§ 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 200l. to the King, and to give security for his good behaviour for three years, himself in 400l., and two sureties in 200l. 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- 687 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- 688 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 689 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 690 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 691 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 692 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- 693 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 694 grant him such redress as his case may admit of."
§ Ordered to lie upon the table.