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
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,
etltslain Mean $ free eloiee 'of toplbs, hit it fetkerect '1111: weenie/ to stew din there was fib superiority in
1 used them—a' selection of subject, but a rtsstrictiob his system over us. But if such was Abe 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, retired,
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 permission 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 theresfor 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 10; upon which 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 lengitli, 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, standing 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 the House for a fort-
be night before the 30th of July ; on 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 public anxiety. The line •of then four 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 many respects, 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
fierit
haorppenin every etirratreosnpeecvtertoy thataccui ofonouwrbe:nemy, how did of being arrested. The next morning Mr. Noble and
our army
cameo rvictacifrontaas thad Mr. Barwick, another partner, were there accordingly
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 tsh
y,eh;l nest l s.
1n
11,1eilenpi:,,..
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 thee Ti ~
witness read a letter from him, directed to tae cicit'..,
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 ceossecsamiee_
tion, this witness said that he never saw the eeeelere
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 le ,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 ~rpreorie.
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
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