66 66 any of these tr barbarity), is the military character so degraded. We have 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 of fia"gellation in their faces. This brought so forcibly to their minds their former "state of servitude and disgrace, that every honourable impulse at once for"sook their bosoms, and they betook "themselves to flight and to howling. "We entertain no anxiety about the "character of our countrymen in Por them to death. But puts 66 severities is preferable to tying a "human creature up like a dog, and cutting his flesh to pieces with whip"cord. Who would not go to prison "for two years," [as Buonaparté sent his military offenders, the Attorney-General supposed]" or indeed for almost any term, rather than bear the exqui66 site, the almost insupportable torment, occasioned by the infliction of ་་ seven hundred or a thousand lashes? "Death is mercy compared with such "sufferings. Besides, what is a man 66 good for after he has had the cat-o'"ine-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, it is "stated, had been severely punished in some regiment. The probability is, "that to this odious, ignominious flogging, may be traced his sad end; and "it cannot be doubted that he found "the gallows less cruel than the hal"berts. Surely, then, the Attorney"General ought not to stroke his chin "with such complacency, when he re"fers to the manner in which Buona(c parté treats his soldiers. We despise "and detest those who would tell us "that there is as much liberty now en"joyed 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 impos"sible that we should sink into the ab"ject slavery in which the French peo"ple are plunged. But although we "do not envy the general condition of Buonaparte' subjects, we really (and we speak the honest conviction of our "hearts) see nothing peculiarly pitiable "in the lot of his soldiers when com"pared with that of our own. Were we "called upon to make our election be"tween the services, the whipcord would at once decide us.-No advantage "whatever can compensate for, or ren"der 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 situation of "a British soldier pleasant to himself, 66 or desirable, far less honourable, in "the estimation of others, while the "whip is held over his head-and over "his bead alone, for in no country in "Europe (with the exception, perhaps, "of Russia, which is yet in a state of tugal, 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 dispatch against "them a few hundred drummers, each "brandishing a cat-o'-nine-tails.". - If there were to be made any alteration in our military code, it must be by increasing the number of those offences punishable by death; and if a proposal were made to this effect, the AttorneyGeneral should like to know in what terms of severity the writer of this libel would attack the proposer of such a measure. The writer struck his balance between the supposed hardships of our army and the real ones of Buonaparte's, and gave the final preference to the Corsican. Could the jury hear this without indignation? Was it possible not to see that the tendency of the libel was to alienate the soldier's love of his profession, and disincline every body else from embracing it? Could any thing be more pointedly mischievous? The whole libel was equally offensive: every sentence had the same tendency. Of this tendency there could be no doubt; and the jury would therefore hear from his lordship that this was a most mischievous and seditious libel. Mr. Brougham then addressed the court and the jury on behalf of the defendants, to the following effect:-" In rising to support the cause of these defendants, I am abundantly sensible of the difficulties under which I labour, not merely on the score of unequal talents and learning, or on account of the high influence of the office of the AttorneyGeneral; not merely because I am defending the cause of those prosecuted by the crown, a circumstance which throws an odium opon defendants, in whose favour, in civil prosecutions, the presumption is; but because this charge of libél is brought forward at a time when the licentiousness of the press has reached a height, which it certainly has not attained at any formier time even in this country; a licentiousness, whereby every boundary is removed, and every obstacle overwhelmed. I will not say that no character is so exalted, because it is not of the attacks upon exalted characters that I complain; but I will say, that no character is so humble and so private, as to have escaped the libels of those who seek to gratify an idle curiosity, or to flatter a still less excusable malignity. To point out as an object for the tongue of slander the man who is endeavouring to enter into private life, is with some the road to popularity--with hundreds the means of a base subsistence. It is unnecessary for me to state the nature, consequences, and grounds of this licentiousness of the press; and I am far from saying there is nothing to extenuate it. It arises in a great degree from that love of publicity with which many are seized, to a degree which leads them to value their existence only in proportion as it is passed before the gaze of the world, and to care not what they do, so as they be but talked of. In this particular the public at least are liberal, and never fail to reward him who panders to their gluttonous appetite. The consequences, however, are fatal to the press itself, tending to alienate the minds of the fastest friends to its freedom, and to lead them to doubt whether its abuse were not greater than its use; till at last, instead of blessing its light, they come to consider it as a source of certain mischief and of doubtful good. Instead of confining public discussion to the characters of great men, and of public actions, the press is occupied in private scandal, and in ripping up the secret histories of humble individuals. It is no small hardship in the present case, too, that the defendants come into court after the judgment of several general libels; because, the subject of the libel being only stated, it is natural to conclude, that this is of the same species with that of which Mr. Cobbett, or Mr. Any-body-else has been convicted. The Attorney General has endeavoured, indeed, to draw a parallel between this case and that of Mr. Cobbett, in which it is unnecessary to follow him; for I trust I shall not proceed far before I shall have convinced you that the light is not more different from darkness than the present case is from all and each of those that preceded it. The conse quence, however, of all these prejudices is excessively hurtful to my case; and, indeed, I have to withstand a tide and torrent of prejudice directed now-a-days to almost every thing which comes in the suspicious shape of being printed.-But I should not have counselled the present defendants to make a struggle to-day, unless their case had merits of an individual nature, and of such a nature as will, I trust, induce the court to stretch forth their friendly hand to prevent them from utterly sinking. If I can shew that the intention of the defendants was good (whether it were laudable or not is another question,) then are they innocent and not blameable. In whatever light the composition may be considered critically, and as a piece of writing, although it be not an original article belonging to the paper, I am content to consider the defendants on the footing of its authors; and if you should not attribute guilty intentions to them as its composers, it will be your duty to acquit them. This will be the question you will have to decide; but at the same time, I will not disguise to you that you have now to try a more important question-whether from this time an Enlishman shall have the privilege of free discussion, and, if discussion, of expres sion of his opinions against, as well as for any political measure, or statistical system. The present is not an instance of the canvass of individual character, of a particular error of policy, or abuse of system; (I do not deny that an Englishman has that privilege of discussion, too; but that is not now the question ;) the present question is as to his right of discussing a general, I had almost said, an abstract, question,-of giving his own opinion as to a particular cast of policy, which it has pleased the legislature to adopt. It is a question whether we have a right to endeavour to make that perfect, which we all so greatly admire; the constitution of our army; it is a question, whether a man, vehemently anxious for the glory of the army, may promote the good of the service, by shewing wherein its system is hurtful, and by pointing out those flaws which prevent its attainment of a greater degree of perfection. Upon the soldier's feelings of honour depend the safety of these kingdoms; and, with this consideration before him, is not that man the benefac any such intention to him. This is the language of free discussion, and the gallant writer speaks warmly because he thinks strongly. Honour is the nature of the tenure by which the soldier holds his sword; and upon the subject of military punishinents, the writer enters at once in language certainly not weaker than that of the publication before you. "The second and equally strong check "military enlistment," says he, "is the "frequency of military punishment.""The late Sir R. Abercrombie," he adds in a note, 66 was an enemy to it for light "offences; and Lord Moira, and almost every general in the service, are uni"versal enemies to it." And how is there any chance of subverting the system, unless, by facts and reasoning, the country and the legislature are convinced of its error? Sir R. Wilson does not represent a picture of military punishment, too frightful as it is for patient examination; but he does say that there is no mode so disgraceful as that of punishment by flogging, and more inconsistent with the military character; and is justly severe when he sees that punishment, which should be awarded only to crimes of the blackest die, inflicted upon petty breaches of the military law. He attributes his early respect for the army to the circumstance of his having been educated in a regiment, in the face of which the triangles were never planted, and of which every man therefore walked erect and conscious of the dignity of a soldier. "There is no maxim," (he observes,) tor of his country who endeavours to re- more true, than that cruelty is a mark "of cowardice-humanity of bravery. "To a commanding officer possessing "the latter qualities, a thousand methods " of commuting the punishment of flog ging for a better mode of punishment "would suggest themselves." He then proceeds to say, that if a return were made of the number of soldiers punished, the astonishment of the public would be excited; and relates an instance of an Irish commander who once flogged 70 men in one day, and resumed the employment the next morning. "Corporal punishments" (he concludes) "never "reform a corps; they break the sol"dier's spirit, without mending his disposition; the cat-o'-nine-tails defeats every end of punishment, only reuder66 ing the soldier despicable in his own eyes, and the object of opprobrium in "those of others." I admit that this is a topic of delicacy; but it was the gal " 66 lant officer's duty to touch upon it, from which, as an upright man, he was not deterred by the fear of having attributed to him motives, by which he was never actuated. He afterwards remarks the melancholy truth, that military punishments subdue every amiable disposition, and familiarize gentlemen by every right of education and birth, to scenes with which no other civilized nation is acquainted. Why (he asks,) should Eng"land be the last to adopt the humane system? France allows of flogging only in her marine; and in no other country, save and except England "alone, is that system constantly re"sorted to." It is not by the writings of Sir Robert Wilson only, that I defend the opinions of the paper before me: I have others on the same side; but I shall only mention one more, that of Brigadier General Stuart, the object of whose publication (dated 1806) is to shew the defects in our present military establishment, and to urge the necessity of its reform. "Without a radical change, (he says,) the British army "will never continue formidable abroad, "and respected at home;" and he then mentions the very same defects, which are pointed out by Sir Robert Wilson. He too has recourse to that topic, which it seems no man can write upon this subject without adverting to-the system of France. The French soldiers, he says, are often shot, but seldom punished corporally; and in no service have I seen discipline preserved upon truer principles. Gentlemen, I like not an overproneness to praise every thing French : but in men who have beaten the French, there is an additional 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, and that their way of fighting their enemies is in the field, and not by upbraidings. This gallant general has seen other service; he has served with Austrians, Russians, and Swedes; but in no service did he see discipline preserved on truer principles than in the French. Do I mean, gentlemen, to argue from all this that because these gallant officers have done improperly, the defendants have a right to do so too? Do I know so little of your understandings, or have I so little regard for the interruptions of the learned judge, as to offer the absurd, the insane proposition, that the fault of one man excuses 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 quote the words of these gallant officers to you, because you and I must hold them incapable of sowing dissensions among their men, or deterring others from entering the army. Of all men in the country, there were no two who more eminently adorned their profession, or were more enthusiastically fond of it; and there cannot be a natural pretext for charging them with a libellous intention in the publication of their respective pamphlets; and it is, therefore, I argue, (with great submission to his lordship) that if these gallant officers could publish what they had published without any libellous intention, the mere fact of the publication of my client's paper is no evidence of a libellous intention. With this statement of my argument, I shall now proceed to the consideration of the alleged 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 made 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 the present writer proceeded upon no facts, he collects a body of such facts, and places them at the head of his argument, as so much the stronger ground for agitating the question. It had been enough for his argument to have said, that "Cor"poral Curtis was sentenced to receive 66 one thousand lashes;" but he fairly adds, "but, after receiving two hun"dred, was permitted to volunteer on foreign service;" and in the same spirit of candour, he states that the offence of William Clifford was that of " re 66 peatedly striking and kicking his supe"rior officer." It is thus through the article, he qualifies and guards his expressions, in the true temper of an impartial arguer. After some warm and yehement writing on the subject of these floggings, equally warm with that of Sir Robert Wilson, (and who will say the writer, feeling warmly, was not to express himself so?) he is afraid that his readers may be led into the mistake, into which it seems the Attorney-General has actually fallen, and therefore cautions them lest they should suppose he was too generally fond of French systems. [The learned counsel then read the be ginning of the second paragraph of the libel.] It has been objected, that the writer has not sufficiently guarded his military reader (supposing him to have one) from an idea that there was no difference between the English and the French military codes; but the writer expressly states that "Buonaparté im"prisons his refractory troops, occasionally in chains; and in aggravated cases he puts them to death." Is this not stating both sides fairly? Is this keeping out of sight the severities of Buonaparte? Had the writer any reason to mention the French punishments? But though the conduct of his argument does not demand it, he admits that Buonaparté 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 compassion to the soldier, that the argument in the paper before me is held, as much as to say to him, "Mutiny! that's right! You are liable to have your back tortured, and your revolt is justifiable!" The argument is, that the punishment of 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 in particular; 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 he would shoot the soldier. "We despise and detest those who would 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 Gen. 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 the French, delicate as it is, was necessary to his argument, which could not be conducted without it. At the same time be guards his reader against any erroneous impression which the preference he was compelled to give in this comparison might make upon him; and I pray you, gentlemen, 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 qualification which he has annexed to them, and yet I should not have been afraid of his defence; he hus qualified them, and his defence is sure. The points he has urged he had a right to press, unless free discussion mean a free choice of topics, but a fettered use of them, a selection of subject, but a restriction of language. If there is one subject upon which we may be allowed to think more strongly than another, it is the present; and every body above the level of a stock or a stone will write in proportion to his feelings on the subject. If he have not the power to do this, to what is the privilege of discussion reduced? To something like a free selection of what another prescribes -to a rule eaten up with exceptions; and he who tells you you have the pri vilege, has either a small acquaintance with the language, or a slight regard to truth. The present writer has stated facts; a system itself is impeached, and it is part of his argument that that system leads to unavoidable cruelty, and cruelty which cannot fail to be exercised. He who has a right to hold this opinion, has a duty to communicate it; and as for the fear of exciting mutiny in the soldiers, it is idle and chimerical. But laying out of your view, gentlemen, my former argument and the high authorities upon which I grounded, namely, that evil intention was no more imputable to my clients, than to the gallant officers I have quoted to you, is there any visible limit to the attorney-general's argument? Is there any safe subject for discussion, if we are to be told that our arguments tend to excite revolt? What are the most common of all political subjects? Taxes, wars, and expeditions. If I object to the imposition of taxes, the attorney-general says to me, "what are you about? you are exciting a resistance to the imposts of your country. Can any thing be more dangerous?" If I were to complain that our expeditions send armies to perish, not by the sword of the enemy, but by the yellow fever; not by the cannon, but by the pestilence of Walcheren, would any body dream that my intention was to excite mutiny? Must an Englishman have the privilege of parliament before he can discuss public measures? Was such a thought ever |