Star. — London, England, 1811-02-25 00:00:00

^11171" „ tis; it is not by the writings of Sir R. Wilson only, that I. defendtheopinions ofthepeper beforeme: Ihaveothers on the same side.; but I shall only mention one more,. that i f Brigadier-General Stuart; the object of whose publication (dated 1806) is to sheW the defects in our present - military establishment, -and to liege the ne cessity of its refarm. " Without a radical change, (he says), the British army will never continue firs midable abroad, and respected at home '." and he the h mentions the same defects which.impointed out by Sir Robert Wilson. He, too, has recant-se to that topic, which it seems no man can write upon without adverting to the system of France. The French soldiers, he says, are often, shot; but sel- Sem punished corporally; and in no instance have I *en discipline preserved upon truer principles. Gen tlemen, I hke not an over-proneness to in aise evesay thing Vrench; but in men who have beaten the French. there is an aelditional merit In giving their adversaries their due praise; it adds the grace of liberality to the value of truth ; it shews them to be above little petty, paltry feuds, said that their way of fighting their ene mieeis in the field, and not by upbraiding. This gallant General ha% seen other service; he has served with Atistriani, Rnssians, and Swedes; but in no service did he see discipline preserved on truer prin ciples than in the French. Do I mean, gentlemen, to :ergue from all this, that because these gallant-offi cers have done improperly, the defendants have a ' right to do so too ? Do I know so little of your un derstandings, or have I so little regard for the inter ruptions of the tenured Judge, as to offer the absurd, the insane proposition, that the fault of one man ex. • cases that of another ? Did I bring forward one libel to screen another, that circumstance would be only an aggravation of the'offence. No, Gentlemen, I pious the wordi of these gallant officers to you, be cause you and 1 must bold them incapable of sowing dissensions among their men, or deterring others from enterjng the army. Of all men in the country, there were no two whe more eminently adorned their pro. fission, or were more enthusiatically fond of it; and there cannot be a netural pretext for charging them with a libellous intention in the publication of their tespective pamphlets; and it is, therefore, I :argue, (with great submission to his Lordship) that if these gallant of/leers could publish what they had published • without any libellous intention, the mere fact of the publication of my clime,: paper is no evidence of a libellous intention. With this statement of my argu ment, I shall now proceed to the consideration of the *fledged libel itself. Upon its first-motto, I shall not detain you long. Nothing surely can be made of a fashion, which has been the commonest device of an author, at least from the time of the Spectator ; and it surely is too much, because a quotation is nude from the Attorney-General's speech upon a former trial, to implicate the quoter in the libel of which that was the trial. In case, then, it should be said that tha present writer proceeded upbn no facts, be collects a body of such facts, and places theth at the bead of his argument, as so much the stronger ground for agitating the question. It had been endugh for his argument to have said, that " Corporal Curtis was sentenced to receive one thousand lashes ;" but he fairly adds," but, after receiving two hieldred, was permitted to volunteer on foreign service' ;" aed in the same spirit of candour, he states that the offence of William Clifford was that of " repeatedly striking ho 4 kicking his superior officer." It is thee thyough the aiticls, be qualifies and guards his expressions, in ,jhe true temper of an impartial arguer. After some warm and vehement writing on the subject of these floggings, equally want with that of Sir Robert Wil ion, (and who should say that a writer, feeling learmly, was not to express himself so ?), he is afraid that his waders may be led into the mistake, into which it seems the Attorney General has actually fallen, and therefore cautious them lest they should suppose he was too generally fond of French systems. (The Learned Counsel then read the beginning of the second paragraph of the libel.) It has been objected, that the writer has not sufficiently guarded his mili tary rea3er (supposing him to have one) from an idea that there was no difference between the English and the French military codes ; but the writer ex pressly states that " Bonaparte imprisons his refrac tpry tints, occasionally in chains ; and in aggrava ted cases he puts them to death." Is this not stating both sides laid) , ? Is this keeping out of sight the severities of Bonaparte ? Had the writer any reason ro mention the French punishments ? But though the conduct, of his argument does not demand • it, 'he admitsthat Bonaparte punishes with chains and death. Many of our first statesmen, on the agitation of the question, have maintained • that the, punishment of, death should supersede that of flogging in our army ; and it is not out of comp fission to the soldier, that the, argument in the paper.before me is held, as much as to _say to him, " Mutiny ! that's -right 1 You are liable to have your back tortured, and your revolt is justifiable !" The argument is, that the punishment (1' death is less horrible and disgraceful than that of whipping ; and the writer's address to the soldier is, " don't think you are to get off for your offences ; . my notion is, that instead of being flogged, you should be chained for life, or put at once to death." The writer's tenderness was exercised towards the military character in general, and not to the soldier hi parti. cular ; and, instead of exciting them to mutiny, he addressed them in the language of severity ; he was aware of the strictness necessary in military discipline, and where others would flog, be would shoot the sul dier. 44 We despise and detest those who could tell us, that there is as much liberty now enjoyed in - France, as there is left in this country." Is this the language of him who would fix the eye of blame only upon what happens at home ? The whole gist of the argument is, that the French discipline being superior to ours, as Sir Robert Wilson and General Stuart had testified it Was, we ought to suffer ourselves in that particular to .be taught even by our enemies. The topic of comparison with me French, delicate as it is, was necessary to his argument, which could not be Conducted withont it. At the same time he guards his reader against any erroneous impression which the preference he was compelled to give in this compan ion might make upon him.; and I pray you, gentle men, not to be led away by any appearance of warmth or violence, with which his remarks May be made.— He might have made these remarks without the qua lification which he has annexed to them, and yet I, should not have been afraid of his defence; he his renalified them, and /is defence is sure. The points be has urged, be Ind atint to Kees unless free &is. • • sa sii , ' , • .. . , etlts l ain Mean $ free eloiee 'of toplbs, hit it fetkerect '1111: weenie/ to stew din there was fib superiority in 1 used t he m—a' selection of subject, but a rtsstrictiob his system over us. But if such w a s A b e case, he • • lot haignage: . lf-there is 6ne subject upon whiel we hoped and trusted those whose duty it .was to cortil maybe allowed to think more strongly than another, der such a question, would apply their minds.to it. di. lit is the present ; and every body above the level of a ligently and siocerely. He could not suppose that it• stock or a stone will setae in proportion to his feelings could be the meaning or expectation of the Writer of on this subject. If he have not the pewee to. do this, , such a publication as ihepresentio produce such,ari ef to what is the privilege of discussion reduced ? To feet. The only use of the publication, therefore, must something like a free selection, of what another pre- be to point out ter the Military how much more they scribes—to a rule eaten upsavith exceptions ; and he were degraded than the military of any other Power, who tells you you have the privilege, has either a , and, of course, to cause their disaffection, on whose small .acquaintance with the language, or a slight ! services if we could not at present depend, collectively regard to truth. The present writer has stated and as a people, we were undone. If, in the opinion facts i—a system itself is impeached, and it is part . of the Jury, this was the tendency of the publication, of his ate:mint that that system leads to unavoi- I they must find the Defendants Guilty. His Lordship dable cruelty, and cruelty which cannot fail to be I confessed that this was the impression on his mind. exercised, He who has a right to hold this opinion,l The Jury after consulting for some time , ret i r e d , has a duty to commtmicate it ; and as fur the fear and, when they had been out for three quarters of an of exciting mutiny in the soldierS,. it is idle and chi- • hour, sent into Court, desiring to have perm issi o n to snorkel. But laying out of your view , Gentle- ' peruse the newspaper containing the libel in question. men, my former argument and the high authori- This was ordered to be sent to them, and, after an ab ties upon which I grounded, namely, that evil in- sence of two hours in the whole, they returned with a tendon was no more imputable to my clients, than , verdict, finding both Defendants—Nor GUILTY. to the gallantofficers I have quoted to you, is there i THELWALL V. BLADE.. any. visible limit to the Attorney General's argu- I Thiswasan action brought by Mr. Thelwall,the pro rnent ? .Is there any safe subject for discussion, if we '• fesspr of elocution, against the keeper of the Argyle are tokie told that our arguments tend to excite . re-,' street Theatre, and several of the subscribers to an en volt ? What .are the most common of all political I tertainment of music and recitations held there s for an subjects ? Taxes, wars, and expeditious. If I object ! assault. It appeared, that the. plaintiff was standing Ito the imposition of taxes, the Attorney-General says during the performance of a song, in a place where Ito me, 0 whit are you about ? You ar.: exciting a, be had no right to be; and that upon being told to ! resistance of the imposts of your country. Can any I remove, he replied, that be was a subscriber, although thing be more dangerous ?" If I were to complaie .he was only a possessor of a third part.of a subscriber's ! that nue expeditions.assua.meniee to perish, not by the I ticket. One of the defendants, not being able to find sword of the enemy, but by the yellow fever ; not by his name in the subscriber's book, told him he WAS the cannon, but by the pestilence of Walcheren, would none ; and upon the plaintiff's persistence, a great any body dream that my intention was to excite mu- disturbance ensued, during which he was told that he tiny ? Must an Englishman have the privilege of came there only to seek an opportunity of making a Parliament before he can discuss public measures ?--. speech, and he was ultimately turned out of the the. I Was such a thought ever entertained ? I shall only , etre by force. The Jury found a verdict for the plain t advert to one other subject • I mean, the eloquent `tiff, damages , e 1 0; upon w h ich Mr. Thelwall him efforts which were made on behalf of the West India i self began to address the Court, but was immediately slaves. Could there be a mote delicate subject than ; silenced by Lord Etatesonoucit. • that, or one which required to be more cautiously - THE KING v. HOENE. handled ? Were not all the masterly speeches of Mr. This was a criminal information against a book- Pitt on that subject, pictures of horrors from beginning seller in Market-street, who was the publisher of a to end ; and did any one impute a wish to excite in- libellous Pamphlet. The case was opened very briefly surrection in him, although he was addressing islands by the Attorney-General, on the part of the Crown ; peopled with blacks ? 1 his privilege, if it is good and copious extracts were read from the Pamphlet for any thing, is good for all; and I have a right to itself. The principal designs of this publication, discuss any subject. But is there no danger of mutiny which had very little merit as a composition, was to Ito be apprehended from the infliction of these military set forth the evils of most existing formi of Govern. floggings, in the sight and hearing of thousands of meat ; and of this country in particular, and the ab ! 'Others and peasantry, although the danger which surdity of the . Crown's descending hereditarily ; and the mere narrative of them is to produce be great ? to state that the Monarch was only a Trustee for the Is this fund of peasantry, out of which your future, people, and removeable at their pleasure. The people soldiers are to be drawn, to hear with their own ears, being at all times justifiable in what the author termed and see with their own eyes, the horrors of a military " Lawful Insurrection," to accomplish such purpose. flogging, without thinking twice before they enter this No defence being set up, the Learned Judge de army ? All this is a chimerical fear; let their eyes elated, that, in his opinion, the work was decidedly feast on the sight, let their ears be glutted with the of a libellous nature ; and the defendant was inune sound ; all is safe, there is no fear of their being mov- " diately found—Guilty. ed ; but have a care how you describe or comment It was understood, that he was to defend his own upon all this (.... have scarcely and very inadequately cause ; but he did not appear. done either the one or the other) ; but of all things rtnnuanv 21.—W1LSON AND OTHERS V. BALFOUR, ESQ. i take care bow you argue on the policy of this sys- The Arroasier-Geweeat stated, that this was an tem ; for a single word of argument will occasion action of troves, brought by the Assignees of Messrs. those troops to revolt and that peasantry to turn their ! bevaynes and Co. Bankrupts, for detaining certain attention to some other way of life, who saw and , bonds ; and the question was, Whether these bonds heard a military flogging with the coolest satisfaction. I were the property of Messrs. Devaynes and Co. at Gentlemen, I have one, the whole case is before you i , the time of the Commission of Bankruptcy, as they and you will now decide, whether an Englishman has undoubtedly were at a time previous to that Corn anylonger theprivilegeof discussing public measures?" : missiou; or of the defendant, whose bankers Messrs. Mr. Bisouattam would not trouble his Lordship, or Devaynes and Co. were. The defendant had en- Sir ltobertWiLcon, with ony evidence; and i trusted Messrs. Devaynes and Co. with the receipt Mr. ATTORNEY-GENERAL replied at some lengi t li, of the interest of 416,500 Navy 5 per Cent. Stock, bestowing merited praise on the ability and eloquence , which stood in their names, but was the absolute with which Mr. Broligh im had managed his client's property of the defendant; and on the 19th, 20th, defence, but still insisting on the aggravated nature and 21st of July, the banking house becoming of the publication in question. : somewhat embarrassed, Mr. Noble, a partner in the Lord Esaeanououtat informed the Jury, that it ! house, sold out the whole of the defendant's stock, Was for them to say if the publication in question was ans 4 applied it to the use of the house. 'At the same of the tendency ascribed to it in the information.-- time he put the bond: in question, which were from If so, they must presume that the defendants in the Earl of Oxford and Mortimer, and Captain James publishing it, were actuated.by the intent and motive Ermson, for the amount of the stock, into a cover, to imputed to 'them. It was by comparing the different gether with the following memorandtrs : " July 91, parts of the publication together, that the Jury could 1810—Borrowed, and received dimes Balfour, Esq. best be enabled to judge of this fact. It had been which we promise to replace, and, as a collateral se stated by the Learned Gentleman, who with so great- curity for which, we have deposited the enclosed ability, eloquence and manlinessliad pleaded thecause bonds from the Earl of Oxford and Mortirner, and of the defendants, that the question for the consider- • Captain James Ermson—Devaynes and Co. :" all ation of the. Jury was, if an Englishman was to be at which were sealed up, superscribed, " the property liberty to disciiss fairly and freely any groat and im- of James Balfour, Esq." and deposited in an iron portant general system connected with the Govern-' chest at the banking-house. Nothing further was ment of this country? He said, Gots forbid it should . done till the 30th of July, the house breaking on the not. But while it was to be open to every English- 31st; on the eve of which event this packet was sent man to do so fully and freely, it must also be observed • off to the defendant, with the following note—" Sir, that he must do so decently, and with temper and " Having made use of your 'N ivy five per Cents, moderation. If he did so, it was the right and privi- ! 44 standing in our naives, we send von the enclosed . legeofevery Englislonanto discuss every topic ofpublic I " securities to indemnify yon against any loss, as we importencenot only inprivatecommunion,but through i " are tinder the necessity of suspending our pay the medium of the press. In proportion, however, to ; " meets to-morrow minting. We are, &c. Devaynes the magnitude and importance of the subject under I " and Co." Till they were certain of stopping pay discussion, it became the duty of all persons engaged 1 meat, therefore, the bankers evidently held these bonds in it to guard themselves against the violation either I under their own control, and to use as occasion might of public peace or private happiness. The law of ' serve. The law was, that a man about to become a England allowed to all its subjects the free right of I bankrupt, could give no creditor a preference: pie. discussion, but they were not to convert this liberty perty deposited in a banker's hands, such as plate and into a cloak of maliciousness. The country was now the like, was certainly safe ; so were securities for placed in an awful situation, all Europe being united money, which could not pass without the assignment against its . under a most formidable foe. It became of their owner ; but neither the defendant's stock, us, therefore, to see at such an, eventful period, that, s tanding in the banker's name, nor the bonsis which in addition to our external enemies, our opponent had l were * subject of this action, came under this de not also an ally in the press of this country. The scription ; they were in fact the property of the publications of the two gallant officers which had bankers ; and the defendant was entitled to no privi been quoted, to his idea had bettetjeen submitted to lege over the rest of the creditors. There was no dif the Ministers of the country in thr form of private Terence between the plaintiff and the defendant in the suggestions. But to those publications no improper statement of the facts ; Wails latter disputed the stages motive could be attributed. Enlistment fur life had of the bankruptcy, which, by an Act of Parliament, lately been under the consideration of the Government could on that account not be proved by the mere pro of the country, and lie had no doubt so would the sub- duction of the proceedings before the Commissioners, ject of corporal punishment, if the attention of the but must be sworn to by the witness the Attorney country was properly called to it. Suppose, however, General now called. that the subject of capital punishments were at this Mr. Howell, clerk in the bankingshouse, who said moment to be submitted to public discussion, and to treated improperly, might it not lead to the most that there had been a run tipan t he House for a fort be night before the 30th of July ; o n which afternoon dangerous consequences? The publication in clues- Mr. Noble came to the witness, and enquired into the tion did not appear to his Lordship to be a discussion state of the bank-drawer, when the witness told him he of ths. temperate nature which could alone be useful thought there was enough for that evening, it being during such a time of publi c a n x i e ty. The line •of th en f ou r o'clock. Mr. Noble told the witness to pay comparison drawn between our soldiers and the sot. that evening, but that the house must stop in the morn diers of Bonaparte was, in m an y res pects, false and ing. The:clerks, he added, would all be there ; but nnfounded. If our system of Military Law. was in- that the partners would retire at nine o'clock, for scar f i eri t ha or ppen in every e ti rr at re o s n pe e c v t er to y t ha t accui of on ou w r b e: n emy, how did of being arrested. The next m ornin g Mr. Noble and our army cameo rvic taci front aas t had Mr. Barwick, another partner , were there accordin g ly beep opposed to his, before 9 o'clock; at which time they retired to separate apartments In the bankinft -h(ittst.,d,n;rtag. it 1 I , t,e c.ereF'n deny them, which they da Mr.Croft..anetlier pato • e did not come to the house that day, ,n t s h y,eh;l nest l s. 1n 1 1 , 1 ei l e n p i:, ,.. vionsly in the Habit of doing; hot, that of the Ist of August, these three partner s v. ere i i there, and repeated their directions tothe clerks t:iec • , them all. Several persona applied ft 4. men, ytot . : amount of several thousand poonds,and v. ere denied e. Mr, Dawes, the remaining partner, had been out ( f town upon an occasional absence, as he was used to be ' for some days before; and him the IVitnesS had newe seen at the banking-house from that day to the e Ti ~ witness read a letter from him, directed to tae cici t '.., on the mottling of the Ist of August, saying. that Lv. ing Leann, on his return to town, that the house let 1 stopped payment, he should not appear again, and el. recting the clerks to say he had gone into the coaairy. they did not know where. The partners all ann.% t 1 of the denial to the creditors. Upon his ceoss e csamiee_ tion, this witness said that he never saw the ee e e l ere containing the bonds in the house of Messrs. Devaynes and Co. and did not know the house was about to still till the evening before it did. Upon his re-examiee , tion, however, he said he knew of the embarrassmentO of the house et fortnight before ; but he was ignorant of what private funds the partners Might have to pro. cure them a solvency. . I Mr. Noble said, that henerer communicatecrtrjthe idefendant the sale of his stock till tile :",f)th, althugh :he really sold it on the 19th, 20t41, 4nd V.lst cf . Jule. When he sent the defendant the bonds, the house le;e I resolved to stop.. He proved the ietter if the Nell ; he enclossd, directed, and: .e the bonds and n::•. moranduen on the ?Ist, tle:Vehftieg:4.e •sele '.... in ~e iron ehest along with the securities of his ntl.ea ray,.'- : mere. This circumstance was not,known to env l e , e , but biniself, but the partners mighthave seen the e:- Imeted packet in the iron chest.. He. meant the hor,ts as a collateral security for the deferedltnt's stack. The paper inclosed in the packet was written on the 'elst, the day of its date. Till the.:l9th July, he had no idea of the house stopping payment; and alien he put the bonds into the chest, had not the inest distant idea of the house's insolvency. It was no unusual thing for the banking-house to use the Exchequer-bills belonging to its customers, even in the lifetime of Mr. Devaynes. . . Upon his re-examination by the Arronete-Cave. RAL, the witness allowed that he did not convert the stock to the use of die housCtill it was distressed. — The house failed in consequence of some h :uses a Liverpool not plying it what they owed it, and in consequence of the falling due of several heavy bills at that time. The houses at Liverpool failed since. The wimees also admitted that his partners must have known from whence the money came which was the produce of the defendant's stock. Q. This navy stock was Mr. Balfnur's ? A. It was.—Q. You had there fore no right to dispose of it ?A. No.—Q. You were therefore guilty of a breath of trust towards Mr. BAL. four? A.l was.—Q. Had you notes much power to convey away lite bonds as the stock ? A. I had. - Q. I take it for granted you meant to replace the stock, had not your house failed,and then Mr. Balfour would have known nothing about the bonds ? A. Just so. The defendant admitted the plaintiffs demanding the bonds, and the refusal to deliver them. Mr. PARK now asked Lord Ellenborongh if he were of opinion that sufficient bankruptcy was proved , against Messrs. 'Dawes and Crofts ? • his Lordship /thought it was; and the Learned Counsel then said, that the remaining question was solely far his L , rd. ship's decision. The defendant did not rest his eve upon the letter contemplating the bankruptcy, hut upon the memorandum wrhten before any idea , I bankruptcy was entertained, and deposited with tle bonds in thearon chest. He submitted that from the instant the defendant acquired au equitable lien in ti i bonds. Lord ELLENBonorcH — Tien means a right to 11 , 1 J, The bankers had deposited these bonds only wit; themselves, and net transferred them to the defendant It was merely their intention to transfer them to him. If the Learned Counsel would show his Lordship an 7 case wherein it was construed that an intention dc, picted upon paper, amounted to an actual deed, he would gladly listen to it. Mr. PARK submitted, that in point of law the ban. kers had ear-marked the bonds as the property of the defendant, for whom they were agents. • Lord ELLENROROUGH said, that the banker ' ::C' was not that of agents, it was a contravention of ft :! agency ; ' 'they were sarong-deters from the nu.n:v: they sold out the stock. His Lordship attended :• :•:- ` 1 cularly to the evidence, to see if the deposieng e.,: 1 bonds was a matter of notoriety—and it appeared •,.‘.....t it was not so even to the clerks of the house. If ti e bankers had replaced the stock, the bonds would Ilse.: have gone to the defendant. This was his Loid,i ei- ' opinion in point of law, and according to this (Ili ri( he should direct the Jury. The hardship upon t'e defendant was great—and considering the laree: ~ of the sum, the defendant might well be jueiti-1 taking the opinion of the whole Court ag:iin, upc. e motion for a new trial. 14isetwerdstWp Chen cearged the Jury to this aiet. lie would not speak hardly of an act to whicil e e were driven by distress who were once in piteile ous circumstances ; but the fact was, the beaker s 114 d sold out stock standing in their names, which den 11.:e. no authority to sell. Had the bonds, which had ! , cc2 deposited as a security for the loss the defendant c' - pericnced by this sale, been actually handed over :..., the defendant, they would have been his, are le.' would have been privy to the converei,ei, ts! e!1 1 the case was, was untruly called a lositi—e bi,ri. , tv. ,: and received of Mr. Bellour”—for a bon cis% er int. plieJ a lender, which the defendant was not. '0 -,.• sending him the bonds only after the bankers kiew of their insolvent* appeared to amount to a triii,i I lea preference; the aeproprietien of these le o:e to the defendant, at the time of converting., his seek ve , e merely suppositious, and arose from a false siateneee of the fact by the paper which accompanied the ai-- propriation ; it might have been an idea of ~r p reorie. acing them to the defendant floating in the whet i 1 the banker, but it was no appropriation. limo . s the defendant's loss was to he lamented the pla:titills., the assignees of the bankers, must recover the bond:- Verdict for the plaintiffs. • RIA.RRIED. On the ftSd instant, at St. Mary's, Ipsm:ch, J. T. Wra:i.i v Fsq. of Tentrotteo , ttreet, Hanover-square, to Itobvll3, ch. .. daughter of the late Rev. With:nt 'rood, rd H:vrrill. _V LONDON: Printed and I eiss, Nu. 1, (Am •;üblisheil by r: T. at tie 6r' ttreet, aud at tbt ULce, Tomple-13: • • . e r 1 re es ro. the ; sza- • i Pie !Ist, l no n he aunt snal tills t of eV r.. t the r.t 1.1 in bills since. have t the stock hem- Wert? vent° I -Q. so. nding were ,• roved ' •dship L r, hut leaf th tLr n that in tl:e )11-Id. • wit:r ndant. o him. lip any on dc- rd, he le bari. of titt • :tC 4 11-... T t. I •,• mg- •.: If t. n • 1 n".••.: .1 •l Tii•u••