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not like ourselves, sitting here calmly and quietly considering the matter after the lapse of two or three years, thousands of miles away from the scene, but putting yourselves in his position, with all his responsibilities, every one urging him on and no one holding him back, with the general belief in the colony, which he shared—if you come to the conclusion that, under all these circumstances, he acted as a man of reasonable moderation and firmness óight have acted under such circumstances, then you ought not to present a criminal charge against him. Similar observations apply, of course, with stronger force to the other cases.
For if he might be excused for sending into the proclaimed district a man who was tried and executed, of course he would be excusable in sending thither men who were only flogged, and still more so those who were not tried or punished at all, but only imprisoned. This concludes all I have to say to you by way of direction upon the law of the case. It involves points of great importance not merely to the decision of this case, but for the guidance of persons in authority in our colonies and elsewhere. What remains to be said is rather in the way of assistance to you in the performance of your own functions. The learned Judge here analyzed the indictment and the evidence, in substance as above abstracted. With reference to the evidence, he observed that the first evidence put in on the part of the prosecution was the statement of Mr. Eyre before the Commissioners. He was informed that he need not say any thing to criminate himself, but he scorned to take advantage of that. He believed he had done what was right; and he answered every thing fairly, fully, and frankly. The first evidence in the case against him consisted of his own statements, which were all printed in the Blue Book, and the whole of which they should read ; for it was a well-known rule that if you chose to put in a man's statement against him you must take the whole of it, and cannot take the part which tells against him and disregard the part which may help him. If, for instance, he says he did such and such acts for such and such reasons, you cannot take his admissions against himself without also considering what were his reasons or his excuses for what he did. It may be that what he believed was not altogether true, but you will not, probably, have any doubt that he believed them to be true at the time. Further than that, when he says that he did so and so because he heard such and such things-that, of course, is no evidence that the facts were as he supposed them, but would be very important as showing what he believed at the time, and the grounds on which he acted. I call attention to these distinctions because they might not have occurred to you, and they are important. The whole question is for you—putting yourselves, as I have said, in the position of Mr. Eyre; knowing all that he knew, believing what he believed, and having all the information before you which he had—whether, taking all these things to be as he supposed them to be, they would justify what he did. You will have, therefore, to consider all that he said, and you must read the whole of his evidence. He in his evidence, in the most frank way, avowed what he did, and no one can doubt that he did send these sis persons into the district under martial law. But the whole of his account of the matter is to be considered. Next there is the oral evidence, which for the most part, however, does not carry the case beyond what Mr. Eyre himself admits. For instance, the witness Lake proves that martial law was in force at Morant Bay; he tells a frightful story of the man hanged by the Provost-Marshal because he gnashed his teeth, it is said, in pain or in rage while being flogged ; and no one can doubt that if this were so it was a most atrocious act; but there is not the slightest evidence that Mr. Eyre ever
heard of it. Not only is there no evidence that he directed it, but there is no evidence that he even heard of it. There is this, no doubt, to be considered, that when martial law is established it ought to be carefully looked to; that he put martial law in force, and that in this, and, I fear, other instances, terrible things were done. But I do not think that you can charge Mr. Eyre with these things. No doubt when martial law is in force in the sense of suspending the ordinary law and substituting summary procedure, common sense would tell a man that it should be carefully looked after. The Duke of Wellington once said that it came to this, that it was " the will of the commanding officer,"—a phrase which has been much criticized, and no doubt is not correct in the sense of something utterly arbitrary; but it is a discretionary power, and the person exercising it, therefore, ought to take great care that it is properly regulated. I cannot doubt that, owing to the want of care and control, and letting it “ run riot," a vast deal was done which ought not to have been done. But I could not see how this could be made matter of charge against Mr. Eyre. And it would seem that the prosecutors have adopted this view, for they have no charge of this kind. No doubt some
one ought to see to it that when the “dogs of war" are unslipped there should at least be a huntsman to control them. But the difficulty is in seeing who is to be responsible ; the responsibility is divided among so many. No doubt some one ought to have seen to this, but it is difficult to say who; and consequently I feel that this cannot be charged criminally against Mr. Eyre. The prosecutors take the same view, and there is no such charge in the indictment. The fault was in the Legislature, in not having provided when martial law was allowed that some particular authority-probably the Commander-inChief-should be held responsible for its fair, proper, and temperate execution. But the Legislature having omitted this, it cannot be charged as a crime against Mr. Eyre that he did not exercise full control over the execution of martial law. Then you have the evidence of the persons who were imprisoned, and one of them was flogged, under circumstances, as he narrates them, certainly most atrocious; but there is no evidence to connect Mr. Eyre with it. I cannot find that he was even aware of it, still less that he sanctioned or allowed it. He trusted people to execute martial law, and some of them in the most atrocious way misconducted themselves ; but he is not personally connected with it. So as to the evidence of one or two witnesses (Marsh and Rea) who were with the troops in one or two detachments, and described what occurred; and certainly they state most lamentable and terrible things, showing that there was a most lamentable want of discipline. But as to this part of the case the answer of Mr. Eyre is complete ; for when he directed the Commander-in-Chief to "cut off and capture the insurgents "-to prevent them from getting into the other parts of the island—the officers ought to have exercised proper discipline and control. There was a terrible failure of proper discipline, but you cannot say that Mr. Eyre is criminally responsible for the acts of the military. He would have been responsible if he had sent them with directions to do these things, but he is not responsible for their want of discipline. The learned Judge then briefly analyzed the indictment. As to the first three counts for proclaiming martial law, he said, they proceeded upon the supposition that there was no power to declare martial law, and that it was as illegal as if it was in London or Bristol, as to which he had already shown that it was otherwise, by virtue of the colonial statutes. The Governor might have been culpable if he had declared martial law when there was no occasion for it, but this could not be said under the circum.
stances. And, looking at the insurrection, the massacre, and the efforts of the insurgent negroes to rouse the country for the purpose of insurrection (said the learned Judge with emphasis), I have no hesitation in saying that not only there was no culpability in declaring martial law, but that probably the Governor would have been punishable if he had not declared it. Next, as to the more serious matter, the keeping the martial law up for thirty days, you must put yourselves, as I have said, in the position of Mr. Eyre, and say if you think he can be considered criminally responsible. You must remember that the statutes speak of “ apprehended insurrection” and of “ danger,” and that Mr. Eyre believed that there was an organized conspiracy; and, though the evidence does not lead me to that conclusion, still he might honestly think so. The question would present itself to his mind thus, “Shall I stop it? If I do not stop it, and the colony is consequently exposed to all the frightful horrors of insurrection, I shall have done a great mischief.” The criminality of Mr. Eyre, under these circumstances, must depend upon the extent to which you think that a man of calmness and firmness of mind might have so thought. You must, I repeat, put yourselves in his position, and make all allowance for a person in that position. Then there are the counts as to the case of Gordon, as to which, if you believe Mr. Eyre honestly thought that he was really guilty, and that there was such a danger from an organized conspiracy that it was necessary that he should be punished promptly in order to suppress the insurrection, then you ought not to find a true bill on these charges. Then as to the charges with reference to the flogging of Phillips. I have looked through the evidence in vain to find any proof that Mr. Eyre authorized it. He sent him to be tried, no doubt; but there is no evidence that he sanctioned what was done. So as to the act of the Provost-Marshal in hanging the man Marshal. And now I have concluded every thing I have to say to you, except as to the Bill of Indemnity, as to which there may be a doubt; I advise you, therefore, not to let it stand in your way if you think there is a case on all or any of the counts in the indictment.
The Grand Jury returned “ No true bill.”
RISK ALLAH . THE DAILY TELEGRAPH.
This was tried on the 13th of June at Nisi Prius before Lord Chief Justice Cockburn and a special Jury. It was an action against the proprietors of the Daily Telegraph for libel, the alleged libels being contained in certain letters from their correspondent at Brussels relative to the trial of Risk Allah there in October, 1866, for the murder of his ward, Readly, and also in a leading article upon it. The libels were complained of as representing that he was guilty of the murder, and, at all events, clearly guilty of forgery and fraud. The defendants did not acknowledge this and justify its truth, but pleaded “ Not Guilty”-i.e. a denial that there were any such imputations, or, if there were, that they went beyond the privilege attaching to a fair report and fair comments thereupon.
The whole question being, as the Lord Chief Justice more than once clearly laid down, whether the letters in substance amounted to a report which was fair, and whether, if so, the comments founded thereon were fair, of course the first question was what in substance the letters represented; and, in the next place,
whether those representations in substance were supported by what passed at the trial. It is not easy to collect and state clearly what the letters did really represent, because they were very lengthy, and were not in the form of regular reports, but of "letters from a correspondent," largely mixed with observations of a picturesque and descriptive character. On the other hand, as probably no one would seriously complain of matter of this kind unless it was libellous, it is sufficient to give such passages as were particularly complained of on that ground, adding, however, such passages as appeared to show that there was, at all events, no intention to be unfair. The letters were as follows:
“On the 30th of March, 1865, between the hours of seven and eight in the morning, a young Englishman, named Charles Readly, was killed in his bed at Antwerp by the discharge of a gun. Readly occupied a room No. 7 on the second floor of the Hotel du Rhin. He had for a travelling companion a person named Risk Allah. Immediately after the fatal discharge Risk Allah was arrested on the charge of having murdered Readly, but was subsequently set at liberty in consequence of the report of a Juge d’Instruction, who attributed the death of the young Englishman to suicide. Subsequent investigations, how. ever, induced the Belgian Government to renew the prosecution of Risk Allah.”
Then, after much personal description, came the substance of the acte d'accusation, which it was admitted by the plaintiff's counsel could not be complained of: “In the acte d'accusation of Risk Allah prejudicial statements and suggestions are introduced which counsel would never be permitted to use in this country; for example, references to former convictions of some of the prisoner's supposed companions."
It is necessary to mention here that the account of the acte d'accusation ended thus :-“It is pronounced to have been absolutely impossible that after firing the gun the unfortunate youth could have put his hands under the bedclothes. That Readly died by his own act seems incredible, and if the acte d'accusation be correct Risk Allah was the only person near the sleeping apartment of his step-son at the time when the fatal wound was inflicted."
But then the writer went on so as to show he was speaking of the acte d'accusation : “When the accusing document had been read right through," &c. The letter then, after this caution, stated the principal statements in the acte d'accusation of indictment, and it then proceeded, “When the accusing document had been read the President proceeded to interrogate the accused. With a sudden and impulsive energy, when asked whether he did not know that the sum of 50001. would revert to him under the contract of marriage, in case of Readly's dying before he attained the age of twenty-one, Risk Allah Bey protested his entire ignorance of any such provision. On every point of this tremendous acte d'accusation the prisoner was interrogated rigidly. His answers were shrewd, prompt, terse, and those of a man either strong in innocence or a very bold malefactor. In any case they were the answers of a man more than commonly intellectual.”
So much for the first letter. Then in the next there was this: “I have heard from witnesses and others many opinions about Risk Allah, and I may say, without exactly feeling bound to say it, that the full half of the personal testimony is in his favour—that is, that a great many people don't think he murdered Readly, though they believe him guilty of forgery and fraud; and the very same persons who take this view are not by any means disposed to pity Risk Allah. ... I have, indeed, perceived a very general
readiness to acquit, on the forcible proposition that he is a cross between a serpent and a tiger.”
This, however, seemed to be meant merely as a personal expression, for the next passage was, “ There is no question that the man is handsome," &c. Then followed a piece of personal description, and then came a statement of some evidence as to close intimacy between Risk Allah and certain dishonest persons. Then came the statement of the evidence of a witness called to show Readly's disinclination to suicide, but who had made a deposition to the contrary effect, which latter deposition was referred to and was stated in the report as fairly as the other evidence. Then in a third letter came, after much matter of dramatic description, a most important passage, partaking of the character of a report, stating the President's interrogation of the accused, which was of a hostile character, but to which the answers of the accused appeared to be given as fully and fairly as the inquiries. And an episode in which the prisoner's able counsel utterly demolished a piece of spurious evidence against him was described as dramatically as any thing else. The letter at its conclusion contained this important passage with reference to a most important witness, “ The witness being rather bound, if any thing, to excuse the authorities of the city for having released Risk Allah, described the position of the body in language as guarded and reticent as possible, but still very much of a kind to destroy the theory of suicide, and, by consequence, to set up the theory of deliberate murder."
In the fourth letter there was a full statement of the evidence given as to the settlement executed on Risk Allah's marriage with his wife, with a view to show that he would gain by her death, and also by Readly’s. Then came another witness, as to whom there was this passage :
“The President.—Risk Allah says he was ignorant of the terms of his wife's settlement. Will you say whether, in your judgment, that could have been possible ?
“ Witness.—I do not think it could have been possible.
“ Here Risk Allah rose and attempted to confute some of the witness's statements, which were, indeed, rather based on opinion than absolute fact. The failure of the accused to demonstrate any remote probability of his having married without being acquainted with the conditions of the contract was so evident that M. Lachaud (his advocate), putting the best face on the matter, motioned him to sit down, as if the point were not worth contesting.”
Then came a notice of the evidence for the prosecution as to the experiments of “experts,” with a view to show that the theory of suicide was not tenable, because it was impossible for a person whose body was found in such a position to have shot himself. The evidence of an “expert” on this point was given very dramatically. Then came this passage, giving the general effect of the evidence on the subject, “ One of the witnesses, a doctor, spoke to this effect, When I entered Readly's chamber the body was in the attitude of one who had slept, the head being turned towards the wall. We concluded from the autopsy that death must have been quite instantaneous. Only on the supposition that the body had been moved, and its position altered, could we believe this to be a case of suicide. If the arms had not been placed down by the sides of the corpse by some person after Readly's death, it was no suicide most certainly.' All other evidence hitherto given has confirmed this view. Down to the time of the Court's rising to-day forty witnesses have been examined.”