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 UNIVERSITY OF CALIFORNIA 
 
 AT LOS ANGELES
 
 R, ^/44 
 
 PROCEEDINGS 
 
 ON 
 
 AN INFORMATION FILED EX OFFICIO, 
 
 BY 
 
 ty\$ fl^ajejsKp'g SUttorttep General, 
 
 AGAINST 
 
 JOHN HUNT, AND LEIGH HUNT, 
 
 PROPRIETORS OF 
 
 THE EXAMINER, 
 
 FOR PUBLISHING AN ARTICLE ON MILITARY PUNISHMENT, WHICH 
 ORIGINALLY APPEARED IN 
 
 Drakard's Stamford News : 
 
 TRIED 
 
 In THE COURT OF KING'S^ BENCH at WESTMINSTER, 
 On Friday, February 22, 1811, 
 
 BEFORE 
 
 The Right Honourable Lord ELLENBO ROUGH, 
 
 Chief Justice, &c. 
 
 AND A SPECIAL JURY. 
 
 " The perpetual recurrence to the infliction of Infamy on a 
 " Soldier; by the punishment of flogging, is one of the most 
 " mistaken modes tor enforcing discipline which can be conceived." 
 
 The Hon. Brigadier-General Stezvart. 
 
 dtamfbto : 
 
 PRINTED and published by AND FOR JOHN DBAKARD, 
 
 AND SOLD BY ALL THE BOOKSELLERS 
 
 IN TOWN AND COUNTRY. 
 
 1811.
 
 us 
 
 ADVERTISEMENT. 
 
 ~4 
 SB 
 -7 
 
 A.N apology is due, not so much to the Reader, as to tho 
 O Parties concerned in the following Trial, for the imperfection 
 ti of the report now submitted to the Public. 
 ,2 Every exertion was made to have the proceedings taken 
 down correctly : but it is feared that the known difficulty 
 which exists in the way of tracing accurately the rapid 
 transitions of eloquence, and the nice turns of acute reason- 
 ing, has operated in the present instance to the disadvantage 
 of the different speakers, whose sentiments and language 
 have undoubtedly been injured in transferring them to the 
 following pages. 
 S> But, for every useful purpose to the Public, our report 
 o will be found fully adequate. On the general importance of 
 2J. the trial, as connected with the most valuable and efficient 
 rj right of the subject, on its interest arising from the 
 peculiar circumstances of the period, on the energetic 
 eloquence displayed by Mr. Brougham for the Defence, 
 and on the fortitude manifested by the Jury, the reflection 
 of the reader will suggest all that it would be proper for 
 us to say. 
 
 THE EDITOR OF THE STAMFORD NEWS 
 
 March 1, 1811. 
 
 < 
 
 298946
 
 TRIAL. 
 
 IN THE KINGS BENCH. 
 THE KING 
 
 AGAINST 
 
 JOHN HUNT, AND JOHN LEIGH HUNT. 
 
 REPORT of the Proceedings upon this Information, tried 
 in the Court of King's B>ench, at "Westminster, on Friday 
 the 22d of February, 1811, before the Right Honourable 
 Lord Ellen borough, Chief Justice, and a Special 
 Jury. 
 
 [Upon calling over the names of the Special Jury, only two 
 appeared out of the whole Pannel.J 
 
 Attorney General I pray a tales. 
 
 The Common Pannel was then called, and the names of the 
 Jurors to try the Information, were as follow: 
 
 SPECIAL JURY. 
 
 1. Samuel Bishop, of Upper Grafton-street, Esq. 
 % George Baxter, of Church Terrace, Esq. 
 
 TALES PURSUANT, &C. 
 
 3. Robert Maynard, of Glasshouse-street, Oilman 
 
 4. Walter Row, of Great Marlborough-street, Stationer 
 
 5. Richarb Bolton, of Silver-street, Porkman 
 
 6. John Rotton, of Vigo-lane, Cutler 
 
 7. Henry Perkins, of Great Marlborough-street, Grocer 
 
 8. William Lonsdale, of Broad-street, Cabinet-maker 
 
 9. John Seabrook, of Rupert-street, Cook 
 
 10. Thomas Rixon, of Carnaby-street, Victualler 
 
 11. John Nunn, of Great Crown-court, Victualler 
 
 12. David Millar, of Carnaby-market North, Baker 
 
 B
 
 2 
 
 Mr. Richahdson. 
 May it please your Lordship, Gentlemen of the Jury : * 
 
 This is an Information, exhibited by hisMajesty's Attorney 
 General, against the defendants, JohnHunt and Leigh Hunt? 
 charging them with having printed and published a sedi- 
 tious libel. The Defendants have pleaded that tbey are 
 Not Guilty, which you are to try. 
 
 Mr. Attorney General May it please your Lordship, 
 Gentlemen of the Jury: I have thought it incumbent on rae 
 to prosecute the Defendants for the publication of the libel 
 which will be proved before you this day. The tendency o i 
 the' libel is to create disaffection in the minds of the soldiers 
 composing the armies of this country ; to represent to them, 
 that they are treated with improper and excessive severity, 
 and to represent to them, what is still more mischievous, 
 that the treatment of the French soldiers, under Buonaparte, 
 and the means used to oblige them to undertake the military 
 service in France, are preferable to those which are made 
 use of in Great Britain, towards the soldiers of our army. 
 The effect of this is obvious : it tends to raise a discontent 
 and disaffection in the minds of the soldiers themselves ; it 
 tends to disincline others from entering into the service. If 
 that effect was to be produced, how fatal the consequences 
 must be to the very existence of the country, it is unnecessary 
 for me to state. Gentlemen, as the publishers of this libel 
 have chosen to select for their subject, or rather for their 
 motto, that which they suppose me to have said, when I 
 was addressing a jury upon a similar occasion, it is neces- 
 sary I should give you some explanation of the circum- 
 stances under which that sentence the Defendants have 
 chosen for their motto, was spoken by me. The words 
 with which they commence their publication are these : 
 " The aggressors were not dealt with as Buonaparte would 
 " have treated his refractory troops. Speech of the At- 
 i( torney General" I must let you know on what occasion 
 that observation was made by me j it became my duty te
 
 prosecute a person of the name of Wm. Cobbett, for a libel 
 of the same description as the one which is now submitted to 
 your consideration : in that libel Mr. Cobbett had animad- 
 verted on the conduct of the military in the Isle of Ely 
 towards certain persons belonging to the Local Militia, who 
 were charged with mutiny. He took his account of the 
 transaction from a newspaper published in London, and 
 with that he opened his subject : it professed to give an ac- 
 count of the mutiny, and of the means used to suppress it : 
 it stated the circumstance of calling in other military force to 
 suppress the mutiny ; that it was suppressed ; that a court- 
 martial was held on the offenders, and that they were sen- 
 tenced to receive a punishment, part of which was inflicted, 
 and part spared, or remitted. Having chosen this for his 
 subject, the Defendant in that case animadverted with ex- 
 treme severity on the conduct of those who had undertaken, 
 and successfully undertaken, to suppress this mutiny, and 
 to inflict the necessary degree of punishment on the guilty 
 parties. A part of the sentence was corporal punishment. 
 He insulted the people of Ely for suffering such a thing to 
 pass in their presence. He took occasion, and it is to this 
 I beg your attention, for it is connected with the present 
 subject he took occasion to speak of the manner in which 
 Buonaparte was supposed to recruit his army, and he pro- 
 ceeded to taunt and revile those who reflected on the means 
 used by Buonaparte, stating that the same discipline existed 
 with respect to the British soldiers, and that it was therefore 
 ridiculous to animadvert on the severity exercised by 
 Buonaparte towards his soldiers, when the same system of 
 discipline and severity was resorted to in this country with 
 regard to our soldiers evidently meaning to insinuate, and 
 actually stating to the public, that the means used to recruit 
 the British army were as bad or worse than those used to 
 recruit the French army. In observing on this libel, and 
 in observing also, that after the sentence passed on these 
 inen, who, disregarding all military subordination, had risen
 
 on their officers after observing upon these circumstances, 
 and stating that part of the sentence was remitted, I suppose 
 1 did say that " The aggressors were not dealt with as Buo- 
 naparte* Would have treated his refractory troops," That I 
 repeat ; for I have no doubt they v. aid have been treated 
 with much greater severity, and that they would not have 
 escaped with their lives. 
 
 Mr. Cobbett having b en convicted filf that libel, the pub- 
 lishers of the present libel take up the subject ; and as Mr. 
 Cobbett from a newspaper took up an account of a parti- 
 cular transaction in the Lie of Ely, bo these publishers col- 
 lect from all the newspapers they can find, accounts of the 
 different punishments in the army, a. id having collected 
 them, they present L them in a mass, aggravating the 
 manner in which these punishments weie inflicted, and evi- 
 dently endeavouring, by the mode in which they represent 
 them, to inflame the minds of the soldiers against that code 
 of laws which must be enforced while we have a hope of 
 maintaining discipline; to render them disaffected to the 
 service, and to subject the public to those calamities which 
 must follow, if that effect was once produced. 
 
 In all countries where it is necessary armies should be 
 supported, it is absolutely imperious and indispensable that 
 they should be governed by laws not applicable to the 
 general state of the community. It is fit that obedience 
 should be enforced in all stations of life: servants 
 should be obedient to their masWs, children to their 
 parents; and in all well-ordered societies there ought 
 to exist regulations which will enforce those duties : 
 if, however, your regulations in these instances, should fall 
 short, the consequences, though they are sad and painful to 
 reflect upon, are not fatal to the public peace ; they end in 
 themselves; although in the particular family in which the 
 subordination is destroyed, a corresponding degree of insub- 
 ordination is produced, and much unhappiness ensues. But 
 with respect to the military part of the community, if once
 
 5 
 
 the code of laws you have established, and the mode in 
 which you execute those laws, be found insufficient to keep 
 Ihem within the due bounds of obedience to their superiors? 
 if once they are let loose, I have said before, that it is unne- 
 cessary to point out the mischiefs that must inevitably 
 follow, not only as they go to the destruction of the Army 
 itself, but as carrying along with them the downfall and 
 destruction of the whole State. It is, I repeat, unnecessary 
 for me to point out the dreadful consequences of such a ca- 
 lamity. Gentlemen, I say this libel has the immediate ten- 
 dency to produce the evils to which I am adverting ; for 
 what can tend more directly to promote that end, than by 
 representing to those who must live subject to the military 
 code of laws, that it is a cruel and oppressive code, and 
 that it is administered with an unnecessary degree of cruelty 
 and severity? Can that be exceeded? Yes it can : while 
 you have such an enemy to deal with as the one you have, 
 and while your army is necessarily opposed to that enemy, 
 the mischief of such a publication would be greatly in- 
 creased, if, in addition to aggravating the supposed hardships 
 of the British army, they are brought into comparison with 
 the system adopted in the French army, and the preference 
 is given to that of the French army ; and yet this is not 
 done obliquely, but directly and avowedly, by the libel now 
 before you. Having thus pointed out the principles which 
 are applicable to this case, and which I am persuaded will 
 decide your judgment upon it, I shall proceed to state the 
 libel itself. Jt begins: u One thousand lashes! from the 
 " Stamford News. The aggressors were not dealt with as 
 " Buonaparte would have treated his refractory troops. 
 " Speech of the Attorney General" This I take to bea con- 
 tinuation of the libel to which that part of my speech was 
 addressed. " Corporal Curtis was sentenced to receive one 
 '* thousand lashes, but, after receiving twohundred, was, on 
 " his own petition, permitted, to volunteer into a regiment 
 " on foreign service. William Clifford, a private in the 7tk
 
 " Royal Veteran Battalion, was lately sentenced to receive 
 " one thousand lashes for repeatedly striking and kicking his 
 " superior officer. He underwent part of the sentence, by 
 " receiving seven hundred and fifty lashes, at Canterbury, 
 1 ' in presence of the whole garrison. A garrison court- 
 -martial has been held on board the Metcalf transport, at 
 " Spithead, on some men of the 4th regiment of foot, for dis- 
 " respectful behaviour to their officers. Two thousand six 
 '* hundred lashes were to be inflicted among them. Robert 
 u Chilman, a private in theBearstead and Mailing regiment 
 " of Local Militia, who was lately tried by a court-martial 
 " for disobedience of orders and mutinous and improper be- 
 " haviour, while the regiment was embodied, has been found 
 '* guilty of all the charges, and sentenced to receive eight 
 *' hundred lashes, which are to be inflicted on him at Chat- 
 " ham, to which garrison he is to be marched for that pur- 
 " pose." 
 
 Then they give you the authority from which they de 
 rive the information London newspapers. So that you see 
 they have collected from all the London newspapers and 
 perhaps you are to learn that there are sixty published every 
 week all the instances of military punishment, and pre- 
 sented them to the public indignation, in a mass, through 
 the medium of this libel. Now to pause for a moment 
 here Do you recollect the number of troops in our ser- 
 vice ? In the Local Militia there are 180,000. I am not 
 sure whether the original militia amount to more than 
 80,000. If they amount to 80,000, that would be 260,000 
 men, besides all the regulars engaged in our line. Now is it 
 fair to pick out all the punishments recorded in all the 
 newspapers you can find, without presenting at the same 
 time to public observation the number of persons who are 
 subject to the military code ? Is it the course of proceeding 
 that would be followed by a man who had no improper object 
 in view ? I should say, even on the statement, that it would 
 not ; but this is only the introduction to the libel this is
 
 only the theme on which the libeller afterwards discourses 
 hear how he proceeds : " The Attorney General said 
 " what was very true ; these aggressors have certainly not 
 il been dealt with as Buonaparte would have treated his re- 
 u fractory troops.'* 
 
 Why, in the outset, compare the treatment of the British 
 forces with those of Buonaparte ? Does the writer mean to 
 desire of Government to abolish the British military code, 
 and substitute that of Buonaparte to propose that we 
 should adopt laws by which men are dragged from their 
 families and homes, and obliged against their will to enter 
 the ranks of the army ? Surely ! surely ! if his proposal is 
 to substitute the code he prefers for our own, I should be 
 wanting in my duty if I did not dare to stand up to pro- 
 secute the man who had published a paper recommending 
 such a plan. Now how does he proceed ? " not as Buona- 
 " parte would have treated his refractory troops nor indeed 
 " as refractory troops would be treated in any civilized coun- 
 " try whatever, save and except only this country. Here 
 <c alone," (he proceeds with the libel) " in this land of liberty, 
 u in this age of refinement, by a people who with their usual 
 u consistency have been in the habit of reproaching their 
 <( neighbours with the cruelty of their punishments, is still 
 <c inflicted a species of torture, at le:c ! as exquisite as any 
 ** that ever was devised by the infernal ingenuity of the In- 
 il quisition." Why, military punishments are severe, most 
 unquestionably : but do you think that it is the interest of 
 those to whom the consideration of those punishments be- 
 longs, to render them more severe than is necessary ? Is 
 it not requisite that they should be attended with sufficient 
 severity to ensure immediate and prompt obedience to the 
 orders issued to men from their superiors ? The libel goes 
 on : " He, as the Attorney General, justly says Buonaparte 
 " does not treat his refractory troops in this manner." AH 
 this, you see, is by way of comparison, as to the manner of
 
 8 
 
 treating- British soldiers and French troops. i( There is not 
 " a man in his ranks whose back is seamed with thelacera- 
 " ting cat-o'-nine-tails ; his soldiers have never yet been 
 <; brought up to view one of their comrades stripped naked, 
 " his limbs tied with ropes to a triangular machine his back 
 " torn to the bone by the merciless cutting whipcord, ap- 
 " plied by persons who relieve each other at short intervals, 
 u that they may bring the full unexhausted strength of a 
 ** man to the work of scourging. Buonaparte's soldiers have 
 - never yet with tingling ears listened to the piercing screams 
 u of a human creature so tortured they have never seen the 
 " blood oozing from the rent flesh they have never beheld a 
 " surgeon ,with dubious look, pressing the agonizing victim's 
 w pulse, and calmly calculating, to an odd blow, how farsuf- 
 " fering may be extended, until in its extremity it encroach 
 *' upon life. In short, Buonaparte's soldiers cannot form any 
 " notion of that most heart-rending of all exhibitsons on 
 " this side Hell, an English military flogging." What is the 
 tendency of all this, but to raise and lift up the French 
 soldier, and to debase and degrade in his own eyes the 
 English soldier? The writer proceeds " Let it not be 
 " supposed that we intend these remarks to excite a vague 
 " and indiscriminating sentiment against punishment by mi- 
 " litary law : no, when it is considered that dicipline forms 
 " the soul of an army, without which it would at once dege- 
 " nerate into a mob when the description of persons which 
 " compose the body of what is called an armj', and the 
 " situation in which it is frequently placed, are also taken 
 <r into account, it will, we are afraid, appear but too evident 
 "that the in ilitary code must still be kept distinct from 
 " the civil, and distinguished by greater promptitude and 
 " severity. Buonaparte is no favourite of ours, God wot; 
 " but if we come to balance accounts with him on this 
 " particular head, let us see how matters will stand." 
 I bvg you to observe how this account is stated, and with
 
 what extreme reserve those acts of severity exercised by Buo- 
 naparte* are introduced. " He recruits his ranks by force; 
 " so do we." Putting us upon an equality, as if the same 
 degree of force was used to recruit the Array in this coun- 
 try as in France. li We flog those we have forced ; he does 
 " not. Hut, it may be said, he punishes them in some man- 
 i( ner; that is very true. He imprisons his refractory troops, 
 " occasionally, in chains; and, in aggravated cases, he puts 
 " them to death ;" lightly passing over the circumstances of 
 his putting his refractory troops in chains, and sometimes 
 punishing them with death. " But (he proceeds) any of 
 " these severities is preferable to tying a human creature up 
 " like a dog, and cutting his flesh to pieces with whipcord. 
 i( Who would not go to prison for two years, or indeed for 
 " almost any term, rather than bear the exquisite, the almost 
 " insupportable torment, occasioned by .the infliction of seven 
 *' hundred or a thousand lashes ? Death is mercy compared 
 " with such sufferings." Gentlemen, if there is to be an al- 
 teration in our military code, it must be by adding to the 
 number of cases in which death is inflicted; and if a pro- 
 posal was made for adding to them, I should like to know 
 in what terms of reproach the publishers of this libel would 
 attack those who supported such a regulation. Then the 
 writer goes into a statement of the manner in which this 
 punishment is inflicted, which it would be very easy for 
 ]him to do, with respect to any species of punishment on 
 any offender. He says : " We give all credit to the wishes of 
 " some of our great men ; yet while any thing remains to us 
 '* in the shape of free discussion, it is impossible we should 
 '.' sink into the abject slavery in which the French people are 
 t( plunged. Although we do not envy the general condition 
 " of Buonaparte's subjects, we really (and we speak the ho- 
 " nest conviction of our hearts) see nothing peculiarly pitia- 
 " ble in the lot of his soldiers, when compared with that of 
 " our own. Were we called upon to make our election be- 
 "tween the services, the whipcord would at once decide us." 
 
 c
 
 10 
 
 So that you see, striking a balance between the supposed 
 hardships in our army, and those which he states belong 
 to the French army, he gives the decided preference to the 
 condition of the soldiers in the army of the Corsican. Now, 
 Gentlemen, can you hear this without indignation ? Is it 
 possible for any creature endowed with human reason, not 
 to see that the tendency of this publication is to alienate and 
 estrange the minds of the British soldiers from the service, 
 and to disincline those who have not entered into the ranks, 
 but who might be inclined to do so, from entering into such 
 service? Can any thing be more mischievous than present- 
 ing to the public a comparison between the condition of a 
 British and French soldier, and giving the preference to 
 the latter ? You will hear the libel read The whole of it 
 is equally offensive every line has the same tendency; 
 when you shall have heard it, I am sure you will entertain 
 no doubt that its tendency is such as I have described it ; 
 and I am persuaded you will also hear from his lordship, 
 for it will be his duty to state to you his opinion on the 
 subject, that this is a most mischievous and seditious 
 libel. 
 
 Henry Baldwin Baven sworn, and examined by Mr. 
 Garrow. 
 
 Have you got a certified copy of the affidavit filed at the 
 Stamp-office ? 
 
 I have. 
 
 Signed by the Commissioners ? 
 
 Yes, I have. 
 
 Did you see the Commissioners sign it? 
 
 Yes, I did. 
 
 Mr. Lowten. The affidavit is sworn the 31st of Dec. 
 1807, by John Hunt and Leigh Hunt. 
 
 Have you got a printed newspaper with the title of 
 Examiner ? 
 
 Yes.
 
 11 
 
 Does it, in other respects, conform to the description of 
 that paper in the affidavit ? 
 
 Yes. 
 
 Mr. Garrow. Your lordship knows the act of parlia- 
 ment makes that sufficient evidence of the publication. 
 
 Q. by I/)rd Ellenborough. Did you purchase it ? 
 
 A. No. 
 
 Mr. Garrow. We are only required to produce it. 
 
 Mr. Brougham. I submit that nothing has been proved 
 respecting Leigh Hunt; at least the conformity of the paper 
 is not proved as far as regards Leigh Hunt John Hunt is 
 alone mentioned at the foot of the paper. 
 
 Mr. Lowten. The affidavit says that John Hunt is the 
 printer. 
 
 Lord Ellenborough. It is the affidavit of both. 
 
 Mr. Brougham. The affidavit, by John Hunt and Leigh 
 Hunt, I apprehend, brings home the fact of the property 
 being their joint property : but the prosecutor has to prove 
 another point ; he has to prove that the paper produced is 
 the paper "whereof the property is in these two persons. 
 
 Lord Ellenborough. We will read the provision in the 
 act of parliament. 
 
 Mr. Attorney General. The 9th section is in these 
 words : 
 
 38th GEO. III. CAP. 78. 
 
 Sec. 9. " And be it further enacted, That all such affidavits 
 and affirmations as aforesaid shall be filed and kept in such a 
 manner as the said Commissioners shall direct, and the same, or 
 copies thereof, certified to be true copies, as hereinafter is men- 
 tioned, shall, respectively in all proceedings, civil and criminal, 
 touching any newspaper or other such paper as aforesaid, which 
 shall be mentioned in any such affidavits or affirmations, or 
 touching any publication matter or thing contained in any 
 uch newspaper or other paper, be received and admitted as
 
 12 
 
 conclusive evidence of the truth of all such matters set forth in 
 such affidavits or affirmations as are hereby required to be there- 
 in set forth, against every person who shall have signed and 
 sworn or affirmed such affidavits or affirmations, and shall also 
 be received and admitted, in like manner, as sufficient evidence 
 of the truth of all such matters against all and every person 
 who shall not have signed or sworn or affirmed the same, but 
 who shall be therein mentioned to be a proprietor, printer, or 
 publisher of such newspaper or other paper, unless the contrary 
 shall be satisfactorily proved" with a proviso that if any per- 
 son should have delivered, previous to the publication of the 
 paper to which the proceedings relate, an affidavit that he had 
 ceased to be printer, &c. he should not be so deemed after such 
 delivery. 
 
 This point was expressly decided in the case of the 
 King against While. There is a clause that says the pro- 
 duction of a paper corresponding with the description in 
 the affidavit, shall be prima facie evidence. Section 1 1 states : 
 
 Sect. XL " And be it further enacted, that it shall not be ne- 
 cessary, after any such affidavit or affirmation, or a certified copy 
 thereof, shall have been produced in evidence as aforesaid against 
 the persons who signed and made such affidavit, or are therein 
 named according to this act, or any of them, and after a news- 
 paper, or other such paper as aforesaid, shall be produced in 
 evidence, intituled in the same manner as the newspaper or 
 other paper mentioned in such affidavit or copy is intituled, and 
 wherein the name or names of the printer and publisher, or 
 printers and publishers, and the place of printing, shall be the 
 same as the name or names of the printer and publisher or 
 printers and publishers, and the place of printing, mentioned in 
 such affidavit or affirmation, for the plaintiff, informant, or pro- 
 secutor, or person seeking to recover any of the penalties given 
 by this act, to prove that the newspaper or paper to which 
 such trial relates, was purchased at any house, shop, or office be-
 
 13 
 
 longing to or occupied by the defendant or defendants, or any 
 of them, or by his or their servants or workmen, or where he 
 or they, by themselves or their servants or workmen, usually carry 
 on the business of printing or publishing such paper, or where 
 the same is usually sold. 
 
 Mr. Brougham. My objection is, that the affidavit states 
 John and Leigh Hunt to be the proprietors; and the question 
 arises, whether the paper produced is the paper to which 
 their affidavit refers ? The paper only states John Hunt 
 to be the printer, without any mention of Leigh Hunt. 
 
 Mr. Attorney General. My learned friend loses sight 
 of that which is the only support we have, I mean the act 
 of parliament. The act of parliament says, that if a paper 
 is produced corresponding with the description of the 
 paper intended to be published, the production of that 
 paper shall be evidence against the persons who made the 
 affidavit, that it is their paper. 
 
 Lord Ellenborough. As I understand the act, it makes, 
 after the affidavit has been made, the publication of a 
 paper with a corresponding title, prima facie evidence, or 
 it is no more, and is liable to be rebutted, that it is pub- 
 lished by the person who is proprietor. It is only prima facie 
 evidence. You may shew to the contrary. 
 
 Mr. Attorney General. The point was decided in the 
 case of the King against Hart and White. 
 
 Lord Ellenborough. What is the act ? 
 
 Mr. Garrow. TheSSlh Geo. 3d,c. 78. 
 
 Mr. Brougham. It is with great reluctance I press this. 
 I wish to read two lines further, in order to suggest that 
 there does appear to be the variance I have mentioned : 
 ** And be it further enacted, that it shall not be necessary, 
 after a certified copy, &c." {Vide Jet.) Now we admit 
 the title is the same. 
 
 Lord Ellenborough. The printer and publisher are the 
 same, though the other person is enrolled as a proprietor.
 
 14 
 
 It most literally observes the prescription of the act of par- 
 liament. 
 
 The publication was read by Mr. Lowten. 
 
 ONE THOUSAND LASHES!!" 
 
 (From the Stamford News .) 
 " The aggressors were not dealt with as Buonaparte would 
 " have treated his refractory troops." 
 
 Speech of the Attorney General. 
 
 " Corporal Curtis was sentenced to receive ONE THOU- 
 " SAND LASH ES, but, after receiving two hundred, was, 
 " on his own petition, permitted to volunteer into a rc- 
 " giment on foreign service. William Clifford, a private 
 " in the 7th Royal Veteran Battalion, was lately sen- 
 " tenccd to receive ONE THOUSAND LASHES, for 
 44 repeatedly striking and kicking his superior officer. 
 " He underwent part of his sentence by receiving seven 
 " hundred and fifty lashes, at Canterbury, in presence 
 " of the whole garrison. A Garrison Court Martial has 
 " been held on board the Metcalf transport, at Spithead, 
 u on some men of the 4lh regiment of foot, for disre- 
 " spectful behaviour to their officers. TWO THOUSAND 
 " SIX HUNDRED LASHES were to be inflicted 
 " among them. Robert Chillman, a private in the 
 " Bearstead and Mailing regiment of Local Militia, who 
 " was lately tried by a Court Martial for disobedience of 
 " orders, and mutinous and improper behaviour while 
 11 the regiment was embodied, has been found guilty of 
 " all the charges,, and sentenced to receive EIGHT 
 HUNDRED LASHES, which are to be inflicted on 
 " him at Chatham, to which garrison he is to be marched 
 " for that purpose. London Newspapers. 
 
 lc The Attorney-General said what was ycry true : 
 " these aggressors have certainly not been dealt with as Buo- 
 " naparte would have treated his refraetory troops ; nor 
 " indeed as refractory troops would be treated in any civi-
 
 15 
 
 fl lized country whatever, save and except only this 
 " country. Here alone, in this land of liberty, in this age 
 * of refinement by a people who, with their usual con- 
 " sistency, have been in the habit of reproaching their 
 *' neighbours with the cruelty of their punishment, is still 
 " inflicted a species of torture, at least as exquisite as any 
 <" that was ever devised by the infernal ingenuity of the ln- 
 " quisition. No, as the Attorney-General justly says, 
 il Buonaparte does not treat his refractory troops in this 
 Ci manner ; there is not a man in his ranks whose back: is 
 l< seamed with the lacerating cat-o'-nine-tails ; his soldiers 
 " have never yet been brought up to view one of their 
 " comrades stripped naked, his limbs tied with ropes to 
 u a triangular machine, his back torn to the bone by the 
 " merciless cutting whipcord, app'ied by persons who re- 
 <c lieve each other at short intervals, that they may bring 
 f* the full unexhausted strength of a man to the work of 
 u scourging. Buonaparte's soldiers have never yet with 
 " tingling ears listened to the piercing screams of a human 
 ** creature so tortured : they have never seen the blood 
 " oozing from his rent flesh ; they have never beheld a 
 li surgeon, with dubious look, pressing the agonized 
 " victim's pulse, and calmly calculating, to an odd blow, 
 u how far suffering may be extended, until in its extremity 
 " it encroach upon life. In short, Buonaparte's soldiers 
 " cannot form any notion of that most heart-rending of 
 " all exhibitions on this side Hell, an English Military 
 u Flogging. 
 
 " Let it not be supposed that we intend these remarks to 
 " excite a vague and indiscriminating sentiment against 
 *' punishment by military law: no; when it is con- 
 " sidered that discipline forms the soul of an army, without 
 " which it would at once degenerate into a mob ; when 
 " the description of persons which compose the body of 
 " what is called an army, and the situations in which it is 
 * l frequently placed, are also taken into account, it will, we
 
 16 
 
 a are afraid, appear but too evident, that the military code 
 u must still be kept distinct from the civil, and distinguished 
 u by greater promptitude and severity. Buonaparte is no 
 tl favourite of ours, God wot but if we come to balance 
 " accounts with him on this particular head, let us see how 
 f matters will stand. He recruits his ranks by force so do 
 u we. Wejlog those whom we have forced he does not. 
 u It may be said he punishes them in some manner ; that 
 " is very true. He imprisons his refractory troops occa- 
 M sionally in chains and, in aggravated cases, he puts them 
 " to death. But any of these severities is preferable to 
 M tying a human creature up like a dog, and cutting his 
 " flesh to pieces with whipcord. Who would not go to 
 u prison for two years, or indeed for almost any term, 
 " rather than bear the exquisite, the almost insupportable 
 " torment, occasioned by the infliction of seven hundred or 
 if a thousand lashes ? Death is mercy compared with such 
 u sufferings. Besides, what is a man good for after he has 
 " the cat-o'-nine-tails across his back ? Can he ever again 
 " hold up his head among his fellows ? One of the poor 
 ' wretches executed at Lincoln last Friday, is stated to 
 " have been severely punished in some regiment. The pro- 
 " bability is, that to this dclious, ignominious flogging, may 
 u be traced his sad end ; and it cannot be doubted that he 
 " found the gallows less cruel than the halberts. Surely, 
 u then, the Attorney-General ought not to stroke his chin 
 " with such complacency, when he refers to the manner in 
 " which Buonaparte treats his soldiers. We despise and 
 u detest those who would tell us that there is as much li- 
 " berty now enjoyed in France as there is left in this 
 " country. We give all credit to the wishes of some of 
 " our great men ; yet while any thing remains to us in the 
 " shape of free discussion, it is impossible that we should 
 " sink into the abject slavery in which the French people 
 *' are plunged. But although we do not envy the general 
 " condition of Buonaparte's subjects, we really (and we
 
 17 
 
 " (and we speak the honest conviction of our hearts) see 
 ** Nothing peculiarly pitiable in the lot of his soldiers when 
 " compared with that of our own. Were we called upon 
 " to make our election between the services, the whipcord 
 " would at once decide us. No advantage whatever can 
 " compensate for, or render tolerable to a mind but one 
 " degree removed from brutality, a liability to be lashed 
 " like a beast. It is idle to talk about rendering the situa- 
 " tion of a British soldier pleasant to himself, or desirable, 
 " far less honourable, in the estimation of others, while the 
 " whip is held over his head and over his head alone, for 
 w in no other country in Europe (with the exception, per- 
 u haps, of Russia, which is yet in a state of barbarity) is 
 " the military character so degraded. We once heard of 
 " an army of slaves, which had bravely withstood the 
 " swords of their masters, being defeated and dispersed by 
 " the bare shaking of the instrument ofjlagellation in their 
 " faces. This brought so forcibly to their minds their 
 t( former state of servitude and disgrace, that every ho- 
 " nourable impulse at once forsook their bosoms, and they 
 " betook themselves to flight and to howling. We i enter- 
 " tain no anxiety about the character of our countrymen 
 " in Portugal, when we contemplate their meeting the 
 " bayonets of Massena's troops, but we must own that we 
 *' should tremble for the result, were the French General to 
 H dispatch against them a few hundred drummers, each 
 " brandishing a cat-o'-nine-tails." 
 
 Mr. Attorney General. There is an allegation that the 
 7th Royal \ Veteran Battalion is a battalion in the Army of 
 our Lord the King. I can call any one to prove it. 
 
 Mr. Alexander Mack ay examined by Mr. 
 Richardson. 
 
 I believe you are a clerk in the War-Office ? 
 I am. - u kusck jl uu w ;-. '
 
 18 
 
 Is the 7th Royal Veteran Battalion part of the Array of 
 our Lord the King ? 
 
 I consider it to be so. 
 
 Is it so treated and regarded in the service ? 
 
 It is 
 
 Mr. Attorney General. You consider it to be so, just as 
 we now consider you to be standing in the box ? 
 
 Yes 
 
 Is the 4th regiment of foot part of the Array ? 
 
 It is. 
 
 Mr. Henry Longland examined by Mr. Attorney 
 
 G' 
 ENERAL. 
 
 - 
 
 The Bearstead and Mailing regiments of Local Militia, 
 are they part of the Army ? 
 
 They are. 
 
 You are Deputy- Adjutant-General for the Local Militia ? 
 
 I am. 
 
 Mr. Brougham. I submit that the Attorney-General 
 has not proved the first count by the evidence he has pro- 
 duced. The first count states that they did compose, print, 
 and publish. 
 
 Lord Etlenborough. He need not prove all proof of 
 composing is not necessary. It runs through all indict- 
 ments, where you charge that the party did, or caused the 
 tiling to be done, if you prove either, it is enough. 
 
 Mr* Brougham. This is different : the first count says, 
 they composed, printed, and published ; which must be 
 taken to mean that they composed) and then printed and 
 published their composition. 
 
 Mr. Attorney General. In the King v. Vere it was held 
 to be sufficient to prove either. 
 
 Lord Ellenborough.W is not a variance.
 
 19 
 
 Mr. Brougham. 
 
 May it please your Lordship, Gentlemen of the Jury : 
 
 In rising to support the cause of these Defendants, 
 I feel abundantly sensible of the difficulties under which 
 they labour. It is not that they have to contend, with 
 such unequal force on my part, against the talents, and 
 learning, and the high influence of the office of the Attor- 
 ney General ; nor is it merely that they stand in the situation 
 of Defendants prosecuted by the Crown, for in ordinary 
 cases they would have the common presumption of inno- 
 cence to operate in their favour : but the hardship of their 
 case originates in the nature of the charge on which they 
 are brought before you a charge of libel, at a time when 
 the licentiousness of the press has reached to a height which 
 it certainly never attained in any other country, nor even 
 in this at any former period. That licentiousness, indeed, 
 has of laje years appeared to despise all the bounds which 
 had once been prescribed to the attacks on private cha- 
 racter, insomuch that there is not only no personage so 
 important or exalted for of that I do not complain but, 
 no person so humble, harmless, and retired, as to escape the 
 defamation which is daily and hourly poured forth by the 
 venal crew, to gratify the idle curiosity, or still less ex- 
 cusable malignity, of the public : to mark out, for the 
 indulgence of that propensity, individuals retiring into the 
 privacy of domestic life to hunt them down, and drag 
 them forth as a laughing-stock to the vulgar, has become 
 in our days, with some men, the road even to popularity ; 
 but with multitudes, the means of earning a base sub- 
 sistence. Gentlemen, the nature and the causes of this evil 
 it is unnecessary for me to point out. Indeed, I am far 
 from saying that there is nothing to extenuate it ; I am 
 ready even to admit that this abuse of the press in defaming 
 private characters, does derive no small apology from the 
 insatiable love of publicity which preys upon a great part 
 of the community ; and leads them scarcely to value exist-
 
 20 
 
 ence itself, unless it is passed in the eyes of the world ; and 
 to care but little what they do, so they be only stared at, 
 or talked of. It furnishes somewhat of excuse too, that 
 the public itself is insatiable in its thirst for slander ; 
 swallows it with indiscriminate avidity ; and, liberal at least 
 in its patronage of this species of merit, largely rewards 
 those whom it sends forth to pander for those depraved ap- 
 petites. But, in whatever way arising, or however pal- 
 liated, the fact of the abase of the press is certain, and the 
 consequences are fatal to the press itself; for, the licentious- 
 ness of which I complain has been the means of alienating 
 the minds of those who had ever stood forward as its fastest 
 friends and its firmest defenders ; it has led them to doubt 
 the uses of that which they have seen so perverted and 
 abused. It has made them, instead of blessing " the useful 
 " light" of that great source of improvement, see in it 
 only an instrument of real mischief, or doubtful good : 
 and when they find, that instead of being kept pure, for'the 
 instruction of the world instead of being confirmed to ques- 
 tioning the conduct of men in high situations, canvassing 
 public measures, and discussing great general questions of 
 policy ; when they find that, instead of such, its legitimate 
 objects, this inestimable blessing has been made subservient 
 to the purposes of secret malice, perverted to the torture of 
 private feelings, and the ruin of individual reputation those 
 men have at last come to view it, if not with hostility, at 
 least with doubtful friendship, and relaxed zeal for its privi- 
 leges. It is no small aggravation of this prejudice that the 
 Defendants came into Court to answer this charge after other 
 libels of a more general description have been published and 
 prosecuted ; after those, to which the Attorney General has 
 so forcibly alluded in the opening of this case, had so 
 lately been brought before the Court, and the authors and 
 circulators convicted. At first sight, and upon merely 
 stating the subject of this publication, it is but natural for 
 you to imagine that there is some similarity between other 
 cases and the present one ; and that a publication on the
 
 21 
 
 general subject of military punishment, (which is the only 
 point of resemblance) belongs to the same class of libels 
 with those so anxiously alluded to by my learned friend, 
 with those particularly for which Mr. Cobbett, and pro- 
 bably some others, are suffering the sentence of the law. 
 The Attorney General did not put these circumstances in 
 the back ground ; he was anxious to draw a parallel be- 
 tween this case, and the case of Mr. Cobbett : it will be 
 unnecessary for me to follow this comparison ; all I shall 
 say in the outset is, that I confidently predict, I shall not 
 proceed far before I shall have convinced you, gentlemen, 
 that light is not more different from darkness than the pub- 
 lication set forth in this record is different from all, and 
 each, of the former publications brought before the Court 
 by the Attorney General for conviction, and now again 
 brought forward for argument. The consequence of all 
 these prepossessions, in whatever way arising, is, I will not 
 say fatal, but extremely hurtful to these Defendants. It 
 places them in a torrent of prejudice, in which they would 
 in vain have attempted, and I should not have counselled 
 them to stand, had they not rested on the firm footing of 
 the merits of their individual case, and the confidence that 
 his Lordship and you will cheerfully stretch forth an help- 
 ing arm in the only way in which you can help them ; m 
 the only way in which they ask your aid ; that you will 
 do strict justice between the Crown and them, by entering 
 into an examination of their single individual case. Gen- 
 tlemen, you have to try whether the particular publication, 
 set forth in this Record, has manifestly, upon the bare ap- 
 pearance of it, been composed and published with the evil 
 intention and with the purpose and hurtful tendency al- 
 ledged in the Information. If their intention has appa- 
 rently been good ; or, whether laudable or not, if it has 
 been innocent, and not blameworthy ; then, whatever you 
 may think of the opinions contained in the work even 
 though you may think them utterly false and unfounded 
 in whatever light you may view it critically as a piece of
 
 22 
 
 composition though you may consider the language as 
 much too weak or as far too strong for the occasion still if 
 you are convinced there is nothing blameable in the inten- 
 tion which appears to have actuated the author and pub- 
 lisher (for I will take the question on the footing that the 
 author himself is before you though the evidence, on the 
 face of it, bears me out in distinctly asserting that these 
 Defendants did not write this article, but copied it from 
 another work which they particularly specify) yet, in 
 order to argue the question more freely, I will suppose it is 
 the case of the original composer, which you are now to 
 try, (and I am sure my learned friend cannot desire me to 
 meet him on higher or fairer ground) I say then, that 
 
 IF YOU AUE NOT CONVINCED IF UPON READING THE 
 COMPOSITION ATTENTIVELY YOU ARE NOT, EVERY ONE 
 OF YOU, FULLY AND THOROUGHLY CONVINCED, THAT 
 
 the author had a blameable, a most guilty intention 
 
 IN WRITING IT, AND THAT HE WROTE IT FOR A WICKED 
 PURPOSE, YOU MUST ACQUIT THOSE DEFENDANTS WHO 
 
 re-published it. This, Gentlemen, is the particular 
 question you have to try ; but I will not disguise from you, 
 that you are now trying a more general and important ques- 
 tion than this. You are now to determine, whether an 
 Englishman still enjoys the privilege of freely discussing 
 public measures whether an Englishman still possesses the 
 privilege of impeaching, (for if he has a right to discuss, 
 he has a right to espouse whichever side his sentiments lead 
 him to adopt, and may speak or write against, as well as 
 for) whether he has still a right to impeach, not one indi- 
 vidual character, not one or two public men, not a single 
 error in policy, not any particular abuse of an established 
 system ? I do not deny that he has the right to do all this, 
 and more than this ; but it is not necessary for me now to 
 maintain it But the question for you to try is Whether an 
 Englishman shall any longer have the power of making 
 comments on a system of policy, of discussing a general, I 
 had almost said an abstract political proposition of com-
 
 23 
 
 rnunicating to his countrymen his opinion upon the merits, 
 not of a particular measure, or even a line of conduct pur- 
 sued by this or that administration, (though no man ever 
 dreamt of denying him this also,) but of a general system 
 of policy, which it has pleased the government to adopt at 
 all times : Whether a person, devoted to the interests of 
 his country, warm in his attachment to its cause, vehe- 
 mently impelled by a love of its happiness and glory, has a 
 right to endeavour by his own individual exertions to make 
 that perfect which he so greatly admires, by pointing out 
 those little defects in its constitution, which are the only spots 
 whereupon his partial eyes can rest for blame: Whether 
 an Englishman, anxious for the honour and renown of the 
 Army, and deeply feeling how much the safety of his coun- 
 try depends on the perfection of its military system, has a 
 right to endeavour to promote the good of the service, by 
 shewing wherein the present system is detrimental to it ; by 
 marking out for correction those imperfections which bear, 
 indeed, no proportion to the general excellence of the esta- 
 blishment, those flaws which he is convinced alone prevent 
 it from attaining absolute perfection : Whether a person, 
 anxious for the welfare of the individual soldier, intimately 
 persuaded that on the feelings and the honour of the soldier 
 depend the honour and glory of our arms ; sensible that 
 upon those feelings and that honour hinges the safety of the 
 country at all times, but never so closely as at present 
 whether, imbued with such sentiments, and urged by these 
 motives, a man has not a right to make his opinions as 
 public as is] necessary to give them effect: Whether he may 
 not innocently, nay laudably, seek to make converts to his 
 own views, by giving them publicity, and endeavour to 
 realize his wishes for the good of the state, and the honour 
 of its arms, by proving, in the face of his fellow-citizens, the 
 truth of the doctrines to which he is conscientiously at- 
 tached. These, Gentlemen, are the questions put to you by
 
 24 
 
 this Record ; and your verdict, when it sbali^be entered upon 
 it, will decide such questions as these. 
 
 Gentlemen, it is, I am persuaded, known to all of you, 
 that for many years past, the anxious attention of the Go- 
 vernment of this country has been directed (at times, indeed, 
 to the exclusion of all other considerations) to the improve- 
 ment of our Military Establishment. It would be endless, 
 and it would be unnecessary, for me to enter into the 
 various projects for its improvement, which from time 
 to time have been entertained by our rulers, and 
 adopted or rejected by the legislature : it is enough 
 that I should state, in one short sentence, that all those 
 
 plans have had common objects to protect and 
 
 benefit the private soldier, to encourage the recruiting 
 of the Army, and to improve the character of those who 
 compose it, by bettering the condition of the soldier him- 
 self'. In the prosecution of these grand leading objects, va- 
 rious plans have been suggested by different statesmen of 
 great name; plans which I need not particularize, but to 
 some of which, in so far as they relate to the present Infor- 
 mation, it is necessary that I should direct your attention. 
 One of the chief means suggested for improving the condi- 
 tion of the soldier, is shortening the duration of his service ; 
 and upon that important subject it is unnecessary for me to 
 use words of my own, when I have, in a publication which 
 is before the world, and I dare say has been before you, (at 
 least you cannot be unacquainted with the name and the 
 fame of the author,) that which better expresses my senti- 
 ments than any language I could use myself. The argu- 
 ments are so forcibly stated, and the subject is altogether 
 placed in so luminous a point of view, that it is better for 
 me to give them in the words of the respectable writer, the 
 gallant officer I have alluded to. It is Sir Robert Wilson,* 
 
 * This distinguished officer sat on the bench, near his Lord- 
 ship, during the whole of the trial.
 
 25 
 
 Gentlemen, whose presence here as a "witness, should it be 
 necessary to call him, prevents me from saying, so strongly 
 as I could wish, what in common with every one I do 
 most sincerely feel that there is not, among all the brave 
 men of whom the corps of officers in the British Army is 
 composed, one to whom the country, considering his rank 
 and the time of his service, is more indebted one who 
 has more distinguished himself by his enthusiastic, I had 
 almost said romantic, love of the service one who has 
 shewn himself a more determined, I may really say personal 
 enemy of the Ruler of France, or a faster friend to the cause 
 and the person of his own Sovereign, and of his royal allies.* 
 This gallant officer, in the year 1794, published a Tract 
 " On the means of improving and re-organizing the Mili- 
 " tary Force of this Empire." It was addressed to Mr. 
 Pitt, then minister of the country, and whose attention, as 
 well as that of the author, was at that time directed to 
 whatever was likely to improve our military system to en- 
 courage the obedience, and exalt the character of the sol- 
 dier already in the Army, and to promote the recruiting of 
 it from among those who had not yet entered into the ser- 
 vice. He mentions a great variety of circumstances which 
 deter men from enlisting, and render those who do enter of 
 less value to the profession. Among others, he mentions the 
 term the duration of their service. He says, in language 
 powerful indeed, and strong, but any thing rather than 
 libellous : " It is strange that in a free country, a cus- 
 " torn so repugnant to freedom, as enlisting for life, and 
 u to the particular character of the British Constitution, 
 " should ever have been introduced; but more singular. 
 
 * Sir Robert Wilson is Aid-de-camp to the King : he obtain- 
 ed the Order of Maria Theresa for saving the Emperor's life in 
 1792 ; and his book against Buonaparte is well known. 
 
 E
 
 u tliat the practice should hare been continued after every 
 si other nation in Europe had abandoned it as impolitic, and 
 " as too severe an imposition upon the subject J 'ml If in 
 " those countries (he proceeds) where the inferior orders of 
 tl society are born in vassalage, and where the will of the 
 " sovereign is immediate law, this power has been relin-r 
 " quished, in order to incline men voluntarily to enlist, 
 " surely there is strong presumptive evidence that the ge- 
 a neral interests of the service are improved, instead of 
 " being injured by this more liberal consideration." IJe 
 then goes on to illustrate the same topic in terras still more 
 expressive of the warmth of his feelings upon so interesting 
 a question : il The independence of an Englishman" says 
 be, " naturally recoils at the prospect of bondage, which 
 i( gradually produces discontent against the bent even of 
 cc inclination." " How many men," he adds, in still 
 more glowing expressions but which I am far from blaming 
 for I should have held him cheap indeed, if, instead of 
 giving vent to his sentiments in this free and appropriate 
 manner, he had oflered them as coldly and dryly as if he 
 
 were drawing out a regimental return " How many 
 
 " men are there, who have now not the faintest wish to 
 " leave their own estates, even for a journey into another 
 " county, but who, if restrained by any edict from quit- 
 " ting England, would find this island too narrow to con- 
 (t tain them, would draw their breath convulsively as if they 
 il craved free air, and feel all the mental anguish of a prv> 
 11 soner in a dungeon? What is the inference to be now 
 " fairly drawn from the perseverance in the system of en- 
 " listing for life ? Js it not that the British service is so ob- 
 " noxious and little conciliating, that, if the permission 
 " to retire were accorded, the ranks would be altogether 
 (i abandoned, and the skeleton only remain, as an eternal 
 <c and mournful monument of the wretchedjicss of a soldier s 
 u condition ? Is it not a declaration to the world, that the 
 li service is so ungrateful to the feelings of the soldiery,
 
 27 
 
 * x that zbkert once the unfortunate victim is entrapped, it is 
 if necessary to secure his allegiance by a perpetual state of 
 <( confineme?it *V-He then advances in the course of his 
 inquiry to another topic ; and in language as strong as 
 expressive of his honest feelings and therefore as appro- 
 priate and praise-worthy he talks of the service in the 
 West- India Islands, and even goes so far as to wish those 
 colonies were abandoned. I am not disposed to follow him 
 in this opinion-*-! cannot go so far : But God forbid I 
 should blame hrm for holding it or that, for making this 
 opinion public, I should accuse him of having written a 
 libel on that Service, of which he is at once the distinguished 
 ornament and zealous friend. It might bear perhaps an 
 insinuation that such a topic was inflammatory that it had 
 a tendency to excite discontent among the soldiers and to 
 deter men from entering into the service. But far from im- 
 puting that to the gallant officer, I respect him the more 
 for publishing a bold and downright opinion for express- 
 ing his feelings strongly it is the best proof he felt keenly. 
 He proposes no less than that the West-India Islands should 
 be given up, in order to improve our means of defence at 
 home. He says, " It is, however, to be hoped, that the 
 " tlay is not remote, when our Colonies shall cease to be 
 "such a claim upon the active population of this country: 
 fe that charnel-house must be closed for ever against the 
 " British troops. The soldier who dies in the field is 
 " wrapped in the mantle of honour, and the pall of glory 
 * c is extended over his relatives ; but in a warfare against 
 '* climate, the energy of the man is destroyed before life 
 if is extinguished ; he wastes into an inglorious grave, and 
 " the calamitous termination of Ills' existence offers nocheer- 
 " ing recollection to relieve the affliction of his loss." Did 
 Sir Robert Wilson mean to excite the brave and ill-fated re- 
 giments to mutiny and revolt who were already enclosed in 
 those charnel-houses ? or did he mean to deter persons 
 from enlisting in those regiments, who might otherwise
 
 28 
 
 have been inclined to join them ? Did lie mean to address 
 an}' of the regiments under actual orders for the West- 
 India service, and to excite revolt among them by telling 
 every one who read the passage I have cited, that 
 which it so forcibly puts to all soldiers under such orders 
 rt Whither are you going ? You are rushing into a char- 
 " nel-house !" Far be it from me to impute such motives 
 it is impossible! The words I have read are uttered in 
 the discussion of a general question ; a question on which 
 he speaks warmly, because he feels strongly. And pursuing 
 the same course of reasoning in the same expressive style, 
 he comes to another and an important part, both of his 
 argument and of the question in which we are now engaged. 
 In considering the nature of the tenure by which a soldier 
 wears his sword ; in considering that honour is to him 
 what our all is to every body else he views several parts 
 of our military system as clashing in some sort with the 
 respect due to a soldier's character and, fired with a subject 
 so near his heart, he at once enters into the question of 
 military punishments paints in language not at all weaker 
 nor less eloquent than that of the publication before you, 
 in language that does him the highest honour, the ceils that 
 result from the system ofjlogging, as practised in our Army. 
 He says, " The second, and equally strong check to the 
 " recruiting of the Army, is the frequency of corporal pu- 
 u nishment." Proceeding to enlarge on this most interest- 
 ing point, in the course of his observations he uses such ex- 
 pressions as these : After judiciously telling us, that " it 
 " is in vain to expect a radical reform, until the principle 
 u of the practice is combated by argument, and all its evil 
 11 consequences exposed by reasoning," he adds this asser- 
 tion, for which every one must give him credit : " Be this 
 " however as it may, I feel convinced that I have no ob- 
 " ject but the good of the service." He says, that " Sir 
 " Ralph Abercrombie was also an enemy to corporal pu- 
 f* nishments for light offences : his noble and worthy sue-
 
 29 
 
 " ccssor, whose judgment must Lave great influence; Lord 
 " Moira, General Simcoe and almost every General Of- 
 " ficer in the Army, express the same aversion continually ; 
 " but they have no power of interference." -Qi that in- 
 terference then he thinks there is no prospect, unless by 
 reason and argument, and by freely discussing the opinions 
 of the country and the legislature a proposition to which 
 all of us must readily assent. And he thus pursues : w I 
 .*' feel convinced that I have no object but the good of the 
 " service, and, consequently, to promote the Commander in 
 t Chief's views, and that my feelings are solely influenced 
 " by love of humanity, a grateful sense of duty to brave 
 " men, and not by a false ambition of acquiring popu- 
 " larity" A motive which I am sure no one will impute 
 to him. " If (he adds) I did not think the subject of the 
 *' most essential importance, no motive should induce me 
 " to bring it forward, if I was not aware that, however 
 " .eager the Commander-in-Chief was to interpose his au- 
 " thority, the correction of the abuse does not altogether 
 " depend upon his veto, and cannot, with due regard to the 
 li peculiar circumstances of his situation, be required to 
 ," emanate abruptly from him. My appeal is made to the 
 u Officers of the Army and Militia, for there must be no 
 * s marked discrimination between these two services, notwith- 
 " standing there may be great difference in their different 
 " modes of treating the soldiery. I shall sedulously avoid 
 " all personal allusions the object in view is of greater 
 " magnitude than the accusation of individual malefactors / 
 " I shall not enter into particulars of that excess of punish- 
 " ment, which has in many instances been attended with the 
 " most fatal consequences. I will not, by quoting 
 
 " EXAMPLES, REPRESENT A PICTURE IN TOO FRIGHTFUL 
 " A COLOURING FOR PATIENT EXAMINATION." He then 
 
 says, " The present age is a remarkable epoch in the his- 
 " tory of the world ; civilization is daily making the 
 " most rapid progress, and humanity is triumphing hourly
 
 so 
 
 * over the last enemies of mankind : but whilst the Afri- 
 " can excites the compassion of the nation, arid engages 
 '' the attention of the British Legislature, the British sol* 
 " dier, their fellow countryman, the gallant faithful pro- 
 " tector of their liberties, and champion of their honour, 
 if is dotty exposed to suffer under the abuse of that power 
 il with which ignorance or a bad disposition may be armed." 
 *-" There is no mode of punishment so disgraceful at 
 " flogging, and none more inconsistent with the military 
 " character, which should be esteemed as the essence of 
 11 honour and the pride of manhood : but when what should 
 " be used but in very extreme cases, as the ultimum suppli- 
 " cium y producing the moral death of the criminal, be- 
 '* comes the common penalty for offences in which there 
 " is no moral turpitude, or but a petty violation of martial 
 u law, the evil requires serious attention.*' Here he ap- 
 peals with a proud and exulting recollection to the practice 
 of the regiment in which he had begun his military life. 
 " Educated," says he, " in the 15th Light Dragoons, 
 " I was early instructed to respect the Soldier : that was a 
 " corps before which the triangles were never planted/* 
 meaning the triangles against which men are tied up when 
 they receive the punishment of flogging. u There," he 
 adds, in the same language of glowing satisfaction, con- 
 trasting the character of his favourite corps with that de- 
 basement which the system of flogging else where engenders 
 " There" he exclaims, u each man felt an individual 
 " spirit of independence ; walked erect, as if conscious of 
 li his value as a man and a soldier where affection for 
 " his officer, and pride in his corps, were so blended, that 
 " duty became a satisfactory employment, and to acquire 
 li for each new distinction, the chief object of their wishes. 
 " With such men every enterprize was to be attempted, 
 '.' which could be executed by courage and devotion, and 
 ? there was a satisfaction in commanding them which could 
 :i never have been derived from a system of severity." He
 
 ' 31 
 
 proceeds, " There is no maxim more true than that cruelty 
 is generated in cowardice, and that humanity is insepa- 
 ' rable from courage. The ingenuity of officers should be 
 " exercised to devise a mode of mitigating the punishment, 
 " and yet maintaining discipline. If the heart be well dis- 
 " posed, a thousand different methods of treating offences 
 " will suggest themselves ; but to prescribe positive penal- 
 " ties for breaches of duty is impossible, since no two cases 
 " are ever exactly alike. Unfortunately, many officers 
 ~* ( will not give themselves the trouble to consider how they 
 " can be merciful ; and if a return was published of all 
 " regimental punishments within the last two years, the 
 " number would be as much a subject of astonishment as 
 a re gret. I knew a Colonel of Irish Militia, happily now 
 " dead, who flogged in one day seventy of his men, and I 
 " believe punished several more the next morning ; but, 
 " notwithstanding this extensive correction, the regiment 
 " was by no means improved. Corporal punishments 
 " never yet reformed a corps; but they have totally 
 
 ** RUINED MANY A MAN WHO WOULD HAVE PROVED 
 " UNDER MILDER TREATMENT A MERITORIOUS SOLDIER. 
 
 " They break the spirit without amending the disposition ; 
 ** whilst the lask strips the back, despair writhes round the 
 " heart, and the miserable culprit, viewing himself as fallen 
 f< below the rank of his fellow species, can no longer attempt 
 ic the recovery of his station in society. Can the brave 
 " man, and he endowed with any generosity of feeling, 
 " forget the mortifying vile condition in which he was ex- 
 '* posed? Does not therefore the cat-o'-nine-tails defeat 
 M the chief object of punishment, and is not a mode of pu- 
 11 nishment too severe, which for ever degrades and renders 
 " abject? Instead of upholding the character of the sol- 
 " dicr, as entitled to the respect of the community, this 
 " system renders him despicable in his own eyes, and the 
 " object of opprobrium in the state, or of mortifying 
 " commiseration." He is now about to touch upon a
 
 32 
 
 topic which I admit to be of some delicacy. It is one of 
 the topics introduced into the composition before you : but 
 a man of principle and courage, who feels that he lias a 
 grave duty to perform, will not shrink from it, even if it be 
 of a delicate nature, through the fear of having motives 
 imputed to him by which he was never actuated, or lest 
 some foolish persons may accuse him of acting with views 
 which never swayed him. Accordingly Sir Robert Wilson 
 is not deterred from the performance of his duty by such 
 childish apprehensious ; and, having gone through ail his 
 remarks, of which I have read only a small part, and having 
 cloquentty, feelingly, and most forcibly summed it up in 
 the passage I have just quoted, he says: M It is a melancholy 
 4< truth, that punishments have considerable augmented 
 " that ignorant and fatal notions of discipline have been 
 u introduced into the service, subduing all tbe amiable 
 " emotions of human nature. Gentlemen who justly boast 
 " the most liberal education in the world, have familia- 
 " rized themselves to a degree of punishment which charac- 
 " iei'ises no other nation in euuope." "England," (he 
 adds, pursuing the same comparative argument on which 
 so much had this day been said) " England should not 
 " be the last nation to adopt humane improvements ;" and 
 then, coming to the very point of comparison which has 
 been felt by the Attorney General as the most offensive, 
 Sir R. Wilson says : " France allows of flogging 
 " only in her Marink, for men confined together on 
 " board ship require a peculiar discipline, and the punish- 
 " merit is very different from military severity. The Ger- 
 " mans make great criminals run the gauntlet ;" thus il- 
 lustrating the principle that in no country, sate and ex- 
 cept England alone, to use the words of those De- 
 fendants) is this mode of punishment by flogging a- 
 dopted. 
 
 Gentlemen, it is not from the writings of this gallant 
 officer alone that I can .produce similar passages, though,
 
 33 
 
 perhaps, in none could I find language so admirable and so 
 strong as his. I shall trouble you, however, with no mors 
 references, excepting to an able publication of another of- 
 ficer, who is an ornament to his profession, and whose 
 name, I dare to say, is well known amongst you, I mean 
 Brigadier-General Stewart, of the 95th regiment ; the bro- 
 ther of my Lord Galloway. This work was written while 
 the plans, which f have already mentioned, were in agitation 
 for the improvement of the Army; and the object of it is 
 the same with that of Sir R. Wilson to shew the defects 
 of the present system, and to point out the proper remedies. 
 u Without (he begins) a radical change in our present 
 " military system, Britain will certainly not long con- 
 " tinue to be either formidable abroad, or secure at home." 
 This radical change in our system is merely that which 
 t have already detailed. He says, after laying down 
 some general remarks, " If this view of the subject be cor- 
 " rect, how will the several parts of our present military 
 li system be reconciled to common sense, or to any insight 
 tl into men and things? 1 " He then mentions the chief 
 defects in the system, such as perpetuity of service, and the 
 frequency of corporal punishments ; and in discussing the 
 latter subject, he says, " No circumstance can mark a want 
 " of just discrimination more than the very general recur- 
 " rence, in any stage of society, to that description of pu- 
 " nishment which, among the same class of men, and with 
 " the alteration of the profession alone, bears a stamp of 
 ** infamy in the estimate of every man. The frequent in* 
 " faction of corporal punishment in our armies tends 
 " strongly to debase the minds and destroy the high spirit 
 " of the soldiery. It renders a system of increasing rigour 
 u necessary ; it deprives discipline of honour, and de- 
 " stroys the subordination of the heart, which can alone 
 '* add voluntary zeal to the cold obligations of duty. 
 " Soldiers of naturally correct minds, having been once 
 " punished corporally, generally become negligent and 
 
 F
 
 34 
 
 * { unworthy of any confidence. Discipline requires the inter- 
 " vention of strong acts to maintain it, and to impress it 
 " on vulgar minds : punishment may be formidable, but 
 " must not be familiar : generosity or solemn severity must 
 <( at times be equally recurred to: pardon or death have 
 44 been resorted to with equal success ; but the perpetual re- 
 if currence to the infliction of infamy on a soldier by the 
 " 'punishment of flogging, is one of the most mistaken modes 
 ei for enforcing discipline which can be conceived" And 
 then, alluding to the same delicate topic of comparison, 
 which, somehow or other, it does appear no man can write 
 on this subject without introducing, I mean the compa- 
 rative state of the Enemy's discipline, and our own, he 
 says : " In the French army a soldier is often shofj 
 li but he rarely receives corporal punishment ; and in no 
 <* other service is discipline preserved on truer principles." 
 Gentlemen, I like not the custom, which is too prevalent 
 with some men, of being over-prone to praise the Enemy 
 of having no eyes for the merits and advantages of their own 
 country, and only feeling gratified when they can find food 
 for censure at home; while abroad all is praise- worthy and 
 perfect. I love not this propensity to make such a com- 
 parison; however, it is sometimes absolutely necessary, 
 though it may always be liable to abuse : but in an officer 
 like General Stewart or Sir Robert Wilson, it has the merit 
 not only of being applicable to the argument, but in those 
 men who have fought against that Enemy, and who in 
 spite of his superior system have beaten him (as beat him we 
 always do when we meet him on any thing like fair terms), 
 in such men it has the grace of liberality as well as the 
 value of truth and it not only adds a powerful reason to 
 their own, but shews them to be above little paltry feuds ; 
 shews them combating with a manly hostility, and proves 
 that the way in which they choose to fight an enemy, is like 
 soldiers in the field, and not by effeminately railing at him. 
 Jn the French army. General Stewart says, a soldier is often 
 fchot, but lie rarely receives corporal punishment and " in
 
 35 
 
 9i no other service is discipline preserved on truer principles" 
 He says, *' I know the service I have had occasion to 
 see it in practice I have served with Austrians, Prus- 
 sians, and Swedes but in no service is discipline preserved 
 on truer principles than in the French ; and therefore it is 
 that I quote the example of the French, whose discipline 
 is preserved on principles too true, alas, for our ill-fated 
 allies. It is therefore I quote the French army, and in 
 order to shew that the change I recommend in our own, 
 is necessary for the perfection of its discipline, and to save 
 lis from the fate of those allies." Such are the opinions of 
 these gallant officers but whether they are right or wrong 
 I care not Such are the opinions of other brave and ex- 
 perienced officers, expressed in language similar to that 
 which you have heard ; in such terms as they deemed 
 proper for supporting the opinions they held. Do I mean 
 to argue, because these officers have published what is unfit 
 and improper, that therefore the Defendants have a right to 
 do the same ? Am 1 foolish enough? Do I know so little 
 of the respect due to your understandings? Am I so little 
 aware of the interruption I should instantly and justly 
 meet from the learned and noble Judge, who presides at this 
 trial, were I to attempt urging such a topic as this? Do 
 I really dare to advance what would amount to no less than 
 the absurd, the insane proposition, that if one man publishes 
 a libel, another man may do so too ? On the contrarj r , 
 my whole argument is at an end, if these are libels. If 
 General Stewart and Sir Robert Wilson have exceeded the 
 bounds of propriety, and those passages which I have read 
 from their works, are libels, the publication by them would 
 form not only no excuse for the Defendants, but would be 
 an aggravation of their fault, if I, their counsel, had ventur- 
 ed, in defending one libel, to bring other libels before you. 
 But it is because I hold, and you must too, that these officers 
 are incapable of a libellous intention because you well 
 know that these officers, when they wrote in such terms,
 
 36 
 
 were incapable of the design of lowing distention among' 
 the troops, and deterring men from entering into the Army 
 it is because you know that, of all the men in this Court, 
 and in this country, there are no two persons who are more 
 enthusiastically attached to this country it vs because you 
 know, as well asl do, that no two men in England are more 
 entirely devoted to the interests of the British Army, or bear 
 a deadlier hate to all its enemies it is because you must feel 
 that there is not an atom of pretext for charging them with 
 such wicked intention, or for accusing them of a libellous 
 publication it is for this reason, and for this alone, that 
 I have laid before you what they have thought and writ- 
 ten upon the subject matter of the composition which 
 you are now trying. I entertain no small confidence 
 that you are prepared to go along with me, in my con- 
 clusion, that, if they could publish such things, without 
 the possibility of any man accusing them of libel, the 
 mere fact of these things being published is no evidence 
 of a wicked or seditious intention : that you are there- 
 tore prepared to view the publication on its own merits ; 
 ancjl, considering how others, who could not by possibi- 
 lity be accused of improper motives, have treated the same 
 subject, you will feel it your duty to acquit the De- 
 fendants of evil , intention, if they shall appear to have 
 handled it in a similar manner. 
 
 Gentlemen, I entreat you now to look a little towards the 
 composition itself on which Che Attorney General has com- 
 mented so amply. With respect to the motto, which is 
 taken from an eloquent address of his to a jury upon a 
 former occasion, there is nothing in that, which makes 
 it necessary for me to detain you. hi whatever way these 
 words may have originally been spoken, and however the 
 context may have qualified them, even if they bore originally 
 a meaning quite different from that which in their insulated 
 state they now appear to have, I apprehend, that a person 
 assuming, as is the fashion of the day, a quotation from
 
 37 
 
 the words of another as a text, may fairly take the passage 
 in whatever sense suits his own purpose. Such at least has 
 been the practice, certainly, from the time of the Spectator, 
 I believe much earlier ; nor can the compliance with this 
 custom prove any intention good or bad A writer takes 
 the words which he finds best adapted to serve for a text, 
 and makes them his motto : some take a line, and even twist 
 it to another meaning, a sense quite opposite to its original 
 signification ; it is the most common device, a mere matter 
 of taste and ornament, and is every day practised. Let us 
 now come to the introduction, which follows the text or 
 motto. The writer, meaning to discuss the subject of military- 
 punishments, and wishing to offer his observations on the 
 system of punishment adopted in our Army, in order to lay 
 a ground- work for his argument, and in case any reader 
 should say, 'You have no facts to produce, this is all mere 
 declamation,' for the purpose of securing such a ground- 
 work of fact as should anticipate tlfis objection, and shew 
 that these military punishments were actually inflicted in 
 various instances, and in order to prove from those instances 
 the necessity of entering into the inquiry, he states fairly 
 and candidly several cases of the punishments which he is 
 going to comment upon. He says, " Corporal Curtis was 
 " sentenced to receive one thousand lashes, but, after 
 " receiving two hundred, was on his own petition permitted 
 " to volunteer into a regiment on foreign service.*' Enough 
 would it have been for the argument to have said, that 
 Corporal Curtis had been sentenced to receive one thousand 
 lashes ; be owns candidly that on receiving two hundred, 
 he was allowed, and at his own request, to enter into a 
 regiment on foreign service. Then he mentions the case of 
 William Clifford, a private in the seventh Royal Veteran 
 battalion, who was lately sentenced to receive one thousand 
 lashes: does he stop there ? No, he adds the reason ; and 
 fhe reason turns out to be one which, if any thing can' 
 
 
 K%
 
 38 
 
 justify such a punishment, you will admit would be 3 
 justification. He adds candidly, what makes against bb 
 own argument, he says it was "for repeatedly striking and 
 " kicking his superior officer." He adds, that he underwent 
 part of liis sentence, by receiving seven hundred and fifty 
 lashes at Canterbury, in presence of the whole garrison. 
 He next mentions another instance of some persons of the 
 4th regiment of foot, being sentenced to receive two thousand 
 six hundred lashes and, giving the reason, he says it was 
 " for disrespectful behaviour to their officers." He then 
 states the case of Robert Chilman, a private in the Bear- 
 stead and Mailing regiment of Local Militia, who was lately 
 tried, this author tells us, by a court-martial i; for dis- 
 " obedience of orders and mutinous and improper behaviour 
 iC while the regiment was embodied." His offence he thus 
 sets forth almost as fully as if he was drawing up the charge 
 nay, I will venture to say the charge upon which the 
 court-martial proceeded to trial, was not drawn up more 
 strongly and distinctly ; he subjoins to these facts, that his 
 authorities are, the London Newspapers. 
 
 Having thus laid the foundation and ground-work of 
 his reasoning, he comments upon the subject in words 
 which, as they have been read twice over, once by the 
 Attorney General and once by Mr. Lowtcn, it will be 
 unnecessary for me to repeat at any considerable length ; 
 I would only beg of you to observe, that, in the course of 
 his argument, he has by no means departed from the rule 
 of fairness and candour which he had laid down for himself 
 in the outset. He brings forward that which makes against* 
 him, as well as that which makes for him, and he qualifies 
 and guards his propositions in a way strougly indicative of 
 the candour and fairness of his motives. After having 
 stated his opinion in warm language, in language such as 
 the subject was calculated to call forth after having poured 
 oat his strong feelings in a vehement manner (and surely
 
 39 
 
 you will not say that a man shall feel strongly, and not 
 strongly express himself shall he be blamed for expressing 
 himself as these two gallant officers have done, though per- 
 haps in language not quite so strong ?) Having thus expressed 
 himself, he becomes afraid of his reader falling into the 
 mistaken notion of his meaning, which, notwithstanding 
 the warning, it would seem the Attorney General has realry 
 fallen into, of supposing that he had been too much 
 inclined to overlook the errors in the French system, 
 and that he who had argued against our system, and in 
 favour of the Enemy's, might be supposed too generally fond 
 of the latter ; apprehensive of a mistake so injurious to him, 
 and feeling that it was necessary for him to qualify his 
 observation, in order to protect himself from such a miscon- 
 ception He first says, " Let it not be supposed that we intend 
 (i these remarks to excite a vague and indiscriminate senti- 
 i( ment against punishment by military law,'" You perceive, 
 Gentlemen, that before proceedingto guard his reader against 
 the idea of his general partiality to the French system, he 
 stops for the purpose of correcting another misrepresentation, 
 another mistake of his meaning, into which also the 
 Attorney General has repeatedly been betrayed this day. 
 The writer, fearing lest he should not have guarded his 
 reader, and especially his military reader, if he should have 
 one, against the supposition of his being an enemy to military 
 punishment in the general, states distinctly, that severe 
 punishment is absolutely necessary in the Army ; and he pro- 
 ceeds to express himself in words which are nearly the same 
 as those used by the Attorney General, for the purpose of 
 shewing that there was something enormous in attacking 
 the system of corporal punishment. Says the Attorney 
 General, he is endeavouring to inflame the subjects of this 
 country against the whole penal code of the Army ; he is 
 endeavouring to take away the confidence of the soldier 
 in those military regulations which must be enforced, while
 
 40 
 
 we have an army at all. All this is mere rhetoric : exactly 
 so thought the author of this work. He was afraid some 
 person might fall into the same mistake, and accordingly 
 he warns them against this error ; he says, " Let it not be 
 44 supposed that we intend these remarks to excite a vague 
 * 4 and indiscriminating sentiment against punishment by 
 44 military law : no ; when it is considered that discipline 
 44 forms the soul of an army, without which it would at 
 44 once degenerate into a mob ; when the description of 
 ff persons which compose the body of what is called an 
 " army, and the situation in which it is frequently placed, 
 44 are also taken into account, it will, we are afraid, appear 
 " but too evident that the military code must still be 
 44 kept distinct from the civil, and distinguished by great 
 tl promptitude and severity. Buonaparte is no favourite 
 44 of ours, God wot !" Then, with respect to the French 
 mode of punishment and our own, he observes : " It 
 " may be said, he (Buonaparte) punishes them (his 
 i$ troops) in some manner. That is very true ; he im* 
 " prisons his refractory troops, occasionally in chains, and 
 44 in aggravated cases he puts them to death." Is this 
 not dealing fairly with the subject ? Is this keeping out of 
 sight every thing that makes against his argument, and 
 stating only what makes for it ? Is he here mentioning the 
 French military punishments, to prove that we ought to 
 abandon the means of enforcing our military discipline? 
 No, he does ndt argue so unfairly, so absurdly. His 
 argument did not require it : he states, that the French 
 punish their soldiers in a manner which I have no doubt 
 some will think more severe than flogging: he states, that 
 Buonaparte punishes his refractory troops with chains, and 
 with the highest species of all human punishment with 
 death. This is exactly the argument of the Defendants, or of 
 the author of this composition ; and it is the argument fall 
 those who reprobate the practice of flogging. They contend, 
 that he (Buonaparte) does not, and that we ought not to
 
 41 
 
 flog soldiers ; but that he punishes them with chains or death, 
 and so ought we. They maintain, that for those offences for 
 which one thousand lashes are inflicted, and many of the first 
 authorities in this country maintain, and always have 
 maintained, that death itself should be inflicted but not 
 flogging, that the more severe, but more safe and appro- 
 priate punishment is to be preferred. The argument is not 
 used out of compassion to the soldier, not for the purpose 
 of taking part with him. He does not tell him who has been 
 guilty of mutiny, ' Your back is torn with the lash, you 
 are an injured man, and suffering unmerited hardships 
 you, avIjo have kicked and beat your officer, ought not 
 to be punished in so cruel a way, as by being tied to the 
 triangles and lacerated with whipcords this is not what 
 he tells the soldier. No ; he says ' The punishment you 
 receive, is an improper punishment altogether, because it 
 is hurtful to military discipline, because it wounds the 
 feelings of the soldier, and degrades him in his own es- 
 timation, because it ruins irretrievably many a man who 
 might be reclaimed from irregular courses, and saves the 
 life only, but without retaining the worth of him who, like 
 you, have committed the highest offences : therefore such 
 a punishment is in no instance fit to be inflicted. But do 
 not think that you are to get off without the severest punish- 
 ment you, who have been guilty of mutiny ; do not 
 think that military punishments ought not to be more se- 
 vere than the civil : my opinion, indeed, is, that you ought 
 not to be flogged, because there are reasons against that 
 practice, wholly independent of any regard for you ; but 
 then I think that you ought to be confined in chains, or 
 put to death.' It is not tenderness towards the soldier, it is 
 not holding up his grievances as the ground for mutiny; it 
 is a doctrine which lias for its object the honour of all sol- 
 diers: it proceeds from a love of the military service; it is 
 calculated to raise that service, and, by raising it, to pro-
 
 42 
 
 mote the good of the country. These are the motives, 
 these are the views of this train of argument. Instead of 
 holding out the idle dream, that the soldier ought not to be 
 punished, he addresses himself to the soldier, solely on account 
 of the system of which he forms a part ; solely on account 
 of the effects which his punishment may produce on the 
 Army : but as to the individual soldier himself, he holds 
 the very language of severity and discipline ; he tells 
 him in pretty plain, nay in somewhat harsh terms, that 
 strictness is necessary in his case, and that he must be treated 
 far more rigorously than any other class of the community. 
 Furthermore, he tells him, that a severer punishment than even 
 flogging is requisite, and that, instead of being scourged, he 
 ought to be imprisoned for life, or shot. He then goes to an- 
 other topic but it is almost unnecessary to proceed further 
 with the qualifications of his opinion : he says, " We despise 
 (i and detest those who would tell us, that there is as much 
 Xi liberty now enjoyed in France as there is left in this 
 " country." Is this the argument, is this the language of 
 a person who would hold up to admiration what our ene- 
 mies do, and fix the eye of blame only on what happens at 
 home ? Is this the argument from which it is to be inferred, 
 that he went over to pry out the blessings enjoyed by our 
 enemies, in order to stir up discoutent among ourselves ? If 
 such had been his intention, was this vehement expression 
 of contemptuous indignation against those who are over- 
 forward to praise the French, likely to accomplish such an 
 intention ? Surely such expressions were more than his ar- 
 gument required. He goes out of his way to reprobate men 
 of unpatriotic feelings ; menwhose]hearts are warm towards 
 the enemies of their country. It was the gist of his argu- 
 ment to shew that the French discipline being superior to 
 ours, (as in the opinion of Sir Robert "Wilson and General 
 Stewart it appears to be), we ought to seek the amendment 
 of our system by availiug ourselves of the example of out 
 enemies : but he says, 'Dojiot believe I am against punishing
 
 43 
 
 the soldier because 1 am averse to flogging him or that I 
 belong to the description of persons who can see nothing 
 in the conduct of our enemies deserving censure:' on the 
 contrary, he warns the soldier that rigour of discipline is 
 his lot and that he must expect the severest infliction of 
 punishment which man can endure and he purposely, 
 though I admit unnecessarily for his argument, inveighed 
 against too indierriminate an admiration of France, in 
 words which I shall repeat, because they are important, 
 and because my learned friend passed hastily over them : 
 " We despise and detest those who would tell us, that 
 * there is as much liberty now enjoyed in France as there is 
 if left in this Country" 
 
 Such, Gentlemen, is the publication on which you are 
 called upon to decide : it is an argument, qualified by re~ 
 striciiom and limitations, upon an important branch of the mi- 
 litary policy of this Country. In pursuing this argument, it 
 was necessary the writer should choose a topic liable to 
 misconception the comparison of the system of the 
 French army with our own : his argument could not be 
 conducted without a reference to this point ; but, to pre- 
 vent it from abuse, he guards it by the passage I have read, 
 and by others which are to be found in the body of the 
 composition. And he is now brought before you for.a libel, 
 on this single ground, that he has chosen such topics as the 
 conduct of his argument obviously required ; and used such 
 language as the expression of his opinions naturally called 
 forth. 
 
 Gentlemen, I pray you not to be led away by any ap- 
 pearance of warmth, or even of violence, which you may 
 think you perceive merely upon cursorily looking over this 
 composition. I pray you to consider the things 1 have 
 been stating to you, when you are reflecting upon the able 
 and eloquent remarks of the Attorney-General ; more espe- 
 cially upon the observations which he directed to the pecu- 
 liarly delicate and invidious topics necessarily involved 
 in the argument. The writer might have used these topics 
 without the qualifications, and still I should not have been
 
 44 
 
 afraid for his case. But lie has not so used them he has not 
 exceeded thebounds which anything that deservesilhenameof 
 free discussion must allow him. He has touched, and only 
 touched, those points which it was absolutely impossible to 
 pass over, if he wished to trace the scope of his opinions; 
 and those points he had a right to touch nay to dwell 
 upon (which he has not done), unless you are prepared to 
 say that free discussion means this, that I shall have the 
 Choice of my opinion, but not of the arguments whereby I 
 may support and enforce it or that I shall have the choice 
 of my topics, but must only choose such as my adversary 
 pleases to select for me ; unless you are prepared to say, that 
 it is a free permission freely to discuss public measures, which 
 prescribes not merely the topics by which my sentiments are 
 to be maintained, but also the language in which my feelings 
 are to be conveyed ; for if there is a difference in the irnpor-- 
 tance of different subjects, if one person naturally feels more 
 strongly than another upon the same matter, if there are some 
 subjects on which all men, who in point of animation, areabove 
 the level of a stock or a stone, do feel warmly; have they not 
 a right to express themselves in proportion to the interest 
 Which the question naturally possesses, and to the strength 
 of the feelings it excites in them ? If they have no such 
 power as this, to what, I demand, amounts the boasted pri- 
 vilege ? It is the free privilegeofa fettered discussion ; it is the 
 unrestrained choice of topics which another selects ; it is the 
 liberty of an enslaved press ; it isthe native vigourof impotent 
 argument. The grant is not qualified, but resumed by the 
 conditions. The rule is eaten up with exceptions ; and he who 
 gives you such a boon, and calls it a privilege or a franchise, 
 cither has very little knowledge of the language he uses, or 
 but a slight regard for the understandings of those whom he 
 addresses. I say, that in the work before you, no individual 
 instance of cruelty has been selected for exaggerated descrip- 
 tion, -or even for remark ; no specific facts are commented on, 
 no statements alluded to in detail ; scarcely are the abuses 
 of the system pointed out ; though the eloquent author
 
 45 
 
 might well have urged them as arguments against a system 
 thus open to abuse. It is the system itself which is im- 
 peached in the mass ; it is the general policy of that system 
 which is called in question ; and it is- an essential part of 
 the argument, a part necessary to the prosecution of the in- 
 quiry, to state that thesystem itself leads to cruelty, and that 
 cruelty cannot fail to be exercised under it. This is among 
 the most important of the arguments by which the subject 
 must needs be discussed : and if he has a right to hold, and 
 publicly to state an opinion on this subject at all, he has not 
 only a right, but it is his duty to enter into this argument. 
 But then the Attorney General maintains, that it tends to 
 excite mutiny, and to deter persons from enlisting in the 
 Army : Now, Gentlemen, I say that this fear is chimerical ; 
 and I desire you to lay out of your view every thing I have 
 stated from the high authorities whose sentiments you have 
 heard : I request you to leave out of your sight the former argu- 
 ments urged by me, that you cannot impute any evil intention 
 to their books, because you cannot to their authors. I ask you 
 to consider, whether there is any visible limit to the argument 
 which the Attorney General has pressed on you, when he 
 asserts, that the tendency of this publication is to excite 
 disaffection among the soldiers, and to prevent the recruit- 
 ing of the Army ? I ask you whether any one of those points 
 which are the most frequently discussed, at all times, and 
 by persons of every rank, can in any conceivable way be 
 discussed, if we are liable to be told that in arguing, or in 
 remarking upon them, our arguments have a tendency to 
 excite sedition and revolt ? What are the most ordinary 
 of all political topics ? Taxes, wars, expeditions. If a 
 tax is imposed which in my conscience I believe to be fraught 
 with injustice in its principle, or to originate in the most 
 perverse impolicy; to produce the most galling oppression 
 in the manner of its collection ; can I speak otherwise than 
 severely ? or, however moderately I may express myself, can 
 I speak otherwise than most unfavourably of it, even after the
 
 46 
 
 Legislature has sanctioned it, and laid it on the country t 
 And jet the Attorney General may say, * What are you 
 about ? you are exciting the people to resistance ; you are 
 touching the multitude in the tenderest point ; and stirring 
 them up to revolt against the tax-gatherers, by persuading 
 them that the collection of the imposts is cruel and oppres- 
 sive, and that the government has acted unwisely or un- 
 just! j', in laying such burthens on the people.' Js it rebel- 
 lious to speak one's sentiments of the expeditions sent from 
 this country ? if a man should say, * You are dispatching 
 yourgallanttroops toleavetheirbonesin those charnel-houses, 
 as Sir Robert Wilson calls them, which you are constantly 
 purchasing in the West Indies with the best blood of Eng- 
 land ; you are sending forth your armies to meet, not the 
 armies of the enemy, but the yellow fever ; you are pouring 
 your whole forces into Walcheren, to assail, not the armies 
 of France, not the iron walls of Flanders, but the pestilential 
 vapours of her marshes' such things have been uttered 
 again and again, from one end of the empire to, the other, 
 not merely in the hearing of the country, but in the hearing 
 of the troops themselves : but did any man ever dream of 
 sedition, or a wish to excite mutiny being imputable to those 
 millions by whom such remarks have been urged ? Do 
 those persons of exalted rank, and of all ranks, (for we all 
 have a right to discuss such measures, as well as the states- 
 men who rule us) do those men within the walls of Parlia- 
 ment, and without its walls, (for surely all have equally the 
 right of political discussion, whether they have privilege of 
 parliament or no) do all who thus treat these subjects pur- 
 posely mean to excite sedition ? Did any one ever think of 
 imputing to the arguments of persons discussing in this way 
 those matters of first-rate national importance, that they had 
 a tendency to produce revolt, and excite the soldiers to 
 mutiny ? There is another subject of discussion which 
 immediately strikes one; it is suggested to you immediately 
 by the passage which I formerly read from Sir Robert
 
 47 
 
 Wilson ; indeed, lie introduces it in lamenting the treatment 
 of the soldiers. I am referring to those signal, and I rejoice 
 to say, successful efforts made by our best statesmen of all 
 parties, on behalf of the West-Indian slaves. Could there 
 be a more delicate topic than this ? a more dangerous sub- 
 ject of eloquence or description ? Can the imagination of 
 man picture one that ought to be more cautiously, more 
 scrupulously handled, if this doctrine is to prevail, that no 
 person must publish what any person may suspect of having 
 a tendency to excite discontent and rebellion ? And yet were 
 not all the speeches of Mr. Pitt, (to take but one example,) 
 from beginning to end, pictures of the horrors of West-Indian 
 slavery ? And did any one, in the utmost heat of the con- 
 troversy, or in the other contentions of party, or personal 
 animosity, did any one think of accusing that celebrated 
 statesman of a design to raise discontent, or shake the 
 tranquillity of the Colonies, although he was addressing his 
 vehement and impassioned oratory to Islands where the op- 
 pressed blacks were to the tyrannizing whites, as the whole 
 population compared with a few hundred individuals scat- 
 tered over the West-Indian seas ? I say, if this argument 
 is good for any thing, it is good for all ; and if it prores 
 that we have no right to discuss this subject, it proves that 
 we have no right to discuss any other. 
 
 But I dare say, that one circumstance will have struck 
 you, upon hearing the eloquent address of my learned 
 friend. I think you must have been struck with something 
 which he would have kept out of sight : he forgot to tell 
 you, that no discontent had been perceived, that no revolt 
 had taken place, that no fears of mutiny had arisen ; that, 
 in short, no man dreamt of any sort of dangers from the 
 
 INFLICTION OF THE PUNISHMENT ITSELF ! The men 
 
 therefore are to see their comrades tied up, and to behold 
 the flesh stripped off from their bodies, aye, bared to the 
 bone ! they are to see the very ribs and bones from which 
 the mangled flesh has been^scourged away, without a senti-
 
 ment of discontent, without one feeling of horror, without 
 any emotion but that of tranquil satisfaction ! And all this 
 the by-standers are also to witness, without the smallest risk 
 of thinking twice, after such a scene, whether they shall 
 enter into such A service! There are no fears entertained 
 of exciting disaffection among the soldiers themselves by 
 the sight of their comrade thus treated : there is, it seems, 
 no danger of begetting a disinclination to enlist, among the 
 surrounding peasantry, the whole fund from which the re- 
 sources for recruiting your army are derived ! All this, you 
 say, is a chimerical fear ; perhaps it is : I think quite 
 otherwise ; but be it even so : let their eyes devour such 
 sights, let their ears be filled with the cries of their suffering 
 comrades; all is safe, there is no chance of their being 
 moved j no complaint, no indignation, not the slightest 
 emotion of pity, or blame, or disgust, or indignation, can 
 reach their hearts from the spectacle before them. But 
 have a care how, at a distance from the scene, and long 
 after its horrors have closed, you say one word upon the 
 subject ; see that you do not describe these things, (we have 
 not described them ;) take care how you comment upon 
 them (we have not commented upon them ; ) beware of al- 
 luding to what has been enacting (we have scarcely touched 
 any one individual scene) ; ^but above all, take care how you 
 say a word on the general question of the policy of the 
 system ; because, if you should attempt to express your 
 opinions upon that subject, a single word of argument, one 
 accidental remark, will rouse the whole Army into open re- 
 volt ! The very persons upon whom the flogging was in- 
 flicted, who were not to be excited to discontent at the 
 torture am} disgrace of their sufferings; they will 
 rebel at once, if you say a word upon the policy [of 
 such punishments. Take no precautions for concealing 
 .such sights from those whom you would entice into the 
 service ; do not stop up their cars while the air rings with 
 the lash ; let them read the horrors of the spectacle in the
 
 49 
 
 faces of those who have endured it. Such things cannot 
 move a man : But description, remark, commentary, argu- 
 ment, who can hear without instantaneous rebellion ? 
 
 Gentlemen, I think I have answered the argument of the 
 Attorney General upon the dangers of such discussions ; 
 and in answering it, I have removed the essential part of the 
 Information, without which this prosecution cannot be 
 sustained ; I mean the allegation of evil, malicious, and se- 
 ditious intention, on the part of the author and publisher of 
 the work. I have done I will detain you no longer even 
 if I could, I would not go further into the case. The whole 
 composition is before you. The question which you are to 
 try, as far as I am able to bring it before you, is also sub- 
 mitted to you And that question is Whether, on the most 
 important and most interesting subjects, an Englishman still 
 has a privilege of expressing himself as his feelings and his 
 opinions dictate ? 
 
 Gentlemen, I shall not trouble his Lordship or you by 
 calling any witnesses. 
 
 Mr. Attorney General. 
 
 Gentlemen of the Jury : 
 
 I doubt not but you have gone along with me in admiring 
 the very eloquent address you have received from my learned 
 friend. There is nothing in .which I more disagree with 
 him, than in the lamentation which he made for the fate of 
 his clients, as persons having for their Counsel one who was 
 opposed to unequal force in their cause, and not competent 
 to meet the attack by any abilities of which he was pos- 
 sessed, compared with those of the person who had to di- 
 rect the attack. My learned friend, by the display of his 
 abilities, has answered that part of his own argument. 
 There is another observation of my learned friend's, which I 
 can as little agree in ; he states that his clienls have to con- 
 tend with the influence of the Attorney General. There 
 exists no such influence my learned friend knows there 
 
 H
 
 50 
 
 exists no such influence. While there are at tlie bar men 
 of his talents and eloquence, it is impossible it should exist, 
 even if persons in the situation in which I am placed had 
 the power, and were wicked enough to exert it. I agree 
 with my learned friend in all the general observations he 
 has made, as to the licentiousness of the press, and the 
 grounds we have to deplore those practices which are so 
 hostile to the liberty of the press. I agree with him in de- 
 ploring their effects on private character. I do not, how- 
 ever, attribute the whole of the evils which Ije laments, to 
 the causes to which he ascribes them. I go further than he 
 does in lamenting their effects ; and I believe I see those 
 effects carried to a greater extent than he does. It is not 
 only those who are libelled, but ten thousand who are not 
 libelled, who feel the scourge of the libeller. You know 
 not how many persons of weak nerves there are, who are 
 held in contribution by this trade of libelling: we know it 
 from the records of this Court, that the question is, not 
 whether what they publish is true, not whether it will 
 benefit or injure the party but whether it is likely to sell 
 their paper. We have it ou the affidavit of a proprietor of 
 a Paper, that they consider alone, either on politics or any 
 other subject, what will best promote the sale of their 
 Paper ; and that they adopt what they call the popular line, 
 because they derive among the three hundred proprietors 
 of a Paper*, a greater degree of profit. On this account and 
 qthers, I join with him in those lamentations he has ad- 
 dressed to you on the state of the press, and in none more 
 warmly than on the ground I recently stated, of the number 
 of persons who are not libelled, but kept under daily con- 
 tribution to avoid it. 
 
 I agree with my learned friend, that the conduct of public 
 men must be left open to fair discussion : but if he meant to 
 
 * The Attorney General alludes to an affidavit made by one 
 of the proprietors of The Day newspaper upon a recent pro- 
 secution.
 
 51 
 
 include in that proposition, that public men, because they 
 are public men, may be libelled in newspapers, there I dis- 
 agree with him. I do not say that the situation of a public 
 man, or any other character, prevents him from having his 
 public conduct fairly and freely discussed : but if malignity 
 or revenge appear to actuate those who publish their obser- 
 vations, no pretence of discussing public measures renders 
 such a publication innocent. When my learned friend 
 stated to you what might, and what might not be published 
 with impunity, I observed that he did not enter into the 
 consideration of those repeated attacks which are made on 
 the public peace by such publications as I have insisted 
 before you, and shall further insist, and shall prove to your 
 satisfaction, this publication is. To talk of this publication 
 as a discussion a free and liberal discussion of a public 
 measure to talk of this as supported and justified by the 
 example of the gallant officer who sits by his Lordship, Sir 
 Robert Wilson, or of the late Brigadier-General Stewart 
 to draw up a rank of men, placing the publisher and 
 printer of the Examiner by the side of General Stewart, 
 and Sir Robert Wilson why it is laughable ! v Who are 
 those officers to whom he refers ? Men of the highest cha- 
 racter and rank, in a profession which they adorn men 
 entitled to attention from the public. Whether upon such 
 a subject it was well advised in them to give their thoughts 
 to the public, particularly as they might have rendered 
 them more effectual by other communications Avhich their 
 situations enabled them to make to men in power whether 
 it was prudent for them to indulge themselves in such ardent 
 and glowing language as my learned friend has read from 
 one of the publications is not for me to discuss : but this 
 I know, that it is in human nature, especially in men of 
 strong and firm, and perhaps of abstinent mind, when they 
 have taken up an opinion, and are desirous of urging that 
 opinion, and of recommending its adoption by others, not
 
 52 
 
 always to look to the collateral effects of the means they 
 employ. 
 
 Whether that may have been the case with respect to the 
 publications alluded to, is a subject upon which 1 am igno- 
 rant, fori own I never heard of them till to-day. It is un- 
 necessary to discuss the point : but that those publications 
 were fair and liberal discussions of the questions upon which 
 they profess to treat, 1 have not theleast doubt ;and that those 
 honourable gentlemen, when they committed their thoughts 
 to the press, and gave them to the public, had no other 
 object than that of submitting their opinions to the fail 
 consideration of those to whom they were addressed. 
 And the question for you to-day, is whether that was the ob- 
 ject of Messrs. Hunts. 
 
 My learned friend has, in different parts of his address, 
 stated the question for your consideration in a very different 
 manner. At one time he stated it correctly. He said that 
 the question was, what was the intention of the persons who 
 published this paper? I agree with him: but then we are 
 to consider from what source we are to collect that inten- 
 tion. It is only from the language used in the text f that we 
 are able to collect the intention ; and therefore his Lordship 
 will tell you, that the publication which has a tendency to 
 produce a mischievous object, must be considered as having 
 been published with a mischievous design. I cannot dive 
 into a man's thoughts : but I say he is answerable for all the 
 mischiefs which the doctrines published by him have a 
 natural tendency to produce; and the language in which 
 he expresses himself, and the manner in which he weaves 
 together the different articles of his composition, furnish the 
 only clue by which you can unravel what his intention is. 
 In that view of the proposition, I agree that the question for 
 your consideration is, what was the intention of those pub- 
 lishers : that intention is to be collected from the work it- 
 self. But my learned friend, having heated himself in the 
 course of his argument, said that the question was, whether
 
 53 
 
 Englishmen should discuss a public subject in such language 
 as was fittest to convey their own sentiments ? God forbid 
 I should dispute the truth of the proposition, that every 
 Englishman has that right. I would be the first to stand 
 forward and support the liberty of the press, if any man 
 was bold or wicked enough to attempt to restrain it. Do 
 I to-day make it a question whether a man shall be per- 
 mitted, in the free discussion-of a public measure, to ex- 
 press himself, while he confines himself within the bounds 
 of decency and propriety, in such words as occur to him to 
 be the fittest? No such thing; what I impute to the 
 author of this publication is, that he has not for his real ob- 
 ject the free candid discussion of a great political question ; 
 but that his object is to render the soldiers of our Army dis- 
 contented with their situation ; and that the publication 
 has for its end and object, and is likely to produce as its 
 effect, the preventing others from entering into the service. 
 I know very well that, looking through this paper, you 
 will find many qualifying terms by which the publisher 
 thought to escape punishment ; by which he meant to im- 
 pose on those who might say he was favouring the French. 
 To avoid this, he says : ' You will find paragraphs in which 
 i speak against the French ; you say I am an enemy to 
 military discipline ; you will find passages in which I say 
 it must be kept up.' True ; but when he draws the balance 
 between this country and France, does he draw the compa- 
 rison fairly, and does he state the account justly before he 
 strikes the balance? for you will recollect, the balance is 
 struck direetly in favour of the French. In one passage of this 
 paper he states, that on comparing the French with the 
 British military service, he has no doubt as to giving the 
 preference to the former. Now, my learned friend would 
 defend his clients to-day, on the example of Sir Robert 
 Wilson : I am sorry that gallant officer should be present, 
 while he hears himself placed by the side of such compa- 
 nions. Does my learned friend mean to say, that Sir Robert
 
 54 
 
 Wilson has treated this subject, and given his thoughts to 
 the public as the Defendants have done ? Does he recol- 
 lect, that if he is to bring them together, he must raise the 
 Defendants to the height of Sir Robert Wilson, or he must 
 reduce Sir Robert Wilson to the situation of the Defendants? 
 and are these two publications to be brought in comparison 
 with each other ? Had Sir Robert Wilson the same views 
 by his publication which, on looking to this, it is obvious 
 the Defendants had ? It is a fair question had the Defen- 
 dants the same object and views as Sir R. Wilson ? Now I 
 will try that question ; and I am glad to try it in the pre- 
 sence of Sir Robert Wilson. I say, that the author of this 
 work has diligently, industriously, and wilfully, presented 
 to the public, a debased picture of the state of the British 
 Array; setting up against it the practice of Buonaparte, 
 and giving the decisive preference to Buonaparte. 
 
 The example of Sir Robert Wilson is brought forward as 
 justifying this ; and I am asked, how can you prosecute the 
 publisher of this paper, when you did not prosecute Sir 
 Robert Wilson? I take it for granted that every part of Sir 
 Robert Wilson's book, which bears favourably for the De- 
 fendants, has been produced, and the only passage in which 
 he makes mention of the French, is this: he says, " France 
 u allows of flogging only in her Marine;" that is the only 
 instance in which it occurs. It was natural it should be^in- 
 troduced and how is it introduced ? Is it made the bur- 
 then of his publication ? Is it that which from the begin- 
 ning to the end he is constantly alluding to as the topic he 
 wished to press ? Does he enter into the consideration of 
 military punishments apparently only to give the prefe- 
 rence to the French ? No, he introduces mention of the 
 French but once ; and that too incidentally, not as form- 
 ing any part of the large discussion in which he is con- 
 cerned. That is the only occasion on which he makes 
 any mention of the French. Docs he introduce his ap- 
 plication with reference to any former prosecution of a
 
 55 
 
 libeller? If he had, I should have no scruple in saying, that, 
 however he had endeavoured to cover and conceal it, he 
 must have had some object beyond the free and liberal 
 discussion which my learned friend says ought to be al- 
 lowed to every man on every subject. Jf [ had found 
 that Sir Robert Wilson had introduced his publication with 
 a motto which had a reference to the publication of 
 another libel, that gallant officer would not have com- 
 plained of my supposing that he must have had some 
 other object in view. Now, having stated that, I have 
 nothing to do but to call you back to the libel itself. 
 It begins: "One thousand lashes! (from the Stamford 
 News /') collecting his authorities from all the cases he can 
 find How does he introduce them ? " The aggressors 
 " were not dealt with as Buonaparte would have treated 
 " them." This is the first, last, and middle burthen of 
 his publication; this is every thing to him: he never can 
 quit the subject of raising Buonaparte, and lowering the 
 state of our military discipline. He begins with taunt- 
 ingly introducing the observation 1 had made on a 
 former prosecution : " The aggressors were not dealt with 
 " as Buonaparte would have treated his refractory troops. 
 Speech of the Attorney General." Then he enumerates 
 several instances in which military punishment had been 
 inflicted. He proceeds : " The Attorney General said what 
 " was very true these aggressors have certainly not been 
 " dealt with as Buonaparte would have treated his re- 
 " fractory troops:" thus pressing out of his course what 
 the Attorney General is supposed to have said, for he could 
 not have said it with reference to these cases. He goes on : 
 " nor indeed as refractory troops would be treated in 
 " any civilized country whatever, save and except this 
 " country. Here alone, in this land of liberty; iri this 
 " age of refinement; by a people who, with their usual con- 
 " sistency, have been in the habit of reproaching their 
 H neighbours with the cruelty of their punishments, is
 
 56 
 
 " still inflicted a species of torture at least as exquisite as 
 " any that was ever devised by the infernal ingenuity of 
 " the Inquisition." Now, what does he return to ? " No, 
 '? as the Attorney General says, Buonaparte does not treat 
 a his refractory troops in this raanuer." Then, when he 
 comes to describe, in his glowing and ardent manner, the 
 mode of punishment inflicted on our troops, does he con- 
 fine himself to merely stating that it is inflicted on Bri- 
 tish subjects ? No, his delight is to state that Buon parte has 
 the advantage over us. He exalts Buonaparte, on the ground 
 that our system is notthesystem in France. He says : u There 
 u is not a man in his ranks whose back is seamed with the la- 
 l f cerating cat-o'nine-tails. His soldiers have never yet been 
 " brought up to view one of their comrades stripped naked, 
 " his limbs tied with ropes," and so on, not stating this 
 as the punishment inflicted on British soldiers, but exult- 
 ing that Buonaparte's soldiers are not subject to it. 
 
 My learned friend says, the writer was aware of this, 
 and therefore that this interpretation must be put upon it 
 that he has guarded his statement by observations of an op- 
 posite tendency I do really believe my learned friend speaks 
 from the first authority on that subject ; I do believe that 
 he knew what the intention of the writer was, and that he 
 had attempted to guard against the obvious impression of 
 his writers. It is only in that way I can account for what 
 he relies on, by shewing that the author is not an unquali- 
 fied admirer of Buonaparte. What does he say ? " Buo- 
 " naparte is no favourite of ours, God wot! but if we 
 ** come to balance accounts with him on this particular 
 *f head, let us see how matters will stand He recruits his 
 " ranks by force so do we We flog those we have forced 
 " > he does not. It may be said, he punishes them iu 
 <c some manner that is very true. He imprisons his re- 
 " fractory troops occasionally in chains, and in aggrava- 
 " ted cases he puts them to death : but any of these sevc- 
 ' rities is preferable to tying a human creature up like a
 
 57 
 
 " dog, and cutting his flesh to pieces with whipcord." 
 Now, if we come fairly to consider this, the advice that 
 this libeller gives to us is to adopt the system of Buona- 
 parte, in preference to our own, because he tells you that, 
 on the balance of the account, Buonaparte's system is the 
 best not that he would not have us improve even on Buo- 
 naparte's system. Has he stated the account justly, al- 
 lowing that he has taken into the account the imprison- 
 ment in chains and sometimes death ? Has he taken into 
 account the manner in which Buonaparte's troops are 
 driven, or rather dragged to the ranks has he stated the 
 manner in which the Frencli conscriptions are carried into 
 effect? When he is stating the account, and drawing a 
 balance, could he, could any man, who meant to have 
 dealt fairly, have been totally silent on that most material 
 part of the subject 2 It is not possible, if his intent had been 
 to have discussed the question fairly and with candour. 
 
 I stated this in my first address to you, expecting it would 
 have received some answer. I pointed out that there was that 
 omission in the statement of the account, and I argued it as a 
 proof that the author was writing against his better judg- 
 ment. But no answer has been given, because none could be 
 given. On proceeding, it is said, that there is a further qualifi- 
 cation. He says he is not an admirer of the present state of the 
 French government ; nor does he think that the French en- 
 joy as much liberty as the people of this country. Upon 
 my word, a very ample allowance ! a very ample admis- 
 sion 1-r-that the people of France, whose sufferings we read 
 of in every paper that comes to our hands, are not in the 
 enjoyment of an equal degree of liberty with ourselves ! 
 He admits that the French are not in the enjoyment of so 
 much public liberty as are the British ; and by making that 
 allowance, he hopes he shall induce you to think that he has 
 drawn his picture without partiality. It confirms what my 
 learned friend states, that he was aware of the interpretation 
 which might be put upon his publication, and therefore he 
 
 i
 
 58 
 
 Las wrongly and insufficiently thrust in that which he 
 hopes will induce you to think he had no bad intention. 
 If any thing was wanting to make up the account, let 
 us see what he further states. He introduces it by this 
 comparison. He says, " he sees nothing peculiarly pitiable 
 " in the lot of Buonaparte's soldiers when compared with 
 " that of our own : were we called upon to make our elec- 
 " tion between the services, the whipcord would at once 
 " decide us. No advantage whatever can compensate for, 
 " or render tolerable to a mind but one degree removed 
 " from brutality, a liability to be lashed like a beast ! !" 
 
 When I stated the libel before, I did not trouble you 
 with the whole of it. Look at the insulting manner in 
 which the author concludes it : " We have heard of an 
 U army of slaves which had bravely withstood the stzords 
 " of their masters, being defeated and dispersed by the bare 
 " shaking of the instrument of flagellation in their faces. 
 " This brought so forcibly to their minds their former state 
 " of servitude and disgrace, that every honourable impulse 
 " at once forsook their bosoms, and they betook themselves 
 " io flight and to howling. We entertain no anxiety 
 " about the character of our country men in Portugal, 
 " when we contemplate their meeting the bayonets of 
 u Massena's troops, but we must own that we should 
 ** tremble for the result, were the French General to dis- 
 " patch against them a few hundred drummers, each bran- 
 ft . dishing a cat -o' -nine-tails." 
 
 Why, Gentlemen, can you attribute that insulting, that 
 infamous paragraph can you attribute it to any thing but 
 a desire to degrade the British soldiery in the opinion of 
 those under whose eye it might fall ? It has been said, that 
 the infliction of this punishment lowers the spirit of the 
 soldier. I am a plain man, and I can look only to efFects 
 in order to judge of causes ; and I beg to bring to your re- 
 collection the battles of Alexandria, Maida, Corunna, Ta- 
 lavera, Buzaco, and the other achievements by which our
 
 59 
 
 armies have been distinguished and then I will ask yon, 
 whether these troops, so distinguished by valour and dis- 
 cipline can be considered as subject to a military code of 
 laws which lowers the spirit, and degrades them in their 
 own estimation. Men degraded and lowered in their own 
 estimation will never stand as our brave troops have suc- 
 cessfully done in the front of the Enemy. 
 
 Gentlemen, with these observations, I shall leave this case 
 to your decision, fully persuaded, that although my learned 
 friend may have placed his Clients by the side of Sir 
 Robert Wilson and General Stewart, you will, by your 
 Verdict, place them with the other libellers of the day. 
 
 SUMMING UP. 
 
 Lord Ellenborough. 
 
 Gentlemen of the Jury : 
 This is an Information for a Libel, filed against John Hunt 
 and Leigh Hunt, the publisher and printer of a Paper, in 
 which they have a joint property, called The Examiner: 
 And the Information states, that the Defendants, being 
 malicious, seditious, and ill-disposed persons ; and un- 
 lawfully, and maliciously devising, and intending to 
 injure the Military Service of our Lord the King ; 
 and to insinuate, and cause it to be believed, that an 
 improper and cruel method of punishment was practised 
 in the Army of our said Lord the King ; and that per- 
 sons belonging to the said Army were punished, ac- 
 cording to such method, with great and excessive seve- 
 rity ; and thereby to raise and excite discontent and dis- 
 affection in the minds of the persons belonging to the 
 said Army ; and to deter the liege subjects of our said
 
 60 
 
 Lord the King from entering into the same; on the 
 3d day of September, in the fiftieth year of the reign of 
 the King, published the paper in question : And the 
 question for you to try is, whether the publication has 
 fairly the tendency imputed to it ? If it has that ten- 
 dency, the persons must be punished who have pub- 
 lished it, intending to produce that effect. If it shall 
 appear to you that such is the obvious tendency of the 
 paper which is in evidence, then what it is incumbent 
 on the Prosecutor to prove, will have been made out. 
 It is only by comparing the different parts of the Libel, 
 that you can come to a just conclusion. When I say 
 Libel, I call it that which it is stated to be in the In- 
 formation it will be for you to say whether it is justly 
 so denominated. It has been slated by the learned Gen- 
 tleman, who is counsel for the Defendants, in a speech 
 of great ability, eloquence, and manliness, that the ques- 
 tion is, whether Englishmen have a right to discuss 
 public measures, and may give their opinions on a par- 
 ticular cast of policy ? That is a question upon which 
 there can be but one opinion. It is competent for all 
 the subjects of his Majesty, freely, but temperately to 
 discuss, not only in conversation, between friend and 
 friend, but through the medium of the press, every ques- 
 tion connected with public policy : but, in proportion to 
 the importance and delicacy of the subject, in proportion 
 to the peril which may attend an inflamed discussion of a 
 subject, a guard is to be imposed upon the person at 
 the time he is indulging in the freedom of discussion ; 
 in order that he may take care he does no material in- 
 jury to private feeling, or the public peace and happiness. 
 Subject to this restriction, the Law of England allows 
 every man to publish what he pleases. He must, how-
 
 61 
 
 ever, be. cautious, (hat he does not make this privilege 
 a cloak to cover a malicious intention. 
 
 Gentlemen, we are placed in a most anxious and 
 awful situation. The liberty of the Country every thing 
 we enjoy not only our freedom as a nation, but the 
 freedom of every man, depends upon our fortunate re- 
 sistance to the arms of Buonaparte, and the force of 
 France which I may say is the force of all Europe, com- 
 bined under that formidable foe. It becomes us therefore 
 to see that there is not, in addition to the prostrate thrones 
 of Europe, an auxiliary within this country, and that he 
 has not the aid, for the furtherance of his object, of a British, 
 press. It is for you, between the public on the one hand, 
 and the subject on the other, to see that such a calamity 
 does not take place. 
 
 It is competent for the Defendants to discuss every 
 subject of public policy ; but, in proportion to its import- 
 ance, every man must see that no collateral mischief arises 
 out of what he publishes. We have had stated to us the 
 publication of an excellent officer near me, and Brigadier- 
 General Stewart, who is yet living (for the Attorney Ge- 
 neral was mistaken when he supposed him dead.) Both 
 those officers, in their publications, have commented on the 
 subject of military punishments. In the presence of one 
 of them, I have no difficulty in saying, that lie would have 
 done better if he had imposed more of a guard upon his 
 observations. The purity of his purpose no one can 
 doubt. He addresses his observations to the Minister of 
 the Country : but I think he would have done better, if, ou 
 a subject of such extreme delicacy, he had made his com- 
 munication in a more private manner. For, consider the 
 inflammation the irritation that may be excited by such
 
 62 
 
 observations in the minds of soldiers, on whose fidelity to 
 the customs of the country every thing depends. It 
 would have been more cautious in both those honourable 
 Officers, and would have been attended with less irritation, 
 if they had discussed the subject with Mr. Pitt, in a more 
 private form. The subject of military punishment is one 
 we cannot suppose not to have undergone the full con- 
 sideration of the excellent persons, who, at different times, 
 have had the command of the British armies. It is a sub- 
 ject which comes home to the bosom of every body ; and 
 we must suppose that those who are full of honour and 
 feeling, have not neglected to take such a subject into 
 their consideration. The question of enlisting for life has 
 undergone the anxious consideration of different govern- 
 ments ; and I know that the opinions of all the General 
 Officers have been collected individually, respecting the 
 policy and expediency of enlisting for life. I cannot say 
 whether any questions have been put to them on the 
 subject of military punishments. There are punishments, 
 the nature of which cannot properly be discussed. Sup- 
 posing a punishment to be a capital punishment, it is a 
 grievous thing to consider it is most mischievous and 
 painful to the feelings of the relatives and family of the 
 individual. If such a topic was to be discussed in an 
 inflammatory way, you might be electrified no man can 
 say to what extent he might be disabled from discharging 
 his duty, where the question was life or death, if his feelings 
 and sensibility were to be so strongly worked upon. It 
 would disable those even whose duty it is to pronounce the 
 law, and to draw the attention of Juries to issues of that 
 description. Therefore, it is not cutting down the liberty 
 of discussion, to require that such subjects are discussed
 
 63 
 
 modenilely, and that a person, in the exercise of an allowed 
 right, does not create more mischief than he attempts to 
 remedy. 
 
 Upon the subject of the present Libel, I will advert to 
 the terms of it, and put it to you, whether it is a fair dis- 
 cussion of the subject, or whether it is calculated to inflame 
 the passions to induce the soldiers to believe they are 
 worse dealt with than the soldiers of France to blunt their 
 resistance to the forces of Buonaparte, and to place us on 
 one side in unjust contrast with the military of France, 
 and other countries. Now, first, as to whether this is tem- 
 perate discussion reasoning in the temper of Sir Robert 
 Wilson ? Why ! is this in the way of temperate dis- 
 cussion ? The first thing that strikes one is this " ONE 
 THOUSAND LASHES !" in large letters. What is that 
 but to attract the mind to such a punishment as one thou- 
 sand lashes....to pourtray it as a circumstance of horror, and 
 excite feelings of detestation against those who had in- 
 flicted, and compassion for those who had suffered (appa- 
 rently suffered) such a punishment ? for it appears to have 
 been executed only in part. Then, as a text to comment 
 on, the Defendants say, u The aggressors were not dealt 
 " with as Buonaparte would have treated his refractory 
 " troops." Now they begin, you observe, not by discuss- 
 ing the subject in general not by saying that it would be 
 better, with a view to the moral feelings of the Army, if 
 ignominious punishments were done away ; they begin as 
 if there had been some excesses which ought to attract 
 attention to the punishment. " Corporal Curtis was sen- 
 u tenced to receive one thousand lashes ; but, after re- 
 " ceiving two hundred, was permitted to volunteer into a 
 " regiment on foreign service." It does not say what he 
 was punished for it does say what the other was punished
 
 6* 
 
 for William Clifford, a private in the 7th Royal Veteran 
 ** Battalion, was lately sentenced to receive one thousand 
 " lashes, for repeatedly striking and kicking his superior 
 " officer." I should have thought that would have been 
 mutiny punishable with death ; and whether the punish- 
 ment was a commutation for death, I do not know. If 
 there is any crime that shakes the foundation of military 
 subordination, it is that of striking a superior officer. Then 
 they say, " A Garrison Court- Martial has been held on 
 te board the Metcalf transport, at Spithead, on some men 
 li of the 4th regiment of foot, for disrespectful behaviour 
 " to their officers." And, without saying how much pu- 
 nishment was inflicted on one or the other, he accumulates 
 them ; he says, " Two thousand six hundred lashes were 
 *' to be inflicted among them." Then they take another 
 - u Robert Chillman, a private in the Bearstead and Mal- 
 " ling regiment of Local Militia, who was lately tried by 
 tc . a Court-Martial for disobedience of orders, and muti- 
 <s nous and improper behaviour while the regiment was 
 " embodied, has been found guilty of all the charges, and 
 <c sentenced to receive eight hundred lashes, which are to 
 " be inflicted on him at Chatham, to which garrison he is 
 " to be marched for that purpose." These they profess to 
 be extracts from the Loudon Newspapers. They have 
 taken from all the London papers those sentences to which 
 they wished to attract notice, as being excessive and se- 
 vere: then they begin they say, ft The Attorney General 
 " said very true ; these aggressors have certainly not been 
 " dealt with as Buonaparte would have treated his re- 
 '* fractory troops." And in fact, all that follows is a con- 
 trast in favour of Buonaparte, and the mercy exhibited 
 by him to his troops, and the tyranny exercised towards 
 the soldiers of this country. They say, " Here alone, in
 
 65 
 
 * this land of liberty, in this age of refinement, by a 
 ** people who, with their usual consistency " that seems 
 to be a fling at the consistency of the Country at large 
 " have been in the habit of reproaching their neighbours 
 '* with the cruelty of their punishments, is still inflicted a 
 '* species of torture at least as exquisite as any that was 
 " ever devised by the infernal ingenuity of the Inquisition." 
 -Is this temperate discussion ? Is this a way in which the 
 reason can act for itself? Is it not inflammatory discus- 
 sion, which overpowers the reason ? They go on " No, as 
 ' the Attorney General justly says, Buonaparte does not 
 " treat his refractory troops in this manner. There is not 
 u a man in his ranks whose back is seamed with the 
 " lacerating cat-o'-nine tails. His soldiers have never yet 
 ** been brought up to view one of their comrades stripped 
 " naked, his limbs tied with ropes to a triangular ma- 
 (C chiue, his back torn to the bone by the merciless cutting 
 " whipcord." And so it goes on, pourtraying the cir- 
 cumstances that belong to military punishment. Then 
 they say u Let it not be supposed that we intend these 
 " remarks to excite a vague and indiscriminating senti- 
 ' ment against punishment by military law :....no ; when 
 " it is considered that discipline forms the soul of an army, 
 " without which it would at once degenerate into a mob ; 
 " when the description of persons who compose the body 
 ' of what is called an army, and the situation in which 
 " it is frequently placed, are also taken into account, it 
 ir will, we are afraid, appear but too evident, that the 
 " military code must still be kept distinct from the civil, 
 " and distinguished by greater promptitude and severity." 
 Then it is admitted that there must be a greater degree of 
 severity ; and the question is only, whether it should be of 
 this description, or death; a#id if it be a temperate discussion, 
 
 K
 
 66 
 
 there could be no question more proper for consideration. 
 But you will collect the motive from the fairness of the 
 statement. If it is a fair balance of , the account between 
 Buonaparte and us, you may be inclined to think it 
 was not written with a bad motive. *' Buonaparte is no 
 ' favourite of ours, God wot!" 1 do not know what that 
 means " But if we come to balance accounts with him 
 **. on this particular head, let us see how matters will stand. 
 " He recruits his ranks by force, so do we." Is that fair ? 
 What is the mode by which the Army is recruited in this 
 Country ? The Regular Army is not recruited by force. 
 The Militia is only that service which every man is liable to 
 by the common law of the land. Antecedently to the for- 
 mation of a regular army, every man was obliged to stand 
 forth for the defence of the Country. The duty which was 
 performed formerly under a Commission of Array, has 
 since, by the establishment of the Militia laws, been thrown 
 on the more capable ; and persons, with certain exceptions, 
 are balloted for. They learn for a limited time the mili- 
 tary exercise; and are subject, during that period, to the 
 provisions which are familiar to you. The Local Militia is 
 a service of the same nature, but for a shorter time. This 
 is the sort of force we resort to ; a general ballot. 
 
 Every man who is at all acquainted with the history of 
 the two countries, knows that nothing can equal the rigour 
 with which men of every rank and station arc treated in 
 Franco. There they are all drawn out, and forced to serve 
 how ? in defence of their own land ? no ; they may be 
 carried to Spain, to be opposed to the British troops, and 
 he made the instruments of the most ambitious man that in 
 tlicbc times has been created. But it does not end there, 
 it is not the mere individual any relative, who endeavours 
 lo withdraw him, is liable to punishments of such horror,
 
 67 
 
 that any one who reads the code of Conscription, will say it 
 exceeds every thing in the shape of a rule of law. The 
 parents are doomed to linger out their lives in the gallies, 
 or imprisonment. It is a matter of general history that the 
 military system in France is of the most cruel and malignant 
 infliction Is the balance of the account then stated fairly ? 
 " He recruits his ranks by force so do we." Is there any 
 parallel between his force, and the mere balloting for the 
 Militia ? for that is the only instance of force which applies 
 to the defence of our land. Then the writer says, " We flog 
 " those whom we have forced he does not. It may be said, 
 " he punishes them in some manner that is very true. He 
 M imprisons his refractory troops, occasionally in chains, 
 " and in aggravated cases he puts them to death : but any 
 " of these severities is preferable to tying a human creature 
 u up and cutting his flesh to pieces with whipcord." 
 
 Then he goes into an irritating detail of the miseries 
 which do arise from this punishment, and which do harrow 
 up the feelings of men who consider them in detail. It 
 is an evil that has subsisted in the eyes of the Legislature, 
 and of that honourable body who constitute the Officers of 
 the Army, and it has not been remedied. If there are persons 
 who really feel for the private soldier, why not endeavour 
 to remedy the evil by private representation ? But when, 
 as at this moment, every thing depends on the zeal and 
 fidelity of the soldier, can you conceive that the exhibition 
 of the words ONE THOUSAND LASHES, with strokes 
 underneath to attract attention, could be for any other purpose 
 than to excited is affection ? Could it have any other tendency 
 than that of preventing men from entering into the Army ? 
 If you feel it is of that inflammatory nature, it is for you to 
 say, whether you can do otherwise than consider it as a 
 means to promote the end it is calculated to produce?
 
 1 hope, if it is an effort of this sort, and that its object is to 
 discourage the soldiery, it will be unavailing. These men, 
 who are represented as being treated ignominiously, have 
 presented a front, and successfully, to every enemy against 
 which they have been opposed. 
 
 I do not carry your minds to any particular army ; but 
 on what occasion do you find the soldiery of Great Britain 
 unmanned by the effect of our military code ? If it be ex- 
 pedient to change it, we hope and trust that those who oc- 
 cupy places in the Legislature, or places of trust, will pay 
 attention to the subject. This publication is not to draw 
 their attention to it, if the evil be remediable ; but seems in- 
 tended to attract the attention of the military, and to in- 
 duce them io consider themselves as more degraded than 
 any other soldiers in the world to make them more re- 
 luctant soldiers, and less ready to serve us at this awful 
 crisis, and render the country that assistance without whicii 
 we are collectively and individually undone. I leave you 
 to say, coupling the context with this balance of account 
 between Buonaparte and us, whether this publication has 
 not a tendency to produce the mischief ascribed to it. 
 
 Gentlemen, it is generally expected that, under the sug- 
 gestion of the act of parliament it is not peremptory on 
 me, but it is generally expected that I should state my 
 opinion : I have no doubt that this libel has been published 
 with the intention imputed to it; and that it is entitled to 
 the character which is given to it in the Information. 
 
 The Jury withdrew, and after remaining in consultation 
 Two Hours, returned a verdict bj r which they found botii 
 the Defendants NOT GUILTY. 
 
 frialei by J. Vrakard, Sfeu>u>r<l 
 
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