something that has passed? he appears to be one of those who believe that general Picton has been ill-treated, and he states that it will give him pleasure, if this communication can in any way tend to show that that treatment was premeditated. I think such a plain man as I have alluded to, would have examined the affidavit, to have seen whether that was true, and if he had so done, it does not appear to me that he would have found any rational ground for believing the fact which is there stated. The fact stated is this: that a physician from Ireland, having thoughts of settling at Trinidad, and having seen in several of the newspapers representations of the flourishing state of that island and invitations to go thither, presented himself, a mere stranger, and without any introduction,at the office of the setary of state, and desired an interview either with him, or his under secretary; that he obtained an interview with the latter; that he stated that the object of his calling there was to know (that which undoubtedly the secretary of state communicates to any person) what encouragement would be given to him, if he settled in the island of Trinidad; that he was told "you represent yourself to be a physician, settled in Ireland, the encouragement given is not suited to your condition; all we can give is ten acres of land, and a few tools to cultivate the land," upon which the gentleman jocularly said, "ob! that would only enable me to make a botanical garden:" the business was then at an end; this gentleman, an entire stranger to the secretary of state, having no introduction, coming to him as any other person might do, to ask what encouragement would be given to settlers at Trinidad, it might be supposed that after the common ceremonies (which I should presume would not be long, for we know that gentlemen in office have not much time to spare for ceremony) these two gentlemen might part. My lords, Mr. Marryat complains that the affidavit of Mr. Sullivan does not go far enough. Mr. Marryat says, he does not deny that he had a conversation with Dr. Lynch, he does not deny that he told him it might be as well for him to procure recommendations to the other commissioners, and that that might be beneficial to him. No, my lord, he does not, and for the plainest of all reasons, that a secretary of state must necessarily see so many persons upon such a subject, that it would be marvellous if he could recollect even whether he had seen such a person or not, and much more marvellous, if he could recollect what he had said to him, and whether he had or not asked him as matter of civility, whether he had a letter of recommendation to any of the other commissioners besides general Picton. Is that the subject of inquiry? The subject of inquiry, is, did he at that time advise him to procure letters for the other commissioners, and if so, for what reason did he so advise him? Did he tell him they would be more useful to him? And if so, why? because in all probability, the then governor Picton to whom he had letters, would in the course of six months be recalled; why? because colonel Fullarton had instructions; what, private instructions? no, because colonel Fullarton had instructions to investigate his conduct. Now, I would ask, is this conversation probable? I will go further: I know nothing of Dr. Lynch, and do not wish to throw out insinuations against him: I say he must have misconceived what passed, for that this is impossible. Mr. Marryat says, that all that is imputed to Mr. Sullivan is, that he did this without authority; for that lord Buckinghamshire knew nothing of it, and the administration knew nothing of it. Then what is the charge against Mr. Sullivan? It is, that he basely, infamously, and without the knowledge of his superior, in opposition to what the government were then doing (who were sending out three commissioners to co-operate in the great work which was then going on), contrary to the commission which was then making out, was insidiously plotting with his private friend, colonel Fullarton, to undermine the authority of that commission-to destroy the interest of governor Picton, and to procure him to be brought home in consequence of private insidious instructions, which he, Mr. Sullivan, had given to colonel Fullarton to investigate his conduct. That is the charge, Now, let any man ask, what is the probability of this? We know enough of men in office to know that they are so much in the habit of caution and circumspection, when acting with mere strangers, that it is next to impossible to imagine that they should enter into any discussion with strangers upon any matter of importance. This is a virtue; but it almost approaches to a vice, they are so circumspect and cautious lest what they say should be misconceived or misapprehended. But what is stated here? Why, that this base conspirator, endeavouring at once to destroy a man who was an object of the protection of that government of which he was a servant, breaking through the confidence reposed in him by the noble person with whom he was connected in office, was plotting with colonel Fullarton against the commission which was then preparing: as if he had said to a perfect stranger, "Sir, I am glad of an opportunity of communicating with a man of your rank and condition, and especially as you are a friend of governor Picton's, and seem to place your hopes of success in Trinidad on the patronage of governor Picton,-tell him his reign there will be extremely short,-tell him there are others apparently associated with him in order to carry on the business of the public, but I, Mr. Sullivan, shall control what lord Buckinghamshire can do on the subject. I am plotting with colonel Fullarton; and although every thing that will be found in this office shall bear a different complexion, and shall make it appear as if I had been carrying on the great work the government have in hand, I am deliberately plotting against them. Go and tell governor Picton this, that I am self-convicted of a baseness and infamy which has hardly ever attached upon the conduct of any man in office." My lords, this is what colonel Draper states himself to have beJieved, and upon the belief of which he published the libel. casion me to go further than I otherwise should. I felt that I could not shrink from my duty lest that should be misapprehended, but I will not go one step beyond it. My lords, if colonel Draper meant fairly and honourably to vindicate his friend, and fairly and honourably to do his duty by him, he might have adopted another course. Is it fit that the character of every honourable man should be the subject of every garretteer libeller who pleases to attack it? I am not applying this to the defendant: he is a man of a different description; but if he may do it, any man may be hired to-morrow to write down the fair fame of just and honourable men in society. But if colonel Draper really believed this, and meant fairly and honestly to investigate the matter, what should have been his course? He should, instead of public, ""dragging him from his hiding place," and "following him as long as he had a pen or a tongue," have made some inquiry, which it was competent to a person of his rank to do. It would not have been improper to have written to Mr. Sullivan, and to have said, " sir, I have heard a good character of you," (or " know nothing of you," whichever the fact might be) "but I tell you (perhaps it has not yet come to your knowledge) that Dr. Lynch has written a letter, and made an affidavit, which charge you with the grossest malversation in office; vindicate yourself if you can from this charge;" and if Mr. Sullivan could not vindicate himself, then it would have become proper to But it is said, that colonel Draper having indulged this belief,-which it is remarkable by-the-by is stated by colonel Draper only through his counsel, and not I believe in his affidavit, for that, if I am correct in my recol lection, does not state he believed it-it is stated, that upon this (a strange proposition, as it appears to me), not only it was justifiable for colonel Draper to state it to the public, but that it was his duty, as a good subject, to lay" arraigning Mr. Sullivan before the British it before the public, even at the expense of incurring legal guilt. I believe one of my learned friends stated it in so many words. I found no authority for this proposition in any thing that your lordship said to the Jury. On the contrary, I found your lordship ask ing, in language which I should be glad to repeat if I could, whether it is to be endured that any man, because another states of us that we are guilty of the most abominable crimes that mark-I am using now the language of colonel Draper-that mark the black catalogue of human vices, that if any man is to be found who will say that he believes the person charged to be guilty of that crime, is it to be said to-day that any man without inves-pursue the inquiry according to the laws and tigation, without inquiring into the general character of the person charged, without inquiring into his general conduct, or without inquiring into the particular fact, may, as colonel Draper says he will do by Mr. Sullivan, arraign him before the British public, drag him from his hiding place, and from his den, and whilst he has a tongue and a pen, never leave him? May he do this, and afterwards state as an excuse for it, that he has heard somebody say so, or if you please, that somebody has made a voluntary affidavit to that effect, and that he therefore thought that he was not only justified in doing this, but it was his duty to do it? Colonel Draper is stated to be, and I have no doubt is, in all other transactions, a very honourable and respectable man: for, colonel Draper, while on the one hand he will find that persons in our situation are not to be deterred from doing their duty, will also find that nothing which has passed will make me go one step further in this case. What that gentleman has said of me, shall not oc This refers to some severe animadversions in the defendant's publication, upon the manner in which the prosecution of general Picton was conducted by Mr. Garrow, and more especially upon the exhibition of a coloured drawing to the jury-Vide antè, p. 457,458. VOL. XXX. constitution of the country. But is it to be endured, because a gentleman takes up this as a true story, that he is to publish a book containing three hundred pages in language such as I never before read, reflecting thus grossly on the character of another? My lords, I apprehend it would be extremely dangerous if such a publication could be passed over lightly. I do not go into the other part of the case, because I conceive it to be unnecessary. I hope that in the retirement to which your lordships are about to consign colonel Draper, his zeal may be somewhat abated, and that before he again proceeds to impute base and dishonourable conduct, arising from base and dishonourable motives, to other persons, he will at least inquire what their characters and conduct have been, from whence judgment may be formed of what may have been their motives. a Mr. Sergeant Bayley-My lords, I am on the same side. I shall not add one word to what your lordships have heard. Mr. Fell. I shall take up your lordships' time with merely one single observation. The only excuse that has been attempted to be made on behalf of colonel Draper is, that he has published nothing but that which he believed to be true. Now without inquiring whether at the time he published this, he did believe that Mr. Sullivan had acted in the 3 Y way stated in the libel, it will be in the recollection of your lordship, that it was stated by the attorney-general, at the time of the trial, that Mr. Sullivan had upon his oath, in the privy council, in the most direct and positive manner denied every atom of the charge. That could not but have come to the knowledge of colonel Draper. But after this he comes and files upon the records of your lordships court an affidavit re-asserting the libel which he had before published, which is, in effect, no less than offering in mitigation a charge of perjury against Mr. Sullivan. Colonel Draper-My lords, before the Court proceeds to perforin its duty Mr. Attorney General.-Upon this occasion I take the liberty of reminding the Court of what is the usual course. I apprehend that a defendant, when brought up for judgment, may appear either by counsel, or himself, or both to pray the indulgence of the Court; if he appears by counsel, they must be heard before the counsel for the prosecution: or if he appears by himself, he ought to avail himself of his privilege before the counsel for the prosecution are heard. Lord Ellenborough,-You are perfectly correct in what you state. The time for colonel Draper to have offered any thing for the consideration of the Court, would have been immediately before or after his counsel. Mr. Attorney General.--Having said this, I will add that if this has proceeded from inadvertence; if colonel Draper's counsel did not inform him of the mode in which business is generally conducted in this court, and by that means he has lost an opportunity of stating any thing which he wishes your lordships to hear from him, I wave all objection. Lord Ellenborough.-We cannot hear colonel Draper in reply to the observations of the counsel for the prosecution; but if there be any thing which does not range itself under that description, the Court will be willing to hear it. tions which have been made by the counsel. Colonel Draper.-I only allude to the observations of the attorney-general on the day of my trial. With intention to diminish the quantum of that punishment which may be inflicted upon me, I am induced most humbly to ask your lordship's permission—I shall not trespass long, nor I hope exceed the due limit your lordship has stated-The attorney-general thought proper (from full confidence no doubt in the veracity of the instructions he received from his right honourable client, and his attorney,) to state to your lordship and the jury, in his speech upon my trial, as a fact Lord Ellenborough-If there is any thing material of that kind, it should have been suggested by your counsel, or opened by yourself before. We have already gone beyond the usual limits of indulgence, but the indulgence upon this occasion must not exceed all limits. Is there any thing that you would wish to offer in mitigation of punishment? that the Court will hear. Colonel Draper.-If your lordships wish, I will decline it. Lord Ellenborough.-The Court do not preclude you from stating any fact, or reason, which you may think material for the mitigation of your punishment, but we cannot allow a detailed animadversion upon the speech which the attorney-general made at the trial. We should be guilty of great inattention to our own duty, if we suffered it. Colonel Draper.-I will not trouble your lordships. Lord Ellenborough.-Let the defendant be committed to the custody of the marshal, and brought up to receive the judgment of this Court on the last day of the term. COURT OF KING'S BENCH. November 28th, 48 Geo. III. A. D. 1807. Colonel Draper came up to receive the judgment of the Court. Mr. Justice GROSE. Colonel Draper.-My lords, before the court proceeds to the final discharge of its duty, by delivering judgment upon me, I would most respectfully solicit its indulgence to say a few words on a point of my case, on which, Edward Alured Draper, you are to receive from peculiar circumstances, I was not per- the sentence of this Court, having been conmitted to offer evidence at my trial, and upon victed on an information, stating that before which on that account my counsel on that the printing and publishing of the libel conday did not offer any observations, but which tained in that information, to wit, on the first from the regard due to my own character, as day of May, 1802, and from thence until the an officer and a gentleman, as well, my lords, 31st day of May, 1804, the right honourable as to put the Court most fully into the posses- Robert lord Hobart was one of his majesty's sion of a matter of fact, which has been pressed principal secretaries of state, and that the on your lordship's attention by the attorney-right honourable John Sullivan was during general, in order, no doubt, to aggravate the heinousness of my offence Lord Ellenborough.-You must not advert to observations that have been made: you may enter (as you would have done, if you had spoken before the attorney-general had | been heard) into the circumstances of the case, but you must not reply to the observa that time the under secretary to lord Hobart And that from the said first day of May, 1802, till the 27th day of September, 1802, one Thomas Picton, esq. was resident in, and bad a certain command in and over his majesty's island of Trinidad: And also that before the printing and publishing of the said libel, to wit, on the 18th of October, 1802, his ma you published such a libel as the present. This would have been doing justice to the noble secretary and his under secretary, and would have been acting a part worthy of yourself. Had you taken that trouble, you would have avoided the unfortunate situation in which you now stand. You would have been jesty, by certain letters patent under the great seal, had caused to be appointed William Fullarton, esq. the said Thomas Picton esq. and Samuel Hood esq. commissioners from our lord the king, for executing the office of governor and commander-in-chief, in and over the said island of Trinidad, and of his majesty's forts and garrisons then erected and es-informed of the facts in the affidavits now betablished, or which should be erected and established within the same. The information then states, that you unlawfully, wickedly, and maliciously, devising and intending to defame and vilify the character of the said John Sullivan, upon the first of May, in the forty-sixth year of our lord the king, did unlawfully, maliciously, wickedly, and scandalously, publish a libel, containing an affidavit, a letter, and also strictures and comments on that affidavit and letter, which are now before me; but they having been read so clearly when you were formerly before the Court, it is unnecessary for me again to state them. In the conclusion of the information it is averred, that this publication is to the great scandal, infamy,and disgrace of the prosecutor, and in contempt of our said lord the king and his laws. The meaning of the libel is plain and direct, as you intended it to be, and imputes to Mr. Sullivan in so many words the conduct of a black and cowardly tyrant, degraded by a long black catalogue of human vices; you state him to have pursued a dark and cowardly malignity; that he had sown the seed of discord, and shot the sharp and barbed arrow of doubt and distrust; that he had uncloaked the stiletto, and endeavoured to plunge it into the heart of one of our bravest and most meritorious officers; thereby imputing to him, in his conduct towards general Picton, all the vices of the most sanguinary villain, and the most dastardly conduct of the most despicable coward. It is difficult to conceive what conduct in a gentleman of the rank and character of the prosecutor, could really have provoked such behaviour from you. As a motive to it, and in mitigation of punishment, it is sworn by some most respectable witnesses, that they are firmly persuaded you would not have written and published it, if, at the time of the publication, you did not believe it to be true. But when we take into our consideration the foundation of that belief, the contents of that affidavit, which was not called for, but which was voluntary, and the total improbability, nay almost impossiblity of that conversation ever having passed between Dr. Lynch and Mr. Sullivan, we might have expect ed, that before you had acted on it, you would have paused and informed yourself by every possible means of its truth, and this even (if there was no other mode of satisfying you) by an application to the prosecutor himself. You ought to have inquired whether such a conversation could by possibility have passed, before fore me, that the prosecutor neither directly nor indirectly, ever did inform Dr. Lynch, or any other person, that in all probability general Picton would be ordered to return to England before six months, or that colonel Fullarton was instructed to investigate the past conduct of general Picton at Trinidad; and that what was sworn by Dr. Lynch had not passed, and what had passed might probably be misconceived by him. If you had taken the pains, which it was your duty to take, in inquiring into the truth of the affidavit of Dr. Lynch before you acted on it, it would have been impossible for you not to have given credit to the honourable testimony you would have received, and you would not have plunged yourself into the unfortunate situation in which you now stand. It remains only to pass the sentence of this Court; respecting which, the like observations occur here, which have occurred before on so many occasions. As it respects the public peace this is a very grievous offence. By you it has been committed with great deliberation, has been persisted in with great obstinacy, and is in no way expiated by any appearance of remorse or contrition. It is difficult to say what extent of punishment ought to be inflicted on a person, of whose character so many respectable and noble witnesses have spoke so highly and so honorably, and on a mind so framed and constituted as we must suppose yours to be. It is difficult to say, what punishment such a person ought to receive for such an attack on so pure a character as we find the prosecutor's to be: When the sober hour of reflection comes, it will inflict on your mind a wound more severe than any sentence this Court can pronounce. At the same time, as an example to others, and that they may understand that these sorts of calumnious and malicious libels shall not pass unpunished, in order to prevent others from committing the like offences, this Court, taking all the circumstances of this case into consideration, doth order and adjudge, that you pay a fine to the king of one hundred pounds, that you be committed to the custody of the marshal of the marshalsea of this court, and be there imprisoned for three calendar months, and at the expiration of that period, that you give security for your good behaviour for two years, yourself in.five hundred pounds, and two sufficient sureties, in two hundred and fifty pounds cach. And that you be farther imprisoned till such fine be paid, and such security given. 678. Proceedings in the Court of King's-Bench against EDWARD ALURED DRAPER, Esquire, for a Libel on WILLIAM FULLARTON, Esquire, deceased: 49 GEORGE III. a. d. 1808, 1809. COURT OF KING'S-BENCH, Monday, November 21,49 Geo.III.A. D. 1808. JUDGES. The Right Hon. Edward Lord Ellenborough, The Hon. Sir Nash Grose, Knt. ; Mr. Garrow. My lords, I humbly move for the judgment of the Court against colonel Draper, who on this indictment has allowed judgment to go by default. Mr. Dealtry (of the Crown Office), proceeded to read the Indictment and the Affidavits on the part of the Prosecution. [These documents will be found in the Addenda at the end of this Volume.] The following Affidavits were then put in, on the part of the Defendant, and read by Mr. Dealtry. IN THE KING'S-BENCH. The KING against EDWARD ALURED DRAPER, esq. Edward Alured Draper, of Park-street, Westminster, in the county of Middlesex, lieut.-colonel in his majesty's service, and captain of a company in the 3rd regiment of guards, maketh oath and saith, that William Fullarton, esq. deceased, formerly colonel of the late 23rd regiment of light dragoons, in or about Trinity-Term 1806, brought an action in this honourable court against the deponent, for publishing in the same book for which this deponent hath since the said William Fullarton's death been indicted, the following alleged libel:"I must now inform the public, from authority beyond all question, that an official report was made by general the earl of Carhampton, commander in chief of his majesty's forces in Ireland, respecting the unfaithful returns made by Mr. Fullarton, as colonel of a regiment under his lordship's command; that the original documents were transmitted to the adjutant-general's office, horseguards, for the purpose of substantiating the charge; and with honest beart-felt satisfaction do I record it, to the eternal honour of our illustrious commander in chief, that a public official communication of the above-mentioned circumstances was made by his royal highness to the secretary of state's office, previous to Mr. Fullarton's leaving England. On this last transaction I shall not make a single comment." And this deponent saith, that he, in the vacation of the same term, pleaded not guilty, and also certain justifications, and thereby alleged in substance, that before the publication of the said book, and whilst the said William Fullarton was colonel of the said regiment, he had, as such colonel, made unfaithful returns, by returning a greater number of troop horses as effective to the said regiment, than in truth and in fact were effective thereto; and that an official report or communication had been made by the right honourable the earl of Carhampton, then commander in chief of his majesty's forces in Ireland, to the right honourable earl Camden, then lord lieutenant thereof, concerning the said returns; and that before the communication in this deponent's said plea after mentioned, certain claims and charges had been made, and were then subsisting, against the said William Fullarton, as colonel of the said regiment, concerning the appointments, &c. furnished for the same whilst he was colonel thereof; and that afterwards his royal highness, Frederick, duke of York, then commander in chief of his majesty's forces, understanding that it was intended to employ the said William Fullarton in some public capacity in the West Indies, made an official communication thereof to the right honourable lord Hobart, then one of his majesty's principal secretaries of state, at his office as such secretary. And this deponent further saith, that issue was joined in the said cause, and notice of trial was given this deponent's solicitor in the following Michaelmas term, immediately upon receiving which he this deponent applied to this court for commissioners to examine witnesses resident in Ireland and in Scotland, and obtained an order Nisi for that purpose, but the |