could there be in such a forgery, when colo-, nel Fullarton was entitled to receive the money, which was actually expended by his overseer, Alexander Bruce ? and why should it be forged in the name of John Bruce? Captain Kirkland swears that no such sum was paid through his bands, that he has examined his books and his entries, and that it would have been entered in his books if such a payment had been made; and that although purporting to be a receipt for a sum of money received by captain Kirkland for the use of colonel Fullarton, it never was paid to the deceased colonel Fullarton, or to any agent for him. If the crime was com mitted, it must have been exclusively for the sake of doing something criminal. Its manifest inutility strips the charge of all probability. Who can believe that a gentleman of talent and honour, who was actually entitled to a sum of money, could forge a voucher for payment, when he might have safely signed one with his own name, or that he would give any youcher real or unreal for payment, when it is proved by captain Kirkland, beyond the possibility of doubt, that he never received the money! My lords, these are the most material circumstances, as they apply to the affidavit of the defendant himself. But he has been joined in an affidavit by a noble lord, and how ever high the rank of that person may be I am sure the Court will feel it to be my duty to observe on what he has sworn. The noble lord having stated that he had ordered returns to be made for September, 1797, goes on to swear that he was at that time very much dissatisfied with the conduct of colonel Fullarton, on account of his returning certain horses which were afterwards discovered to be at grass, and were nevertheless borne on the strength of the regiment for a considerable time. That he had made minute inquiries into that fact, which he found to be true, &c. &c. When it is stated that colonel Fullarton drew the subsistence money (while absent from his regiment) for other purposes, we might have hoped that the noble carl would have been more definite in his charge, more particularly as this noble earl does not state his imputations as matters of suspicion, but as matters of which he had positive proof. So far as this noble person connects himself with the case, it is demonstrated by his own statement, that he has either concealed and sheltered, for a length of time, scandalous frauds and abuses, or that he has now brought forward an unjust charge, which is positively untrue. That it is so, is proved by the affidavits of disinterested persons which have been brought before the Court. Captain Bradshaw and captain Jameson were adjutant and paymaster at the time the complaint alluded to was made; they state what the ground and foundation of the charge was, namely, that by the express di rections of colonel Spencer, at the time colonel Fullarton was not with his regiment, part of the subsistence money had been otherwise applied, but applied for the use of the regiment, namely, in paying for sadlery and other appointments. That on this account a complaint had been laid before lord Carhampton, by the regimental agents; lord Carhampton has so far misrecollected the transaction, as to state that he sent for colonel Fullarton, and animadverted strongly on these particulars, and also with regard to the horses at grass. This he states, when it appears by colonel Draper's own affidavit, that it is impossible it could be true. It appears by the affidavits, that colonel Fullarton went into Ireland in August, 1797, and returned on the 16th of September of that year; it further appears, from the letter of colonel Handfield, set forth in colonel Draper's own affidavit, that the first communication with respect to these horses was made on the 2nd of November, 1797, when colonel Fullarton was not in Ireland,--and yet this noble carl comes forward to state in his affidavit, that having received such a complaint, he sent for colonel Fullarton, and animadverted to him upon it! The communications of colonel Spencer with colonel Handfield also demonstrate the mistake. I advert particularly to this for two reasons: In the first place to show how extremely difficult it may be for any gentleman, against whom a charge is made at the distance of twelve years, to repel the imputation, however unfounded; for it is truly providential, that colonel Fullarton's widow has been enabled to bring forward, at this distance of time, all the persons concerned in these transactions in the regiment, to answer and refute the charges which have been so unjustly made against her departed husband. If lord Carhampton is mistaken on a subject like this, where it was his duty to recollectto be certain of the facts before he made this affidavit-I am sure I do not go too far in saying, that the loose expressions and loose recollection of facts at such a distance of time by others, cannot amount to the smallest indicia of colonel Fullarton's conduct having been (as stated by lord Carhampton) incorrect, or of this imputation against him having the slightest possible foundation. My lords, I have gone at greater length into this subject than I could have wished, but not farther than my duty compelled me, in stating the facts mentioned in the different affidavits; and I positively affirm that there is no part of the charges stated in the affidavits brought forward by colonel Draper, or in his book, which have not met with a plain and decisive answer, negativing every particular as far as it is possible for human means to do so. I say every part of them has been negatived, notwithstanding the very strong disadvantage arising from the gentleman who was himself the subject of | cause go to a trial immediately, and waved the accusation being no longer in existence, to give personally the most direct contradiction to this unfounded attack on his character and honour; but it is given by the whole tenor of his life and conduct in all the various situations which he has filled with credit to himself and advantage to his country. this objection, in order to have the truth of the charges investigated. In point of fact the reason of delay has been owing to colonel Draper's own conduct. Your lordships are to consider, what is the enormity of the offence of having written such a libel, couched in the grossest, the foulest language. It was published to the world in the midst of a more important trial, at the very time when a motion for a new trial was pending. Its effect might have been to influence the My lords, colonel Draper has stated in his affidavit that previously to his writing this libel, colonel Fullarton had published something that had referred to him;-but it is but justice due to colonel Draper to men-minds of another jury. And I must say, that tion, that he has also stated that he gave the first provocation, by having originally published something against colonel Fullarton. He avows that he wrote a letter to general Picton which charged colonel Fullarton with a wilful breach of veracity, in having misstated a conversation, and he admits in a subsequent part of the affidavit that this letter was published with his consent, previous to the time when colonel Fullarton wrote the publication at which colonel Draper took offence. If one gentleman charges another in a point so serious to his honour as a breach of veracity, must he not expect that some answer in the same terms and style will be made to him in return, especially when it had been introduced into an affidavit? Your lordships must observe that colonel Fullarton's fame, honour, and character were concerned both in the prosecution against general Picton, and in the contents of the affidavit. But col. Draper engaged in this matter as a volunteer, without any interest, and without any personal provocation. No charge-no insinuation was made against him. Colonel Fullarton answers the publication, and confines himself merely to negativing the charge brought against him by colonel Draper. This deceased gentleman restricted himself to the precise transaction; he did not rake up all the transactions of colonel Draper's life,he did not go into matter totally irrelevant, although first provoked and excited to do so by the conduct of colonel Draper. He went no farther than the answer to the charge made against him. Can it be said by his advocates that colouel Draper has stinted his animosity to the same limit? the whole tenor of that book showed what was the design of colonel Draper. Of the honorable gentleman I mean to say nothing disrespectful out of this cause; but I must observe, that every person who had any connection whatever with that case was libelled and treated in a manner which does no credit to him. Persons who address themselves to the Court from this bar, never mingle their private passions with the discharge of their public duty; but it has become the daily practice to libel and calumniate them on every occasion, because they are conscientious in discharging their duties to their clients. If col. Draper had not had greater forbearance shown to him than he has shown to others, he might have been brought here before upon other prosecutions. He has, under these circumstances, thought proper to publish one of the grossest libels that could be written either on the living or the dead. His mode of defence has aggravated the malignity of his offence. He is now before your lordships for judgment, your lordships are apprised of all the circumstances of the case, and will pronounce such a judgment as you think the public justice of the country requires. Mr. Sergeant Best, in mitigation of punishment, was stopped by the Court. Lord Ellenborough.-In this case there is very much to lament There has been a great deal of irritation, the continuance of which it is the anxious wish of the Court to prevent. This case presents itself before the Court under very singular and peculiar circumstances. It is an indictment which has been preferred in respect to part of this publication, My lords, it may be attempted to observe in after an information had been filed as to other mitigation, that an action was brought for parts of the same pamphlet, upon which inthis libel, and great delay had been occasioned formation judgment has been passed on the by colonel Fullarton in bringing it to trial. defendant. It appears from the affidavit of col. There are affidavits, not now before the Court, Draper, that there has been no republication but which were read in the first instance, from of the libel since the criminal information was which it appeared that the delay was not owing filed. It appears that the parts of the pamphlet to colonel Fullarton. A commission was ob- which are now in question before us, were made tained to examine witnesses in Scotland by the foundation of an action by col. Fullarton colonel Draper; the official return to it in his life time. It stood for trial, and the was, that there were no witnesses in Scotland present indictment was only preferred in conwho could give evidence. The justification sequence of the abatement of that action. It put on the record did not amount to a justifi- likewise appears to the Court, upon affidavit, cation in point of law. But colonel Fullarton that colonel Fullarton answered that libel by was anxious to have the matter brought spee-writing a publication of his own. Under these dily before the Court. He chose to have the circumstances, after having heard all the alle gations brought forward as charges against colonel Fullarton, the answers given to them by the affidavits which have just been read on the part of the prosecution, and the arguments and comments upon them, the Court have yielded to the wishes and honourable feelings of this lady, before interposing any observations. But the time is now arrived when it is material for the Court to state, that they think the purposes of justice will be best answered (and one of the most beneficial purposes of justice is, to prevent any farther irritation or injury), by suffering the case to remain where it is. From the situation of the parties, we cannot suppose that there will be any irritation on one side; but on the other side, to prevent the continuance of any irritation, or the recurrence of it, it would be fit that col. Draper should enter into his own recognizance, with that of two other sureties, to come up, if called upon by the Court to receive judgment for that part of the libel which is contained in this indictment, and in the mean time to be of good behaviour. Mr. Sergeant Best.-What the Court has proposed is very kind to colonel Draper, and he accedes to it; as his counsel, I thank the Court. And col, Draper desires me to state, that if he has said one word that could give a pang to the feelings of this lady, it would give him more sorrow than it could give even to her. Lieutenant-colonel Draper entered into his own recognizance for One thousand pounds, with two sufficient sureties in Five hundred pounds each, that the defendant would, if called upon, come up to receive the judgment of the Court, and in the mean time to be of good behaviour. Wednesday next after five Weeks from the MIDDLESEX. The KING EDWARD ALURED DRAPER, Esq. The defendant being present here in court, and being, by his own default, convicted of certain misdemeanors in printing and publishing certain scandalous libels whereof he is indicted,-upon reading the several affidavits of the honourable Marianne Hamilton Fullarton, Thomas Joseph Moore, and the affidavit of Alexander Bruce thereto annexed, the said Thomas Joseph Moore and the affidavit of George Pagan thereto annexed, Thomas of Buckinghamshire, Nugent Kirkland, esq. Bradshaw, the right honourable Robert earl John Spottiswoode, esq. and the affidavit of John Jameson, esq. thereto annexed, and the said Thomas Joseph Moore and the affidavit of John Murdock, esq. thereto annexed. And upon hearing counsel on both sides, he the said defendant gives security by his own recognizance in the sum of One thousand pounds, with two sureties in Five hundred pounds each, for his personal appearance in this court whenever he shall lord-be thereto required by this Court, in order to receive the sentence of this Court in this prosecution, and in the mean time to be of good behaviour. Lord Ellenborough.-Though it would be ultimately in the power of the learned counsel for the defendant to have a full hearing, yet the very hearing is a source of farther irritation, which every honourable and feeling mind would wish to be avoided on such a subject. Mr. Sergeant Best.-After what your ship has said, I do not wish to be heard. Mr. Dauncey. The irritation arose from the provocation. Lord Ellenborough -I do not mean merely the provocation on this part of the subject, but the whole of the irritation arising out of these very unfortunate discussions. Mr. GARROW for the Prosecution. 679. Proceedings on the Trial of JOHN HARRIOTT HART and HENRY WHITE, before the Hon. Sir NASH GROSE, Knight, one of the Judges of his Majesty's Court of King's-Bench, and a Special Jury; for certain Libels upon the administration of public Justice in England, upon the Trial by Jury, upon the Hon. Sir Simon Le Blanc, Knight, one of the Judges of his Majesty's Court of King's-Bench, and upon the Jurors by whom Thomas Bennett and William Chapman had, at their respective Trials for Murder, been acquitted: June 16, 48 GEORGE III. A. D. 1808.* COURT OF KING'S-BENCH. Guildhall, Thursday, June 16th, 1808. THE JURY. J. Miron, Basinghall-street, merchant, Fore man. Wm. Robertson, Little St. Helens, mer- Wm. Jameson, Great Distaff-lane, merchant. Tho. Dawson, ditto, poulterer. James Davies, jun. ditto, gentleman. Joseph Warmington, ditto, taylor. John Debatt, Poultry, pastry-cook. The Information was opened by Mr. Richardson. It was as follows: Of HILARY TERM in the 48th year of the reign of King George the Third London BE it remembered that sir Vi to wit cary Gibbs knight attorneygeneral of our present sovereign lord the king who for our said lord the king prosecutes in this behalf in his proper person comes into the Court of our said lord the king before the king himself at Westminster in the county of Middlesex on Thursday next after the Octave of the Purification of the blessed Virgin Mary in this same term and for our said lord the king giveth the Court here to understand and be informed that before and at the respective times of the printing and publishing the several scandalous malicious and defamatory libels hereinafter mentioned the honorable sir Simon Le Blanc knight was and continually See the next case. since hath been and still is one of the justices of our said lord the king assigned to hold pleas before the king himself to wit at London in the parish of Saint Mary-le-Bow in the ward of Cheap and that heretofore to wit on the eleventh day of January in the forty-eighth year of the reign of our sovereign lord George the third by the grace of God of the United Kingdom of Great Britain and Ireland king defender of the faith a certain session of Oyer and Terminer and Gaol Delivery of our sovereign lord the king was holden by adjournment for the jurisdiction of the admiralty of England at Justice-Hall commonly so called situate in the street called the Old Bailey in the suburbs of the city of London before the right honourable and right worshipful sir William Scott knight doctor of laws and in the high court of our said lord the king of the Admiralty of England lieutenant commissary judge and president of the said court sir Archibald Macdonald knight chief baron of our said lord the king of his Court of Exchequer the aforesaid sir Simon Le Blanc the worshipful George Ogilvie and John Stoddart respectively doctors of laws and others their fellows justices of our said lord the king assigned by letters patent of our said lord the king to inquire upon the oath of good and lawful men of our said lord the king's city of London and of our said lord the king's counties of Middlesex Essex Surrey Kent and Borough of Southwark in the county of Surrey and every or any of them and by other ways means and methods according to their best knowledge and ability as well within liberties as without whereby the truth of the matter might be the better known and inquired into concerning all treasons felonies robberies murders and confederacies done or committed in or upon the sea or in any haven river creek or place where the admiral had or the admirals had or pretended to have power authority or jurisdiction and also of and concerning other offences injuries and misdemeanors whatsoever committed and done against the form of the several statutes mentioned in the said letters patent and to hear and determine the said treasons and other the premises and to make gaol delivery according to the laws and customs of the kingdom of Great Britain and the statutes in the said letters patent mentioned also to inquire upon the oath of good and lawful men of the city counties and borough aforesaid as well within the liberties as without of all other crimes and offences whatsoever and accessaries thereto whomsoever and howsoever had done or committed upon the high sea or in any haven river creek or place where the admiral had or the admirals had or pretended to have power authority or jurisdiction and to hear and determine all such crimes and offences according to the laws and customs of the kingdom of Great Britain and the statutes in the said letters patent mentioned or other statutes in that behalf made and provided as by the laws and statutes of the said kingdom of Great Britain might or ought to be heard discussed or determined by any commissioners or justices by our said lord the king appointed at which said session so then and there holden by adjournment as aforesaid one William Chapman was in due form of law tried by the jurors of a certain jury in that behalf duly impanelled and returned and chosen tried and sworn for and upon the murder of one Robert Dunn specified and charged upon him in and by a certain indictment theretofore to wit at a previous holding of the same session before the said sir William Scott the said sir Archibald Macdonald the said sir Simon Le Blanc the said George Ogilvie the worshipful John Woodfield Compton doctor of laws the said John Stoddart and others their fellows justices of our said lord the king assigned as aforesaid duly found returned and presented against him the said William Chapman by the jurors of a certain other jury in that behalf duly sworn and charged to inquire for our said lord the king and to which said indictment the said William Chapman had pleaded that he was not guilty of the premises therein specified and charged on him the said William Chapman was then and there at the same session so holden by adjournment as aforesaid by the jurors by whom he was so tried as aforesaid found not guilty of the premises in the said indictment specified And the said attor ney-general of our said lord the king for our said lord the king giveth the Court here further to understand and be informed that heretofore to wit on the eighteenth day of December in the fortyeighth year of the reign aforesaid a certain session of Oyer and Terminer and gaol delivery of our said lord the king was holden for the jurisdiction of the admiralty of England at Justice Hall commonly so called situate in the street called the Old Bailey in the suburbs of the city of London before the right honorable and right worshipful sir William Scott knight doctor of laws and in the high court of our said lord the king of the Admiralty of England lieutenant 'commissary judge and president of the said court sir Archibald Macdonald knight chief baron of our said lord the king of his Court of Exchequer the aforesaid sir Simon Le Blanc the worshipful George Ogilvie John Woodfield Compton and John Stoddart respectively doctors of laws and others their fellows justices of our said lord the king assigned by letters patent of our said lord the king to inquire upon the oath of good and lawful men of our said lord the king's city of London and of our said lord the king's counties of Middlesex Essex Surrey Kent and borough of Southwark in the county of Surrey and every or any of them and by other ways means and methods according to their best knowledge and ability as well within liberties as without whereby the truth of the matter might be better known and inquired into concerning all treasons felonies robberies murders and confederacies done or committed in or upon the sea or in any haven river creek or place where the admiral had or the admirals had or pretended to have power authority or jurisdiction and also of and concerning other offences injuries and misdemeanors whatsoever committed and done against the form of the said several statutes mentioned in the said letters patent and to hear and determine the said treasons and other the premises and to make gaol delivery according to the laws and customs of the kingdom of Great Britain and the statutes in the said letters patent mentioned also to inquire upon the oath of good and lawful men of the city counties and borough aforesaid as well within liberties as without of all other crimes and offences whatsoever and accessaries thereto whomsoever and howsoever had done or committed upon the high sea or in any haven river creek or place where the admiral had or the admirals had or pretended to have power authority or jurisdiction and to hear and determine all such crimes and offences according to the laws and customs of the kingdom of |