CASE OF

JOHN DRAKARD.

MARCH 13, 1811.

MAY IT PLEASE YOUR LORDSHIP, GENTLEMEN OF THE JURY,-You have all of you listened with that attention which the importance of the trial demands, to the very able and ingenious opening of the counsel for the prosecution; and you have heard the various comments which he deemed necessary to support his case, upon the alleged meaning which they have been pleased to impute, and on the various tendencies they have ascribed to the publication whose merits you are to try. I confess I was struck in various parts of that learned gentleman's speech, with the remarkable ingenuity required to twist and press into his service the different passages of the composition on which he commented; and although from knowing as I do, the context of those passages, with which, however, you were not made acquainted; and from knowing, as many of you may, the character of the person accused; and from having besides a little knowledge of the general question of military policy; I had no doubt that the learned counsel would fail to make out the intention which he has imputed to the defendant's publication; yet I am ready to admit, that everything which ingenuity could accomplish in this way he has done.

I shall not, gentlemen, follow the learned counsel through the different parts of his speech; but in conformity to my own wishes, and in compliance with the

positive injunctions of the defendant, I shall attempt to lay before you the composition itself, and to make for him a plain, a candid, and a downright defence. Even if I had the same power of twisting and perverting passages in a direction favourable to my client, which my learned friend has shown in torturing them against him, I am precluded from using it, not merely by the instructions I have received, but also by my own intimate persuasion that such a line of conduct is far from necessary, that it would be even hurtful to my case.

For the same reason, I shall abstain from following another example set me by the learned counsel for the prosecution. He alluded, and that pointedly, to a case distantly hinted at in this publication, that of Cobbett, who was convicted by a jury of publishing a libel; my learned friend took care to remind you of this circumstance, and from a line or two of the publication which you are now to try, he inferred that the subject of that libel was connected with the subject of military punishment. Perhaps, gentlemen, I might with equal justice, and even with better reason, allude to another case more directly connected with the one now in our view. Were I so disposed, I might go out of my way, and leave the merits of the present question; I might find no difficulty, since the example has been set me by my learned friend, and his conduct would justify me should I follow it,—in calling your attention to a case of libel more resembling the present; a case which was very recently tried, but in which a conviction was not obtained. If I were so disposed, I might refer you to a case, in which twelve honest men, unbiassed by any interest, determined that the great bulk of the present publication is not libellous nor wicked. But I will not avail myself of this advantage; I will rather suffer the experiment to be tried, in the person of this defendant, of the uniformity of juries; whether that which has been shown by a judicial decision to be innocent at Westminster can be adjudged guilty at Lincoln. I

might put it to you whether the intentions of this defendant can be so wicked as they have been represented by my learned friend, when twelve upright men in another court have held his publication to be not only lawful but innocent,-have solemnly pronounced it to be no libel at all. But, gentlemen, I will waive all these advantages in the outset, and confine your attention exclusively to that which is stated to be the evil of this publication. I beg you not only to lay out of your view the case of Cobbett, who was tried for a libel that has no possible connection with the present case, but I will also ask you to lay out of your view the acquittal of the Hunts, who have been tried for publishing at least three-fourths, and that which is called the most obnoxious part, of the contents of what you are now to try. All this I desire you to lay out of your view. I beg you to confine your attention solely to the merits of this newspaper; and if you shall be of opinion, after I have gone through the publication much less particularly than my learned friend, and without any of his ingenious, and, he must pardon me if I say, his sophistical comments; if, after collecting the defendant's intentions, from comparing the different parts of his dissertation, you should be of opinion that he has wished fairly to discuss a question of great importance and interest to the country; that in discussing this question he has not merely propounded his arguments, but also given vent to those feelings which are utterly inseparable from the consideration of his subject; if, in doing so, he has only used the right and privilege which all men in this free country possess, of discussing and investigating every subject, and of calling to account the rulers of the country (which indeed he has not done); if, in discussing the manner in which our rulers, not of the present day only, but of past times also, have conducted themselves, he has only exercised an unquestionable and unquestioned right,the right of delivering his sentiments and of enforcing

them; if this shall appear, you will be instructed by a higher authority than mine, and it will, I am sure, be your pleasure, as it will be your duty, to pronounce the defendant not guilty.

This, gentlemen, then, is the question you have to try; and that you may be enabled to decide it, I shall have little more to do than to request your attention to the publication itself. I do not wish you to forget the comments of the counsel for the prosecution; but I shall take the liberty of laying the defendant's discussion before you more fairly and impartially than it has already been laid before you by that learned gentleman. It was the intention of the writer to take up a subject of high importance, a question universally interesting, a case that has often been alluded to by different writers. Gentlemen, he had a right to form his opinion upon this question; he had a right to form it, although it happened to be inconsistent with the policy of the country. I do not say that his is a just opinion; that it is a correct opinion; but it happens to be his opinion, and he has a right to maintain it. If he thinks that the practice which he reprobates is detrimental to the service of this country; that it produces reluctance among the inhabitants to enter into the military state; nay, that it has the worst effect on the country itself; I have yet to learn that there is any guilt in entertaining such an opinion-I have yet to learn that it is criminal to promulgate such an opinion on such a subject. And if, in support of his sentiments, he resorts to topics of various descriptions, I shall hold him innocent for so doing, until I am informed from good authority, that a person may hold an opinion, but that he must be mute upon the subject of it; that he may see the question only in a certain point of view; that he must look at it through a certain particular medium; that he must measure the strength of his argument by a scale which my learned friend alone seems to have in his possession,-till I learn all this

from a higher authority than the learned counsel, I shall continue to hold the doctrine that it is the privilege of a subject of this country, to promulgate such fair and honest arguments as appear to him best adapted to enforce his fair and honest sentiments.

Gentlemen, how does the publisher of this piece proceed to declare and maintain what he believes? He begins, "ONE THOUSAND LASHES." This is a short title, as it were, to the article. It is headed in capital letters, in the same way as other articles in the newspapers are usually headed. If you will look into this very paper, gentlemen, you will find that other articles begin in the same way. Here is "SPAIN AND PORTUGAL," and another article has "FRANCE" for its head, and another "MISCELLANEOUS NEWS." Then follows a motto, or text, which the author had chosen to give force to what was to follow; and, according to the practice of newspaper writers, he took it from the speech of a celebrated law officer, choosing to quote him, because he differed from his opinion. Meaning, therefore, to argue with that officer, he could not have done better than seize hold of a passage from his speech; and he then proceeds to give a statement of the facts and sentiments which are connected with that passage; using various arguments, sometimes even a pleasantry or two, as is no uncommon method when we wish to come at the truth. He then states various instances of the punishment which he condemns, because he is about to discuss, or rather to show the impolicy of the particular mode in which military punishments are now so frequently inflicted. The learned counsel for the prosecution told you, that in order to obtain this collection of facts, the defendant had ransacked all the newspapers. Unquestionably, gentlemen, he had ransacked the papers; and if he had not brought together a statement of facts,—if he had not in this way laid the ground-work for what was to follow, what would the ingenuity of that learned gen