-General, Sir Edward Law
(afterwards Lord Ellenborough and Lord Chief Justice of the Court of
King’s Bench); the Solicitor-General, the Hon. Spencer Percival
(afterwards First Lord of the Treasury, and, while so, assassinated by
Bellingham); Mr. Wood (afterwards Sir George Wood and a baron of the
Exchequer); Mr. Plumer (afterwards Sir Thomas Plumer, and successively
Vice-Chancellor of England and Master of the Rolls); Mr. William
Fielding (afterwards a metropolitan police-magistrate, son of Henry
Fielding, the novelist); and Mr. Abbott (afterwards Lord Chief Justice
of the Court of King’s Bench and Lord Tenterden).
The counsel for the defence were Mr. Knowlys (afterwards Recorder of
London), Mr. Gurney (afterwards Sir John Gurney, a baron of the
Exchequer), and Mr. Alley.
The indictment was opened by Mr. Abbott; and while he was stating the
charge, the prisoner from the dock said to the Chief Baron, “My lord, I
cannot hear in this place; I hope your lordship will permit me to sit
near my counsel.” In which the Chief Baron replied, “It is perfectly
impossible; there is a regular place appointed by law—I can make no
invidious distinctions.”
The Attorney-General stated the case for the prosecution in a remarkably
able and lucid speech, which so fully details the whole horrible affair,
that I cannot do better than give the greater portion of it. After a few
preliminary remarks on the nature of the crime, the Attorney-General’s
address proceeded as follows:—
“Gentlemen of the jury,—The crime imputed to the prisoner I have stated
to you to be murder; the prisoner is charged, upon the present
indictment, with the murder of a person of the name of Benjamin
Armstrong, who was a soldier and serjeant in the garrison at Goree, of
which the prisoner at the bar was, at the time of Armstrong’s death, the
commander and governor. The circumstances that led to the punishment
which was the cause of the death of this person it will be for me
presently to state to you; and it will be for me, after I have so done,
to discuss in some manner that which is the probable, and which is not
only the probable, but which, from circumstances antecedent, I know to
be the actual, ground of defence which the prisoner will rely upon
before you for his deliverance this day.
“Gentlemen, Mr. Wall was, in the year 1782, commandant of the garrison
of Goree, which is an island upon the coast of Africa; he had under him
in command there a Captain Lacy, who afterwards succeeded him in the
command of that garrison; he had under him, likewise, a Lieutenant Fall,
a Lieutenant O’Shanley, an Ensign Ford, and Ensign Deering; these, with
Major Phipps, an officer of artillery, were, I believe, all the military
officers then at the place—at least, it does not occur to me, at
present, to mention any other military officer as then being there.
“The circumstances of the case now before us, you will recollect, arose
in the year 1782; the 10th of July, 1782, is the time when that death
was occasioned which is imputed to the prisoner at the bar as murder.
The prisoner returned to this country in the month of August, 1782; he
was apprehended for this offence in the month of March, 1784, under a
warrant from the Privy Council. You will bear in mind, gentlemen, that
most of the persons who, in respect to their local and official
situations, were the most material witnesses to establish his
innocence—if innocent he be—were living, and within the reach of process
from the criminal courts of this country, and might have been then
brought forward to establish his vindication, if, by such evidence, he
felt that he could have been vindicated from the charge now under your
consideration.
“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.