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troops were fatigued: the Court will recollect, how these troops were disposed of; there was a large force at the Plaza, consisting of part of General Lumley's brigade, and Sir Samuel Achmuty's brigade, and that part of the reserve which Lieutenant-General Whitelocke carried with him from the Coral to the Tauros. The remainder of the reserve appear to have had very little action. There was the 45th at the Residentia, who had never moved since seven on the morning of the 5th, when they took possession of the Residentia; and there was Colonel Mahon's corps of 1800 men, who had only marched the distance from Reduction to the Coral between the 2d of July and the 6th, that is about 14 miles, when this treaty was decided upon. It does not appear, therefore, that there was any very good ground for the opinion that the troops had incurred any great fatigue on the 6th; but it is stated, that the troops wanted confidence; and General Whitelocke, in his defence, has thought proper to insinuate, though not directly to assert, I think, that that want of confidence was to be referred to what had passed on the 2d of July; but, when the Court advert to the evidence given by Sir Samuel Achmuty, they! will judge whether the want of confidence Sir Samuel Achmuty stated, was not distinctly stated by him to be want of confidence in the general of the army, and expressed in terms, which he was unwilling to repeat, by the troops under him at the Tauros. How far that can be stated by Lieutenant-General Whitelocke, the want of confidence in himself, as the reason why he should be exempted from the operation of this clause, it will be for the Court to consider. Sir Samuel Achmuty proceeds to state, that the scattered state of the troops was a reason for his approv ing of the treaty; that Colonel Mahon might be attacked by the whole force of the enemy; that there was a difficulty in -procuring ordnance, stores, and provisions from the fleet. The loss there was every probability the army would sustain, if hostilities were recommenced. The difficulty of either burning or destroying the town with our artillery. The houses built with high terraced roofs, the bricks so soft that the shot would penetrate without shaking. The difficulty of effecting a retreat, having 2000 of our best troops in the possession of the enemy, and the danger which might have occurred even in the capture of the place; our number being totally inadequate. With respect to the disposition of the troops, the Court will recollect that each flank of the town was in our possession; the 45th at the Residentia, and the troops I have already mentioned in the Plaza, and that the corps under Colonel Mahou, with the remainder of the reserved corps, had possession of the rear. The Court must judge whether they could have been placed in a better position for the renewal of hostilities. With respect to the effect of batteries, this evidence is contradicted by those

whose peculiar duty it is to judge of the effect of artillery. It is in evidence from Captain Squire and Captain Fraser not only that above 30 pieces of cannon had been taken at the Plaza, with 600 barrels of gunpowder; but that Captain Fraser reported to Lieutenant-General Whitelocke, on the evening of the 6th, that he would pledge himself to have 30 pieces of cannon ready to play upon the town on the following morning; and the Admiral stated that the ordnance might have been landed, and that he had, when the truce was signed, the heavy artillery in the boats. As to the supposing of heavy loss, the Court will judge of it, and whether with the means of commencing a heavy fire upon the town from the Plaza del Tauros, and from the gun-boats, there was not ground for apprehending that much serious loss would have been incurred. You will find also, that Brigadier-General Craufurd and Colonel Pack concur in opinion, that the effect of batteries might have been tried with advantage from the Plaza; and it is stated by all the evidence, that this was an open populous city, defended chiefly by the armed population. It is for the Court to judge, whether under these circumstances General Whitelocke was justified in making no attempt with the means he had in his power, and in acceding to this capitulation. With respect to any discretion vested in him by his instructions, I do not think he has dwelt much upon it, and indeed, it is clear, from reading these instcuctions, that unless they are supposed to be contradictory to each other, the abandonment of Monte Video cannot be defended, except in a case of necessity; for, after stating particular circumstances which might arise, and make it neeessary to abandon Monte Video, and dismantle the place, circumstances certainly applying to the expedition, having obtained possession of a great portion of the country, what are the words "But two cases remain to be provided for, which, "however unlikely, must not be wholly passed over: one, "namely, that of your finding, on your arrival, that the places "hitherto occupied by his Majesty's troops, are no longer in "their possession; the other, that of its becoming necessary, " at any subsequent period, to abandon whatever had been be"fore possessed, and to withdraw the whole of the British force " from that country." It is, therefore, perfectly clear that there was no discretion upon the subject of abandoning Monte Video, when, by that abandonment, every thing we bad on the banks of the Plata was to be given up, unless in the case of necessity. Whether that case of necessity had arrived, which could justify the abandonment of all that we possess on the Plata, the Court will have to consider upon the evidence.

But there is another part of General Whitelocke's defence upon this subject of the Treaty which I cannot pass over in silence; I mean the strong stress which he has laid, both in his public and private dispatch, and since in his defence, upon the danger that existed to the safety of the prisoners, if hostilities had recommenced. I will not now call in question, whether there was real ground or not, to believe that that danger existed: I will admit that he thought it did. But, is it to be understood for the future, as an axiom in war, that because danger is stated perhaps truly to exist, such a threat from the enemy is to be submitted to by the general to whom it is addressed. Look to the consequences. The menace which has prevailed in one case will then be repeated in another, in hope of similar success. If the menace does not answer its object, may it not too probably be thought that the realizing that threat may be more effectual, and that the same feelings which have yielded to the threat in the one instance, will not stand against the execution of it in another? See what an encouragement to cruelty! What a temptation to experiments in blood! I do not charge General Whitelocke with being at all aware of the mischiefs of the doctrine his example was sanctioning. I admit that he was actuated by the humane motives he states, but I must contend that it was a false and short-sighted motive of humanity, which, like all other false and mistaken principles, defeats the object it meant to uphold. The safety of the prisoners is secured by the acknowleged laws of war, and by the mutual interest of the belligerent powers; but if once a dereliction of those laws and interests is to be admitted, as in this instance, and to be crowned with success, the principles themselves are subverted, and the best guarantee for the safety of the prisoners is destroyed. Instead of tamely acquiescing in this menace of General Liniers, the Spanish General should have been told that until that intimation was retracted, the door to negociation was closed; that if a hair of the head of any one British prisoner was touched, the Spanish General, his army, and the inhabitants should answer it with their lives. He should have been told, that if he had not authority to prevent such atrocity, and to secure the observance of the most sacred rights of war, it was he who ought to surrender; that, if he maintained his post under such disgraceful circumstances, he was no longer to be treated with as a general, but to be dealt with as a leader of banditti. Those are the sentiments which such an intimation should have called forth; they are grounded not more on genuine feeling than in sound policy; for never, I believe, did nature say one thing, and wisdom say another. But such a reply as this should have been accompanied by correspondent action, and you will consider, whether the means we had still in our power, if properly applied, would not only have secured the safety of the prisoners, but would have prevented this disgracful capitulation; or whether the experiment should not have been made, which, it appears, was not even attempted. Whatever may be your opinion of the innocence or guilt of General Whitelocke; whatever you may think of the other reason given by him or others, for acceding to the treaty, I trust there is but one opinion upon this part of the defence. I feel it my duty to protest against this new doctrine in the laws and practice of war. The refutation of it is more important for the interests of the army, and for the cause of humanity, than any thing which may result from this inquiry in other respects, 'or than any other consequences of this most unfortunate expedition. If you should be of opinion, that there are grounds upon which it must be taken, all or any of the grounds on which General Whitelocke has rested his defence, upon the 4th charge, are well founded, or that is not within the fair construction of this clause, it will then be for you to consider to what cause it has been owing, and by what means this gallant army, deserving of a better fate, was reduced to such a humiliating situation, as to be obliged to purchase its own safety, and the ransom of the prisoners, at the expense of such a sacrifice of national honour and advantages. The evidence is all before you, and I am sure that justice will have nothing to fear from your decision.

I am desired by General Whitelocke to read this part of the defence.

[The Judge Advocate read an extract from the defence, beginning, "I do not complain, because I do not feel that I have "a right to do so in such a case," ending, "Charges finally "settled."

General Whitelocke. That is all to which I referred. Judge Advocate. --Then I must beg to read on for my own justification.

[The Judge Advocate read a further extract, ending, "of myself only, but of others."]

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Judge Advocate. I have this paper put into my hands by General Whitelocke, which I will read:

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"Lieutenant-General Whitelocke had no knowledge of the " foundation of the previous examination of the Judge Advo "cate; and hearing only that the greater part of his staff had "been summoned and examined, could not but feel, that it was an unusual proceeding; he now entreats permission to state, that he feels both the motives and the conduct of the Judge Advocate, in this respect, to have been candid, and "liberal, and honourable, and one for which he owes him "thanks. Lieutenant-General Whitelocke begs, that the ob"servations made by him upon this subject, may be attributed " to a want of knowledge of the motives of the conduct pursued, " and to the feelings which he has described in his defence."

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