Commons Sitting of 18 June 1811

PETITION OF MR DRAKARD CONCERNING INFORMATIONS EX OFFICIO FOR LIBEL.
Lord Folkestone presented a Petition from Mr. John Drakard, setting forth:
"That the petitioner is proprietor, printer, and publisher of a newspaper called Drakard's Stamford News, which is published in the town of Stamford, in the county of Lincoln; and that he has recently been prosecuted by the King's Attorney General on an information, ex officio, for publishing in the said newspaper an article on Military Punishment; and the petitioner further states, that he was found guilty, at the last assizes for the county of Lincoln, of the charges laid in the information against him; and that, in consequence of his conviction, he has been sentenced to eighteen months imprisonment in the gaol for the said county, to pay a fine of 200 l. to the King, and to give security for his good behaviour for three years, himself in 400 l., and two sureties in 200 l. each; and that the petitioner, deeming himself and in his person the principles of the constitution and the security of the subject injured by the proceedings of the law officers against him, brings his complaint and prayer for redress before the House, humbly conceiving that he thereby acts in perfect conformity with the spirit of British law, according to which, the House, elected by and representing the people, is to be considered as the people's peculiar guardian and defence against abuse, from whatever quarter it may proceed; and the petitioner, in justification of the step he has taken, and prompted by a feeling of gratitude, recalls to the recollection of the House the many former instances in which the Commons of England, assembled in parliament, have interfered with effect in behalf of the liberties of the subject when endangered by proceedings in the courts of law; of which liberties it is highly provable not a vestige would at this day remain, had it been adopted as a principle that the decisions of these courts should ever be permitted to rest undisturbed; nevertheless, the petitioner begs to disavow an indention to cast any imputation on the jury by whom he was tried; he too highly venerates the right of trial by jury to question the integrity of jurymen; but the petitioner submits to the House, that, in cases of prosecution by his Majesty's Attorney General, on informa-

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tion ex officio, the peculiar disadvantages under which the defendant labours, which which arise from the practice of the courts, are so many and important, that innocence has but small chance of clearing itself; which circumstance, the petitioner humbly submits, render, it very necessary that the House should exercise a vigilance and controul over the proceedings in such cases, for otherwise the judges, who will allow no one to question or gainsay the practice of their courts, might, under cover of regulations, violate the fundamental principles of the law; and that the petitioner, therefore, without impeaching the verdict of the jury that tried him, grounds a complaint to the House on the following circumstances, connected with his prosecution by the King's Attorney General, believing them to evince a determined hostility, on the part of certain persons now in power, to the right of freely discussing the measures of government, which by law belongs to every British subject; and the petitioner prays for such redress as the House may, in its wisdom, think proper to grant, and offers to prove the truth of his several allegations whenever the House may be pleased to call upon him so to do; and that the petitioner submits to the House, that the article, for publishing which he has been convicted and punished, was, with the exception of a few sentences that in no way alter the general import of the whole, copied into another newspaper, the proprietors of which have also been prosecuted for such publication by the King's Attorney General, but have been, by a jury of their country, fully acquitted of criminality; and the petitioner declares that, after a jury had thus pronounced the article in his newspaper, for publishing which he is now in prison, to be, in all its important parts, perfectly irnocent, it was again put on its trial before another jury, who have pronounced it criminal; the petitioner submits to the House the impropriety and indecency of such a proceeding, tending, as it evidently does, to shake the confidence of the pubic on trial by jury, by opposing two juries the one against the other, and leading of necessity to the conclusion that an act of injustice has been in one case committed; and that the petitioner denies to the House what was alled ged against him on his trial, namely, that the strongest passages in his publication were omitted by: he parties who copied the greater part of it, and, as a proof of the fallacy of such a plea, sub-
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mits that the extracts were prosecuted by the King's Attorney General, as well as the original, which extracts, however, were by a jury acquitted of the guilt which the Attorney General imputed to them; and the petitioner further submits to the House, that the information filed by the Attorney General against him, did Contain, in several separate counts, the respective passages in the article prosecuted which were deemed chiefly to evince the criminal intention of the publisher; and that all these passages, so deemed highly eriminal, were extracted and published by the parties who were acquitted; and that no one passage which these parties omitted to extract and publish was included in a separate count of the information filed against the petitioner; the petitioner submits that this circumstance clearly proves that, in the estimation of the Attorney General himself, the article convicted at Lincoln contained nothing of a more dangerous nature than that which was acquitted by a jury in the court of King's-bench at Westminster; and the petitioner feels confident that the House will learn, with great concern, that the publication pronounced innocent by one jury, but for which the; petitioner is fined and imprisoned, was intended to inculcate the propriety of effecting that alteration in the military law of the land which the House has since in its wisdom effected; and it will no doubt excite the just jealousy of the House, which represents the Commons of the country, to find the King's Attorny General pursuing a severe punishment the publisher of an argument intended to pave the way for, and to recommend to the public, a measure since adopted by parliament; and the petitioner submits to the House, that no such thing as free discussion can exist if the law officers are to take advantage of the zealous manner in which a discussion may be conducted, the principle of which is to attack and expose a long-standing but generally-acknowledged abuse; and further, that whatever blame may attach to such discussion ought chiefly to fall on those persons concerned in the executive, who, by continuing the abuse, have provoked the warmth of the attack; and the House will no doubt be sensible that, in proportion as such attack is likely to be effectual, it will occasion an irritation and desire of revenge in the breasts of those concerned in the abuse; who, even if compelled to abandon it, will yet exert themselves to punish those by whom they

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have been driven to so disagreeable an expedient; and the petitioner further submit", that the uncertainties and contradictions of the law of libel, with the numerous Advantages given, by the practice of the courts, to the king's Attorney General in cases of information ex officio, furnish ample means to gratify the displeasure so entertained by persons in power, to the great injury of the subjects right of free discussion, which the House is in a peculiar manner called upon to protect; and the petitioner states to the House, that, by severely censuring the frequent infliction of the disgraceful and savage punishment of flogging, as used in the army before the late alteration in the law, he has but imitated the example of the first officers in the service, who have, in publications given by them to the world, described such punishment in glowing language, as destructive of our military strength, and injurious to our national character: These officers have deemed it their duty to enlarge on the horrible and disgusting circumstances attending military flogging, in order to raise public indignation against its continuance: they have specified particular regiments as the worst in the service, and have attributed their inferiority to flogging: they have alluded to others as the best, and have traced their preeminence to exemption from flogging: In short, they have done all that the petitioner has done, but they have not been fined and imprisoned, they have, on the contrary, been raised to the highest honours of their profession; and the petitioner appeals to the House whether it be consistent with the principles of the British constitution, that what is deemed laudable in persons of high rank shall be held criminal in one of inferior station: It was stated by the king's Attorney General to be truly laughable for the printers of newspapers to expect that the same credit should be given to their motives which was justly due to the intentions of general officers; but the House deriving its existence from the people, and of whom it has been said by a respected statesman, "the virtue, spirit, and essence of which, consists in its being the express image of the feelings of the nation," will deem itself called upon to protect the people from the effects of so unconstitutional a maxim; and the House will doubtless learn with great concern, that the judge who presided at the trial of the petitioner countenanced and supported this principle, so utterly repugnant to the
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spirit of freedom; and farther, laid it down to the jury that the measures of the government were not to be censured out of parliament; and that the petitioner, as the citizen of a free state, protests against this doctrine, as subversive of his legal rights, which he is determined to uphold at all hazards, in humble imitation of the patriots of former times, who in defiance of prosecutions and punishments, maintained those immunities which by law belong to the subject, but which by lawyers have been frequently questioned and endangered; and the petitioner recalls to the recollection of the House that those blessings which afford persons in power a subject for panegyric, have only been attained after a hard struggle with the existing authorities, and that the individuals most instrumental in attaining them have generally incurred the fate of the petitioner, by the voice of the judges; and the petitioner further submits to the House that it was falsely represented to his jury for the purpose of prejudicing their minds against him, that he had manifested an attachment to the cause and person of the enemy of his country, Napoleon Buonaparté the petitioner did, in consequence, bring forward, in an affidavit made by him in mitigation of punishment, numerous and convincing proofs to the contrary; and that the said Napoleon Buonaparté had ever been held out to abhorrence in the petitioner's newspaper, as the foe of liberty and of human happiness; and in consequence of certain other charges falsely brought against the petitioner, he further proved in his affidavit, by extracts from his newspaper, that he was warmly attached to, and had ever inculcated a high respect for the constitution of the government, including the kingly office as one of its most essential parts; and in contradiction to other calumnies urged against the petitioner to his jury, and which no doubt, had the effect of unduly prejudicing their minds against him, his counsel being by the practice of courts denied leave to refute them at the time, the petitioner further proved in his affidavit by extracts from his newspaper that he was no common libeller, that the liberty of the press had never been dishonoured in his hands, but that the discussion in his newspaper had ever been conducted in an impartial manner, according to the petitioner's sincere conviction, with regard to pecuniary profit; and the House will learn with surprise that this affidavit, containing

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passages in reprobation of the relentless despotism which now oppresses Europe, induced the judges of the court of King's Bench, when passing sentence on the petitioner, to accuse him of a new and unheard of offence, the offence of having published libels against an alien power, with whom this country is now at war; and that the House must be sensible that this charge cannot be warranted by law, and the petitioner appeals against the injustice of accusing him when on his trial of being a friend to Buonaparté, and in consequence of his refuting the calumny, charging him when brought up to be sentenced, with libelling that person: and that the House will perceive that the judges of the court of King's Bench, by accusing the petitioner of having libelled the enemy, inasmuch as he has disapproved, in strong language, of the despotic principles practised by the government of France, have declared their opinion as to what constitutes the crime of libelling, which opinion doubtless regulates the charges given by them to juries when questions of libel came before them; and the petitioner submits that this declaration contain" a sentence of death against free discussion, for if it be libelling to censure so gross a tyranny as that exercised by Buonaparté, what hope is left that we shall be permitted to expose the faults of our own government; and if we have no such permission, how can we be said to possess the right of free discussion; and the petitioner further submits to the House, that the opinions of the judges are conveyed to juries in very strong, and frequently in passionate language, which is calculated to overawe the minds of those to whom it is addressed, and that if juries shall by any means be induced to conform their verdicts to the sentiment conveyed from the bench, when the petitioner was sentenced; namely, that it is libellous to censure tyranny, even in an enemy; it is very possible that a person in the petitioner's situation shall be severely punished for rendering an essential service to his country, and to the cause of truth and virtue; and that the House will regard this possibility with extreme concern, for what effect must it have on the public mind, to know that individuals are liable to heavy fine and imprisonment for doing that which common sense, religion, and morality will justify? Yet, while the present interpretations of the law of libel are persisted in, it cannot be pretended, that
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to publish what is called a libel is, in every case, a moral crime; and that the petitioner doth instance to the House, as a proof of what he avers, the case of a person recently prosecuted by the Attorney General, on an information Ex Officio, for libel; This person was told by the present lord chief justice of the court of King's Bench, that his publication was not less calumnious, and consequently not less guilty, because it might be true: But, when brought up to receive the sentence of the court, it was declared from the bench, that, if the libel of which he stood convicted were true, it would prove the individual libelled, who was at that time a member of the administration, to be unfit to enter the presence of his sovereign, and indeed unworthy of honourable society; and that the petitioner need not point out to the House the extreme hardship of refusing an accused individual permission to prove the truth of his publication, while the absence of proof to that effect is urged against him to justify the severity of his punishment: Neither will the petitioner take up the time of the House by dwelling upon that perversion of language, and violation of moral feeling, included in pronouncing an individual guilty of crime, who has exposed in his proper character an unworthy servant of his sovereign, whose counsels are mischief, and whose presence is pollution; and the petitioner further states, that he is extremely desirous to conform to the law, as well in the management of his newspaper as in every other part of his conduct; but that the uncertainties, contradictions and absurdities of the law of libel, as explained by the judges, leave him in utter ignorance of what may or may not be safely published: Not only have different judges given different and consequently false interpretations of the law of libel, but even the same judge has differed from himself at different times; By the present lord chief justice of the court of King's Bench, it has been laid down as law, that there is no impunity to any one who shall violate individual feelings, or render the person or abilities of another ridiculous; a definition as intelligible as it is sweeping, and which at once reduces the right of discussion to A non-entity, but which cannot, by the imperfect understanding of the petitioner, be reconciled with the principle of another maxim declared by the same learned and noble judge to a jury; namely, that a cer-

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tain class of persons called authors may very safely and properly be held up to just ridicule; and that it is for the interests of society and government that their works should be fairly examined, and praise, censure, or sarcasm, applied according to their merits: The petitioner claims the benefit of this liberal principle on behalf of such discussion as applies to rulers and to governments; and he complains to the House that he has been tried and punished by a law which, instead of being plain to the meanest capacity, is involved in inconsistency and absurdity; and that the petitioner, by bringing these facts under the consideration of the House, conceives that he has acquitted himself of a duty; he entertains no feeling of impatience under his fate, being more than compensated for its hardships by the belief that his exertions have done much towards abolishing a horrible species of punishment, which disgusts the national feelings, while it disgraces the national character, which debases that army which it is intended to reform, which places man on a footing with the beast that perisheth, and converts a land of superior freedom and humanity into the last asylum for the system of torture, which has been banished from continental Europe; and that, while day by day facts are transpiring which place beyond a doubt the injurious effects of the savage punishment which the petitioner has condemned, while the most distinguished officers in the service are raising their voices against it, while the legislature is interfering to do away with it by degrees, the petitioner addresses the House from the prison to which he has been sent for engaging in the good work; he has been sentenced to undergo a heavy punishment for publishing an article, which, in all its essential parts, has been acquitted by a jury; he has been convicted under a charge of being the friend and advocate of the enemy, and he has been punished under a charge of libelling the enemy; in fine, he has been convicted of libelling, an act which may merit praise instead of punishment, and he has been tried under a law which assumes new shapes for every case, and concerning which nothing is certain but its uncertainty; and that these circumstances form the ground of the petition and complaint which the petitioner humbly prefers: and the petitioner humbly entreats the House to take the premises into their serious and favourable consideration, and
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grant him such redress as his case may admit of."
Ordered to lie upon the table.

PETITION OF MR. OLIVER AGAINST THE DIRECTORS OF THE EAST INDIA COMPANY.
Mr. Peter Moorepresented a Petition from James Oliver, esq. late a colonel in the service of the East India Company, under the presidency of Fort St. George, setting forth:
"That the petitioner entered into the service of the East India Company in the year 1769, and continued in the Madras army until the year 1800, at which last-mentioned date he gradually obtained the rank of colonel; that, during the long period of his service, an interval of thirty-six years, he had been in constant employment, and had been engaged in fourteen general actions, thirty cannonades, and was at the reduction of twenty-six forts, many of which were taken by assault; and that he was appointed to and employed from January 1802 to July 1803 in the civil and military government of the Molucca Islands in the eastern seas, captured from the Dutch; and in the year 1805, he returned to England for the benefit of his health; and that complaints against him were put forth, in a letter from the court of directors to the Madras government, bearing date the 15th of February 1804, charging principally, that, while in the civil government and military command of the Moluccas, the petitioner had been concerned in the purchase of a certain quantity of spices with an European inhabitant of the island; next, that he had an interest in a cargo of European goods sent there for sale, which had given rise to an alledged arbitrary act, on his part, preventive of the fair sale of other European articles composing the investment of the officers belonging to two of the Company's ships, and consequently prejudicial to those officers; and, lastly, that he had prematurely delivered up to the Dutch the islands entrusted to his government; and that a Committee being appointed for the purpose of investigating these matters, the said Committee assembled on the 4th day of August 1804, and proceeded to examine witnesses in support of the matters submitted to them, and continued their sittings for the space of a month and upwards, when at this latter period, and under circumstances to which considerable suspicion attaches, and notwithstanding the instruction under

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which they were bound to act, that the I accused should be acquainted, in limine, with the nature and full extent of the exceptions taken at his conduct in the premises, the government of Fort St. George sent fresh articles of accusation against the petitioner, and required the Committee to proceed thereon; and that the new criminatory matters depended solely on the assertion of an individual of the name of William Betty, and were submitted in the form of a letter forwarded to the government of Fort St. George after the writer of the said letter had been dismissed from the Company's service by the sentence of a court martial, and after he had already embarked and was on his passage; and that the Committee was detained for several weeks until the 18th day of February 1805, when the petitioner was allowed to urge certain matters in his own behalf; and about the end of the same month, the Committee made their Report to the government of Fort St. George; and that the petitioner not being suspended at the time of making such report, or being made acquainted with any proceedings intended to be instituted against him there-upon, although he had reason to apprehend that, from the direction of the court of directors in the event of such report being unfavourable, he should be suspended the service; he had consequently every reason to conclude the report was not unfavourable in its general tendency; and that a copy of the said report was respectfully, but in vain, requested by the petitioner within a reasonable time, and he being then in a state of great debility, obtained permission (after being obliged to execute certain securities), to embark for England; and that having arrived here early in September 1806, he reported his arrival to the court of directors; and having on the 1st of October following, received a notice that the said court was about to proceed to the consideration of his case, the petitioner, the better to enable himself to make his defence, made repeated applications for a copy of the aforesaid report, but without effect; and, on the 27th of November following, the said court of directors made communication in form to the petitioner, that they had dismissed him their military service; and that the determination of the court of directors has been since published to the King's and their-own army in India, stating that the petitioner was dismissed from the service of the Company for gross
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violation of trust reposed in him whilst commanding officer of the Molucca Islands: and that such dismissal does not appear to have originated from any breach of military duty, but for an offence alledged to have been committed by the petitioner in a civil capacity, as a ministerial officer of the Company, in which capacity the petitioner can clearly prove that he made a saving to his honouurable employers of 303,404 l. sterling, in the short space of eighteen months; and the measure was not sanctioned by the proceedings of a court martial: this power is submitted to the House as usurped by the East India Company, not only in direct opposition to the articles of war, but also to the subsequent statute, expressly reserving to the King the right of making rules for the government of the East India Company's armies; and that the petitioner, having been denied all access to the proceedings of the Committee of Enquiry at Madras, and to their ultimate report, and finding, from the best legal information he could obtain, that there was no process to compel the said court of directors to deliver to him the copies of the said proceedings, or the report upon which they had been founded, he addressed a memorial to the commissioners for the affairs of India, commonly denominated the Board of Controul, but was informed, through the secretary of that Board, that the commissioners had not any controul over the subject matter of his memorial; and that the petitioner therefore humbly reasserts that the court of directors of the East India Company, of the year 1806–7, have acted in contravention to the act of parliament made and provided for the better government of the Company's army in India, by dismissing him there from without a legal trial by a competent court; and that they have hereby assumed inordinate power, and deprived him of the honours and comforts to which he was justly entitled, from his many and great exertions; and praying the House to take his case into consideration, and to grant such further relief in the premises as to them shall seem fit.
Mr. Wallacesaid the court of directors had certainly a right to dismiss their servants; this gentleman was charged with having been engaged in commercial transactions while he was governor of the Molucca Islands, contrary to the rules and regulations of the Company. He had also before been dismissed for lending money

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to the native princes at the usurious interest of 36 per cent.
Mr. Astellsaid the petitioner had been repeatedly accused and convicted of offences against the rules and regulations of the Company.
Mr. P. Mooresaid he understood that during the 14 months the petitioner was governor of the Moluccas, he had reduced the Company's expences 1,140,000 dollars, and he was now in a starving state.—The Petition was ordered to lie on the table.

FRENCH PRISONERS OF WAR.
Mr. Christie, from the Transport Board, presented at the bar several papers relative to the prisoners in Dartmoor Prison.
Mr. Rosesaid these papers were presented in consequence of a noble lord (Cochrane) who he was sorry not to see then in his place, having asserted, that the prisoners confined in that prison, had died thirty and forty in a week. The fact was quite otherwise, for at no time but one, which was about two years ago, had there been any extraordinary mortality among the prisoners. That one time was in consequence of some French prisoners being sent there, who had been landed from the West Indies, and who brought over with them an infectious disorder, which was however by skilful medical practice subdued in about a fortnight, and the prisoners had ever since been remarkably healthy. It had been also asserted that there was a great deal of filth and dirt in the prison, but the reverse was the case; and there was a stream ran through the prison of as pure water as any in England.
Mr. Tyrwhittexplained some misconceptions with regard to himself that seemed to have gone abroad. He stated that the soil from the prison in question was carried off through his lands at his own expence.
Sir C. Pole,as the subject had been mentioned, hoped the House would come to some resolution expressive of their approbation of the conduct of the managers of that prison towards the French prisoners in custody there. Of 20,000 prisoners there were at this moment only 300 sick—a circumstance which merited attention and public thanks.
Mr. Rosewas afraid it might be irregular to do any thing at present more than to order the return to be laid on the table, and to be printed.
Sir P. Burdettcould not believe that his noble friend, who was not now present, would have said what he did without some ground.
Mr. Whitbreadbore testimony both to the disinterested conduct of his hon. friend, the member for Plymouth, and also to the precautions used by the managers of the prison to get rid of the infection, declaring it to be his decided opinion that there was no blame attached to any person connected with the prison.
The Papers were then ordered to lie on the table, and to be printed.

FLOGGING INTHE ARMY.
Sir F. Burdettrose to make the motion of which he had given notice, respecting corporal punishments in the army. He said, the "abject had for several years weighed and pressed upon his mind, and he at length had determined to bring it before the attention of the House; but having, from time to time, heard from several gentlemen, high in the army, that government had an intention to abolish the infamous practice of Flogging, he had been induced to withhold from making any motion, wishing rather that the measure should voluntarily flow from them, than that it should be adopted in consequence of the interference of that House. It had been said at the time of passing the Mutiny act, that a clause would be introduced, which would have the effect of abolishing this scandalous punishment by degrees; but having found from the clause in the Local Militia act that that was not the case, he thought it his duty not to loss a moment in coming down to the House, to give a notice on the subject; and he had only brought forward the case of Taylor as an instance that something was necessary to be done. Finding, however, that the case of a Local Militia-man did not perhaps sufficiently apply to the case of the general adoption of the punishment of Flogging throughout the main body of the army, he had given up that case, and thought it best to proceed on the motion which he should have the honour, before he sat down, to submit to the House, There were other reasons which urged him much to come forward with it. The press had been treated with uncommon-severity on account of mentioning the disgraceful punishment of flogging our soldiers. Very severe sentences had been passed on two public writers for having said that these degrading punishments in our army had—
Sir M. Woodspoke to order, and Was proceeding to comment on the speech of sir Francis Burdett, when
Mr. Broughamspoke to order, and said, that if the hon. baronet who spoke last was allowed to proceed in that way, he would move that the debate be adjourned.
The Speakersaid, that sir M. Wood had not shewn that the hon. baronet whom he had interrupted, was out of order; he must do that, and not comment on the hon. baronet's speech.
Sir M. Woodthen moved that the gallery be cleared.
Mr. Broughamthen gave notice that he would constantly move an adjournment so long as sir M. Wood persisted in excluding strangers.
[The gallery was then ordered to be cleared; but when most of the strangers had withdrawn they were readmitted.]
Sir F. Burdett(on our readmission into the gallery) was speaking. In the view that he took of this subject he was sanctioned by the opinions of many general officers, and persons who had eminently distinguished themselves in the service of their country. Many of those officers not only agreed with him in theory, but had proved in practice, and in the discipline of their own corps, that the system of flogging was not essential to the discipline of the English army, and that it was as unnecessary as it was cruel and disgraceful. Among the many bright examples of officers who knew how to maintain proper discipline in their regiments without flogging, he thought it would be injustice not to mention the illustrious name of his royal highness the duke of Gloucester, who far the last three years had kept his regiment in a high state of discipline without having recourse to flogging; and it appeared to him that his conduct in this respect did equal credit to his abilities as an officer, as it did to the amiable qualities of his heart. He was sorry to be obliged to state another most remarkable instance of the inefficacy of pursuing an opposite line of conduct. He must say that the 15th regiment of dragoons was a regiment long distinguished for its efficiency in the field, and for its peaceable, modest, and proper demeanour in every respect, before his royal highness the duke of Cumberland got the command of it. Until that time, punishments of this nature had seldom been known in it; and it was a melancholy fact to state, that more cruel punishments had taken place within. a very few months after the duke of Cumberland was appointed to the command, than had taken place in that re-
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giment ever since the period of the seven years' war, down to the time in which he had got the command of it. The excellent pamphlet of sir Robert Wilson upon this subject, was, as he supposed, in the hands of every member; and therefore he should content himself with stating, generally, that that gallant and distinguished officer most decidedly reprobated the system of Hogging. He understood, also, that the present Commander in Chief wished, as far was in his power, to get rid of this ignominious and cruel mode of punishment; and he must do him the justice to say, that he understood that in the management of his own regiment a very mild system of discipline had always been pursued. He thought it would be also doing injustice to the known homanity and benevolent nature of his royal highness the Prince Regent, not to suppose that he also felt alive to the sufferings of our brave Soldiers, and that he also would be anxious to free them from the degrading and cruel punishments to which they were now exposed. He therefore by no means thought the improbability of succeeding in this object so great as it appeared to many.—He would mention, also, a militia regiment which had been commanded by lord Euston, the present duke of Grafton. This regiment had long been considered as a pattern regiment, and many other officers endeavoured in vain, by the severity of punishments, to make their regiments equal to it; and yet lord Euston brought his regiment to this perfection without having recourse to flogging. The instrument called a cat-o' nine-tails was not known by the drummers of that regiment. When persons of such rank and acknowledged merit as he had mentioned, had proved by practice that the best discipline could be kept up in the army without flogging, he conceived himself entitled to state, that it would be well for the British army, in every point of view, if the example and authority of such men were generally followed. With regard to the cases that he should think it necessary to state to the House, he had derived his information from persons who were in situations that gave them the means of knowing, and of whose veracity he had no doubt. He did not think it proper to name his authorities in the first instance, although many of them had given him permission so to do. He considered that naming them now might possibly do injury to those individuals without being of any public advan-

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tage; but if the House should errant an enquiry, he would certainly bring them forward as witnesses to prove, the statements he should now make. He had been informed by a surgeon of a regiment, that a man under his care who had a defect in his sight, had literally been flogged for being blind, [murmurs from the ministerial benches.] The case was this: the surgeon who gave him the information was a young man at the time, but this soldier had been under his care, and had even undergone many painful operations for the defect of sight, which he was convinced was natural. This case, with many others, was referred to a senior surgeon, who was a hasty and careless man. His report was, that there was nothing the matter with his sight, that it was all a pretence to avoid duty, and that he was (to use a term he did not understand) a malingerer. The young surgeon finding his professional judgment thus impeached, appealed to the judgment of another surgeon of still greater practice, who coincided with him that the defect of sight was real. Nevertheless, the man was brought to a trial by Court-martial for being a malingerer, and was actually condemned, and did receive a hundred lashes. When the surgeon of superior standing afterwards told the officers that the man really had a natural defect in his sight, the answer of one of them was—'Well! what signifies a hundred lashes to a man of his description? This case he should be ready to prove if an enquiry should take place. Another instance he had to state of severity of punishment took place at Gibraltar; two men had been so harrassed and disgusted with the service, that to get rid of it they chopped off, each of them, one of their hands. Instead of gaining their object, and getting rid of the service, they first receded a severe punishment for this offence; and after they had so received their punishments, they were condemned to eke out the remainder of their lives in servile employments, and no soldier was allowed to speak to them. He must, however, ask, upon this case, what must have been the disgust which those men had received, to induce them even to cut their own hands off, and how harrassing must that service have been, which they would take such methods of endeavouring to free themselves from? There was another case of a soldier of 70 years of age, and who had served for upward of 50 years with great credit and an excellent character.
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He unfortunately got a little in liquor, and was sentenced to be flogged. In vain he stated his length of service, his never, having been before sentenced to any ignominious punishment, his wounds, and his age. The answer to him was, that his age and his length of service should have made him know better; and he was accordingly flogged. The very same day, another soldier, a young lad of 16, was condemned for some impropriety of conduct. He pleaded his youth and inexperience: but he was answered, that on that very account he must be made to learn his duty; so that youth or age, inexperience or long and faithful services, were urged equally to no purpose, as a mitigation of the severity of punishment.—The hon. bart. said, that when he was confined in the Tower, he was unfortunately an eye-witness of the-severity of the punishments that were inflicted on very old men for trivial offences, One of those whom he saw flogged had been 30 years in the army, and had received no fewer than seventeen wounds in the service of his country. It was, indeed, a most heart-rending sight to see an old man, whose breast was scarred with honourable wounds, having his back lacerated with ignominious stripes for some petty offence. He saw another old soldier flogged, who had been 27 years in the service. As to the severity and cruelty of the punishments, he could not have had an idea of it if he had not been an eye-wit" ness. Great as the corporeal suffering must be in such cases, he thought the shame and disgrace of it was still worse. There were but few persons who knew what a severe instrument of torture the cat o'nine tails was. Every lash inflicted by it was, more properly speaking, nine lashes. These were pieces of whipcord, not such as gentlemen used to their horse-whips, but each of them as thick as a quill, and knotted. This dreadful engine of torture was frequently applied by the strength of fresh men relieving each other, until human nature could bear no more suffering; and then, if pains were taken to recover the unhappy sufferer, it was only to enable him to undergo fresh agony and farther pain. What appeared to him be the most disgusting thing in the whole transaction, was the attendance of the surgeon, whose business appeared principally to detect any lingering principle of life which could enable the man to undergo more torture; and his art and knowledge, with an al-

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most impious profanation of the healing art, was exercised principally for the purpose of renewing the fatuity to bear fresh tortures. He really did not believe that in the description the poets gave of hell, there were any tortures equal to what was called a military punishment. He believed the principal part of the complaints of the soldiers, and of the reasons for which they were flogged, was, that they were often dissatisfied with the manner in which their pay and what was called necessaries were furnished. [The hon. baronet here read an extract from a work of Major James, intitled the "Regimental Companion," in support of his opinion, that such was the general cause of discontents in the army, and military punishments.] He had often thought, that if instead of nothing but punishment for offences however slight, soldiers could stand before a court-martial to determine what rewards, what honours or what increase of pay they were entitled to for gallant services, the army would get on much better. At present, the system pursued was degrading to the whole army, to the officers who ordered and witnessed the punishment, as well as to those who were condemned to endure it. The gentlemen of this country were thus exposed to witness what no other gentlemen in Europe were obliged to see. These severe punishments were not inflicted for serious offences only, but on the most trifling matters of regulation in the regiment. There was nothing so trivial, either in dress or equipment, for which a soldier might not be flogged. When the number of desertions which took place every year was considered, and the punishments which might be inflicted for such desertions, he calculated that five millions of lashes might be annually inflicted on this account; for he must always calculate every lash given with a cat-o'-nine-tails as nine lashes. We often heard of how many strokes a minute was given by a steam-engine, but the flogging system would far exceed, in this respect, any powers of the steam-engine. It was the opinion of almost every experienced officer, that no regiment, or no soldier, was ever corrected by those military punishments. The men who suffered the punishments were, in a manner, driven from their rank in existence, and afterwards appeared heart-broken, and ashamed to look their comrades in the face. The House had lately expressed its sympathy
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for the sufferings of West India slates, but there was nothing in the West Indies which could, be at all compared for cruelty, with the manner in which English soldiers were flogged. How painful it must be to their feelings when they marched against an enemy whom they knew was never flogged, to think of their own discoloured shoulders, and dishonoured carcases? It was melancholy for them to recollect, that if their bodies should be found upon the field of honour, although their breasts might be pierced with glorious wounds, their backs would exhibit the cruel marks of disgrace. It was no honour for any man to command persons liable to be flogged, as it was no honour to command galley slaves. The hon. baronet here read a letter from-sir Robert Wilson, wherein he stated, "that he had the mortification to hear a Russian minister tell the emperor, that nothing was finer than to see an English regiment on parade, but that nothing was more disgusting than to see their camp in the morning, and witness the cruel and inhuman punishments that were constantly inflicted there." Mr. Drakard, who was now suffering in Lincoln jail, had, in fact, very much libelled the Russian nation, when he stated that they had copied the barbarity of oar military punishments. British officers, however, found that they could discipline the people of other countries without resorting to the cat-o'-ninetails. The Portuguese were allowed to have arrived at great proficiency in discipline, but they were never flogged as our soldiers were. The great Frederick of Prussia once governed his army, in a great measure, by the stick of the corporal; he, however, soon found the error of his system from the number of desertions, and latterly adopted a very mild system. In this country, the system of cruelty and torture had been introduced, principally with the view of Germanizing our soldiers; but the Gorman soldiers in our pay were quite astonished at this mode of discipline, as nothing like it had been practised in Germany during their recollection. If British officers could make good soldiers of Germans, Portuguese, and every other nation without flogging, what a scandal it was to this country to say that it was necessary with the. English alone? In the army of our enemy, it must always be recollected, that there were rewards as well as punishments, and parliamentary influence was not necessary to

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obtain promotion. As to the cruelty with which English soldiers were treated, he insisted that it was greater than the common feeling of mankind could bear to witness, if exercised on a beast. If any man was to use a horse, or any other animal, with such cruelty in a public place, his brains would probably be knocked out by the populace. After a variety of observations on the cruelty and inefficacy of the system of Flogging, the hon. baronet concluded by stating, that, considering the advanced period of the session, and the impossibility of now going into the enquiry, he thought it the best way to move for an Address to the Prince Regent, which he did to the following effect: "That an humble Address be presented to his royal highness the Prince Regent, That his royal highness will be graciously pleased to take into his consideration the practice of flogging Soldiers, and that his royal highness will be graciously pleased to issue such orders to officers commanding regiments and corps of regiments as shall to his royal highness's wisdom appear best calculated to restrain, and finally to abolish, that cruel, unnecessary, and ignominious mode of punishment."
Mr. Manners Suttonadmitted the importance of the subject, but must think the statements of the hon. baronet much exaggerated. The very object proposed was already attended to, so far as was consistent with the military policy of the country, and could be made useful or manageable. It was unfair to speak of the effect of the law, until it had been tried; from the lateness of its enactment, it had not been fairly tried. Even now, frequent applications had been made to him to know how far the usual punishment might not be commuted for imprisonment. Instances of cruelty had been spoken of. If (hose instances were brought forward distinctly, they would meet investigation, and receive punishment. It was to be observed, that the object of the former motion, the Local Militia-man, was omitted. From the mode in which the statement of that case was originally made, some enquiry had been necessary, and the result was the following statement. The recruits had been assembled some days before the main body of the regiment, and there was a natural tendency to disorder. There were some reports that the men's bread was bad, and the colonel sent for the contractor to direct him to give better. The contractor as
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serted that the bread was good, and it was sent to the mess-table to be tried. The officers were all of opinion that it was of the proper quality; but the colonel not leaving it even to this, sent some to the inspecting general, who pronounced it good. The regiment arrived in small parties, and some of those at night rather intoxicated. The clamour against the bread was kept up by these people; and loaves were found kicked about the streets, a proof that there was no attempt to try the bread. After this, the words, "sour bread," and other insulting expressions, were chalked upon the wails—placards were hung up—the officers were hissed down the parade—and still the ringleader could not be found. The officers, however, were anxious that something should be done; the spirit was too dangerous to be passed over, and it was important to find out who was the exciter of the spirit. Taylor wrote the song of which so much had been said, and exhibited himself as a prominent parson. He was punished; not for the song, as was absurdly said, but for the part which he had taken. His punishment was partially inflicted, and he acknowledged its leniency in the presence of the surgeon. Some of Taylor's comrades had come into the room and were reproaching him with faint hearted-ness. Taylor told them, and repeated it to the surgeon, that he now was satisfied that without discipline, subordination could not exist; that the sentence was merciful, and his punishment lenient. So much with regard to the cruelty. As to the other statements of the hon. baronet, he hoped they were exaggerated. Some of those cases arose from regimental courts martial, which of course could not come within his cognizance; but they might be examined into. A few days ago, the Duke of York directed, that a regular return should be made of the sentences of regimental courts martial. The statement of the desertions was exaggerated. The hon. baronet had apparently concluded, that the whole number of 879 desertions implied so many individuals. This was a mistake, for the same individual sometimes deserted five or six times before he could be finally prevented. There were some parts of the hon. baronet's statement which he had heard with great regret. Such were those expressions, that the" state of the British soldier was looked upon with horror by other troops. It was the first time such an idea had been

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started. The practice which had been lately adopted, of bringing military subjects before the House in all cases, was mischievous. Much mischief must be done by its growing into a custom. If parliament made itself a court of military appeal, it would soon find that it had taken upon it an excessive burthen. It was unfounded to attribute the perfection of our discipline to any thing but the mutual respect of officer and soldier. This was not meant to cut off the appeal to the authority of the House in matters of extensive military policy, but to make that application customary would unhinge the whole frame of discipline. The source of the late glorious successes of our soldiers was not numbers, they were always inferior; nor exclusive courage, for it would be a calumny to suppose all other nations cowards. The system would be broken down by this habit of appeals to parliament. If the army were accustomed to make those appeals, some trifling abuses might be corrected, but the army would be gone. Where was the substitute for the present system; Imprisonment was now part of it. Capital punishment might be used; but was it to be said that there was to be no punishment, except capital, for the higher offences?
Mr. Broughamregretted that the actual statement of the hon. baronet seemed to have totally escaped the hon. member, whose speech was much more like a prepared anticipation of a speech expected, than an answer to one made. The cases which his hon. friend had adduced had been objected to, but he would not trouble himself about those cases. He was satisfied with shewing from the principle of reason and law, that the system of flogging was unwise. This was the object of the motion, and nothing relating to any particular case: he was only anxious to bring the House to a pledge that it would proceed on the subject next session. The judge advocate had spoken of his amendments to the Mutiny act, and the effects he expected from them. But what was the change? The Mutiny act had, since the Revolution, allowed of a latitude of punishment for higher offences, and a court-martial might sentence to imprisonment or flogging. By the 22d section of the act a court-martial could go to any extent of punishment that did not injure life or limb. There, was, of course, no change in the law. If it was still to be insisted that there was a change, it
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must reduce itself to a hint to courts-martial, that they might look rather more to imprisonment than they had done. But all this was feeble. Flogging for mutiny, &c. would continue to the amount of eight or ten hundred lashes, and the change produced by the amendment would be nothing. Why was not the amendment introduced into the first section, and made adequate to supersede capital punishment, as the only thing that could be superseded by the amendment? The courts martial having already had power of imprisonment for inferior offences, would find their powers neither increased nor diminished by this alteration. Taylor's case was of small interest compared with the general question. He had lately expressed himself strongly in abhorrence of the flogging of negroes, a race less connected with us than the objects of the motion, and the House were loud in their detestation of the cruelty. Why not, when it came nearer home, and among a gallant and manly race of beings? The spectacle of a military flogging was one of the most horrid; and, that not on the testimony of persons of peaceful habits, but on the authority of officers educated in the view of them. But those were the very men who talked of them in the most powerful language. The representations of those officers would have been answered, if they were capable of being answered; but they were not. They had given their names in the face of the whole army. If any thing could have been said there were venal pens enough to vindicate the cruelty. That the punishment was ignominious was proved on the testimony of officers of no common distinction; general Stewart, sir Robert Wilson, and general Cockburne. Flogging turned the indignation at the crime against the punisher. Why was not torture a regular punishment? except a dictum, and a solitary passage in the Bill of Rights, there was nothing about the abolition of torture, because it never was the law of England. On the trial of Fenton for the murder of the duke of Buckingham, there was an attempt at examining by torture, but the judges declared that it could not be administered by the law of England. That law prohibited any unusual and cruel punishment. The punishment was not merely obnoxious as not reclaiming the culprit, but as an offence to public decency. His hon. friend had been called on. to point out a substitute for flogging.

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The law had done it already, by pointing out imprisonment. There were other modes of making discipline secure, such as deprivation of pay and restraint of food. But now we took the wretched victim down from the triangles, an object for the dissecting room, or for the hospital, to be hung up again, and receive another such punishment; the Duke of Gloucester thanked his lieutenant-colonel for not having had a single flogging in his regiment in two years and a half. Was there any decay of discipline on that account? The practice was ruinous to the soldier: He thereby lost his spirit, feeling, and character. The hon. and learned gentleman concluded, by saying that the motion should have his cordial support.
Lord Palmerstonspoke against the motion.
Mr. Whitbreadreprobated the system of punishment which had been adopted in our army, and highly panegyrised the dukes of Gloucester and Grafton for their discountenancing it in their respective regiments. Save this one black spot, he knew of no taint upon the honour of our army.
Mr. Yorkeopposed the motion, and was inclined to think, that during the hon. baronet's stay in the Tower, he had been picking up stories from the old soldiers, and they really had played the old soldier on him.
Mr. W. Smithspoke in favour of the motion.
The Chancellor of the Exchequerthought the House ought not to put any faith in the statement of the hon. baronet, who had gone about collecting old stories, which, the moment they were stated, were falsified. The hon. baronet came forward with an abstract catalogue of complaints, which were uncontradicted and uncontradictable, because anonymous. He reprobated in strong terms the degrading light in which the hon. baronet had attempted to place the British soldier. God knows where he had got the notions which he had promulgated that night, but whether he had derived them from some periodical work which he was in the habit of reading, or from the company which he was in the habit of keeping, he trusted that he would not find in that House a single teller to support him.
Mr. Adamsand Sir H. Montgomery spoke against the motion.
Mr. Hutchinsonsupported the motion, and vindicated the discipline of the French and Russian armies.
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After a short reply from Sir F. Burdett, the House divided, Ayes 10, Noes 94.

List of the Minority.

Barham, J. F.

Smith, W.

Creevey, T.

Talbot, R. W.

Folkestone, Viscount

Whitbread, S.

Hutchinson, C. H.

TELLERS.

Ossulston, Viscount

Burdett, Sir F.

Parnell, H.

Brougham, H.

Sharp, R.