contrary to the law of England, he is to be | for such excess? If any one of the judges responsible here. If it be clear that governor Picton has, in this case, acted in contradiction to the laws of England; for that oppression he is to be tried here under this act; for the only object of this statute (and so far my friend was right) was, to alter the forum where the trial should take place, and not by any means to affect either the crime or form of indictment. It is said that this case does not come within the 42nd of Geo. 3rd, c. 85, which is argued thus: The statute of William 3rd applied only to governors; the 42nd of Geo. 3rd extends to other persons besides, but only to such cases where persons would be triable and punishable in England, if the act were done here. And as the judges of the supreme court could neither be triable nor punishable in England, therefore this judge cannot be tried and punished. How does this position correspond with the terms of the act? [The learned counsel here read the first clause of the act.] of courts of record, with the exception of the king's superior courts, act beyond. their jurisdiction, are they not amenable, here? Then has not general Picton, exercised a public function in this colony! If he has, the statute applies; because this offence, if committed in England, would have rendered him guilty and punishable. Any other interpretation would deprive the act of all its effect. If my learned friend's construction were to prevail, persons in the defendant's situation never could be punished. As superior judges in the colony, they could not be brought there to justice; and if in this country they are likewise exempted upon the principle of being superior judges; they are not punishable at all, unless by the extraordinary interposition of parliament. Whereas the object of the legis lature clearly was, to make all who were entrusted with public functions in the colonies amenable in this country for all acts of oppression and cruelty, or whatever else is done by them in contravention of the laws and con The act therefore expressly extends to all persons exercising public offices, or acting in a pub-stitution of this realm. lic capacity. Is not the situation of governor or a judge in Trinidad a public office? and was not the act complained of done by general Picton, when acting in a public capacity? If this be so, is he not manifestly brought within the words of the statute? My friend says, the defendant cannot be punished here for such misconduct; is not any person who exceeds his jurisdiction in this country, criminally answerable for that crime? To give the clause any other construction, would be to defeat its meaning, and destroy its beneficial effects. But further, on what ground is it that he is to be considered as a judge of a court of superior jurisdiction, and entitled as such to the advantages which such judges possess in this country? Such courts are not courts of record; mere distance gives them no title to be considered as such, as they are not holden to be so by the common law. Is not the sole question then, whether such an assumption of excessive jurisdiction is not a misdemeanor, which in any judge, excepting the twelve judges of England who sit in a superior capacity, would be triable in England? If the mayor or recorder of London were to exceed his jurisdiction, is there any doubt that they might be tried in this court I make no comment on the last part of my learned friend's speech; perhaps his observations had better have been spared. Whether the defendant ordered this infliction of torture from personal malice, or from that general malice which the law annexes to all illegal conduct, is of no importance as to the question of illegality. Before he signed that inhuman order, he ought to have paused, as I am persuaded every man who hears me would have paused. He should have reflected how such an act must affect his own character, and that of his country. If the general has been calumniated, no man regrets it more than I do; but we must not confound the universal expression of public feeling and abhorrence towards an act at which the mind of every Englishman must revolt with the insidious artifices of private calumny. Every honest man must reverence the one, and detest and despise the other. Note. No further proceedings took place in this case, until Hilary Term, 52 Geo. III. A. D. 1812, when the Court ordered the defendant's recognizances to be respited until they should further order. It was thought by the Bar, that had the opinion of the Court been delivered, judgment would have been given against general Picton ; but that upon a consideration of the merits, it would have been followed by a punish Lord Ellenborough.-The Court will consider those points which have been agitated on both sides, and will give their judgment after they shall have had an opportunity of fully considering them. ment so slight, and so little commensurate with the magnitude of the questions embraced by the case, as to have reflected but little credit upon the prosecution; and I have been informed, that it was by the advice of one of the learned counsel, who greatly distinguished himself in arguing the questions which arose in this case, that it was not again agitated. In the month of July 1809, while this prose cution was still pending, the defendant, ge- | Vittoria, and in the subsequent operations of neral Picton (as it has been reported, at the the allied armies in Spain; and Mr. Speaker unsolicited recommendation of the then com- gave him the thanks of the House accordingly 'mander-in-chief), was appointed to the com- as followeth :mand of a brigade, at the attack upon the Island of Walcheren, where he was seized by a fever, from the effects of which he never fully recovered. In January 1810, he held a similar command under sir Arthur Wellesley in Portugal; and was soon after nominated to the command of the third division, which made so conspicuous a figure during the whole of the peninsular war. After the battle of Vittoria (which was fought on June 15th, 1813), he, on account of ill-health, returned to England: he was then ́elected to serve in Parliament, as member for the borough of Pembroke (of which county he was a native), was appointed colonel of the 77th regiment of foot, and was chosen a knight of the Bath. On the 11th of the following November, the unanimous thanks of the House of Commons were presented to him for his military services. He immediately afterwards rejoined the army of Spain, and commanded, at the battles of Orthes and Thoulouse, the same division which he had so often before led to victory. Ou the 24th of June 1814, he again received the thanks of the House of Commons; and he fell at the battle of Waterloo in June 1815, gloriously leading his division to a charge "with bayonets, by which one of the most "serious attacks made by the enemy upon our position was defeated. "* The nature and extent of those services which called forth the votes of thanks above alluded to, are thus concisely and eloquently display ed by the eminent individual who then filled the chair of the House of Commons. "November 11th 1813. "Lieutenant-general sir Thomas Picton, knight of the most honourable order of the Bath, being come to the House, Mr. Speaker acquainted him with the resolutions of the House of the 7th of July last, and of the 8th instant, respecting his services in the battle of *These are the terms in which his death is commemorated by the duke of Wellington, in the despatch announcing the victory of Waterloo, as published in the London Gazette. A monument to the memory of sir Thomas Picton has been erected in the Cathedral of St. Paul's, by an unanimous vote of the House of Commons. "Lieutenant-general sir Thomas Picton; In this House your name has been long since enrolled amongst those who trave obtained the gratitude of their country for distinguished military services; and we, this day, rejoice to see you amongst us, claiming again the tribute of our thanks for fresh exploits and achievements. "Wherever the history of the peninsular war shall be related, your name will be found amongst the foremost in that race of glory; by your sword the British troops were led on to the victorious assault of Ciudad Rodrigo; by your daring hand the British standard was planted upon the castle of Badajoz ; when the usurper of the Spanish throne was driven to make his last stand at Vittoria, your battalions filled the centre of that formidable line, before which the veteran troops of France fled in terror and dismay; and by your skill, prudence, and valour, exerted in a critical hour, the enemy was foiled in his desperate attempt and raise the blockade of Pampluna. to break through the barrier of the Pyrenees, renees, this double harvest of glory in one year, "For the deeds of Vittoria and the Pythe House of Commons has resolved again to give you the tribute of its thanks; and I do therefore, now, in the name and by the command of the Commons of the united kingdom of Great Britain and Ireland in parliament assembled, deliver to you their unanimous thanks for your great exertions upon the 21st of June last near Vittoria, when the French army was completely defeated by the allied forces under the marquess of Wellington's command; "And also, for the valour, steadiness, and exertion, so successfully displayed by you in repelling the repeated attacks made on the position of the allied army by the whole French forces under the command of marshal Soult between the 25th July and 1st of August last," “June 24, 1814. "Lieutenant-general sir Thomas Picton; You stand amongst us this day, to receive our thanks for great and signal victories won by British arms in the fields of France. "Descending from the Pyrenees, surmounting in adverse seasons, all the difficulties of a country deeply intersected, and passing with unparalleled skill and boldness the formidable torrents of Navarre, after a series of arduous and sanguinary conflicts, you came up with the collected forces of the enemy, posted upon the heights of Orthes. Attacked on all sides by British valour, the troops of France at length gave way, and commenced their retreat; pressed however upon each flank, that retreat was soon changed into a flight, and that flight to a total rout: pursuing their broken legions across the Adour, and seizing upon their strong holds and accumulated resources, you then laid open your way, on the one hand, to the deliverance of Bourdeaux, and, on the other, to the lamented but glorious day of Thoulouse. "It has been your fortune to reap the latest laurels in this long and memorable war; and, leading forward your victorious columns from the Tagus to the Garonne, you have witnessed, with arms in your hands, the downfall of that gigantic tyranny which your own prowess has so materially contributed to overthrow. "Informed of these triumphant exploits, this House lost no time in recording its thanks to all who had bravely fought the battles of their country. But to those whom we glory to reckon a mongst our own members, it is my duty and happiness to deliver those thanks personally. And I do now accordingly, in the name, and by the command of the Commons of this united kingdom, deliver to you their unanimous thanks, for your able and distinguished conduct throughout all those operations which concluded with the entire defeat of the enemy at Orthes, and the occupation of Bourdeaux by the allied forces of Great Britain, Spain, and Portugal." 677. The whole Proceedings in the Case of EDWARD ALURED DRAPER, Esquire, on an Information for writing, printing, and publishing certain Libels upon the Right Honourable JOHN SULLIVAN: 46-48 GEORGE III. A. D, 1806-1807.* COURT OF KING'S BENCH. May 6th, 1806. MR. GARROW.-I humbly move your lordships for a rule to show cause why a criminal information should not be exhibited against lieutenant-colonel Draper, of the third regiment of foot guards, the avowed author of a book which contains a gross libel upon the right honourable John Sullivan, heretofore one of the under secretaries of state for the colonial department. The present application originates in a transaction which has lately been before the court, I mean the trial of general Picton, late governor of the island of Trinidad. On that occasion colonel Draper wrote a book, which was published by a bookseller of the name of Budd, in defence of the conduct of governor Picton. In one part of this book he relates a conversation which he represents as having taken place between Mr. Sullivan and a Dr. Lynch, upon which he animadverts in very strong language. It is upon this part of his book that my present application is grounded. The following affidavits were then read. The right honourable John Sullivan, See the Case of general Picton, antè, p. 225. See also the next case, one of his majesty's most honourable privy council, and late his majesty's under secretary of state for the colonial department, now residing at Riching's Lodge, in the parish of Iver, in the county of Bucks; and John Budd, of Pall Mall, in the parish of St. James's, in the county of Middlesex, bookseller, severally make oath and say; and first the said John Sullivan for himself saith, that from the month of May in the year 1801, to the month of May 1804, be this deponent acted as under secretary of state in the war and colonial department; and this deponent further says, that some time in or about June 1801, Thomas Picton, esq. was, by commission under the great seal, appointed governor and commander in chief in and over the island of Trinidad; that in the month of October 1802, William Fullarton, esq. and captain (now sir Samuel) Hood were appointed by his majesty's commission under the great seal, joint commissioners with the said Thomas Picton, to take upon themselves, and exercise, jointly with the said Thomas Picton, the government of the said island: and this depo. nent further says,, that having been informed that a certain book had been published containing strong reflections upon this deponent, and which book, as this deponent has discovered, is entitled "An Address to the British Public on "the Case of Brigadier General Picton, "late Governor and Captain General of "the Island of Trinidad, with Observa❝tions on the Conduct of William Ful"larton, Esquire, F. R. S. and the Right "Honourable John Sullivan," this deponent went on the twenty-ninth day of April last to the shop of the said John Budd, bookseller in Pall Mall, at whose shop the said book, upon the title page thereof, purported to be sold, and did there buy a copy of the said book: and this deponent further says, that in a certain part thereof the said book professed to state a certain letter from a Dr. Lynch. to a Mr. Gloster, dated some time in the month of February 1805, importing therein that this deponent, in a conversation with the said Dr. Lynch, some time previous to the month of December 1802, told the said Dr. Lynch that in all probability general Picton would be ordered to return to England before six months, as colonel Fullarton was instructed to investigate his past conduct in Trinidad: and this deponent_further says, that the said book also professes to state the copy of an affidavit therein supposed to have been made by the said Frederick J. Lynch some time in the month of July 1805, and verifying upon oath the said statement in the said letter: and this deponent further says, that in another part of the said book, and immediately after the said supposed copy of the said supposed affidavit, is the following passage, "Here is a gentleman," &c. [All the quotations in this affidavit are inserted at length in the Information infrd p.982] and in another part of the said book, "I do therefore again call upon you, Mr.Sullivan, to come forward, and "to answer my question. In the name of," &c. [Vide Information, p. 983.] And this deponent further positively and solemnly declares, that he never did, either directly or indirectly, inform the said Dr. Lynch or any other person, either in conversation or otherwise, beforc the month of December 1802, or at any other time, that in all probability general Picton would be ordered to return to England before six months, as colonel Fullarton was instructed to investigate the past conduct of general Picton at Trinidad, nor use any words to that or the like effect. Nor had this deponent, previous to the month of December 1802, any knowledge or any reason to believe, that it was probable that general Picton would be ordered to return to England; nor did this deponent then or at any time since know, nor has he now any reason to suspect or believe, that the A VOL. XXX. said colonel Fullarton had any instructions whatever, either of a public or private nature, to investigate the conduct of the said general Picton in Trinidad, or to procure his removal from the government of that island, or his being ordered to return to England; nor until April 1803, - had this deponent any reason to know or to suspect that any circumstance had occurred, that had occasioned any difference of opinion between the said general Picton and colonel Fullarton, but on the contrary, this deponent expected and believed, that the said colonel Fullarton and general Picton would co-operate in the most cordial and friendly manner, in carrying into execution the powers given to them in and by the said commission, and this deponent expressed himself on all occasions to that effect to the said colonel Fullarton, previous to his departure, and in all his correspondence with the said colonel Fullarton, and particularly in the last letter written by this deponent to the said colonel Fullarton, before his departure from England, this deponent expressed himself as follows: "From the manly character of general "Picton, I am led to hope. that you will "quickly fall into habits of free commu"nication, and I know from my own ex perience, how much reason he will "have to be satisfied with your mode of "proceeding." And this deponent further says, that this deponent's said hopes and expectations of cordial co-operation of the commissioners was strengthened by the first letter from the said colonel Fullarton after his arrival in Trinidad, dated 12th January, 1803, which, amongst other things, contains the following passage: "I was received by general Picton "with great politeness, and with all the "attentions which lord Hobart had been pleased to direct," and the letter afterwards adds, "General Picton and I have "carefully read lord Hobart's instruc"tions to the commissioners, and we "shall not lose a moment in preparing "to carry his lordship's intentions into "effect." And this deponent further saith, that he never did, upon any occasion, take any step or recommend any measure either of a public or private nature, with a view, or that had or could be construed to have a tendency in any manner whatever to prejudice or injure the said general Picton, as governor or commissioner at Trinidad, or otherwise. And this deponent further saith, that he has not the least doubt, but that he is the person alluded to in the parts of the said book herein-before stated. And this deponent further saith, that an application having been made on this deponent's behalf, to the said John Budd, to learn who was the author of the said 3 Q book, this deponent, on the eve of Saturday, the third day of May, instant, received a letter, a copy of which is hereunto annexed. And this deponent, John Budd, for himself saith, that he is acquainted with the hand-writing of the said Edward Alured Draper, and has seen him write and received letters from him, and that he has seen the said letter, a copy of which is hereunto annexed, and that he verily believes the same to be in the hand-writing of the said Edward Alured Draper. Sworn in Court, by the Deponent, the Right Honourable John Sullivan, this 6th day of May, 1806. By the COURT. JOHN SULLIVAN. Sworn in Court, by the Deponent, John Budd, this 6th day of May, 1806. By the COURT. JOHN BUDD. THE LETTER ABOVE REFERRED TO. Pall Mall, May 3rd, 1806. SIR;-I understand from my bookseller, Mr. Budd, of Pall Mall, that he has been required to give up the manuscript copy of the Address to the British Public, published with my name; that this demand has been made by a gentleman who calls himself Mr. Frogatt, and your solicitor, who at the same time held out threats of legal punishment to Mr. Budd, in case his requisition was not complied with. Although, Sir, I never had the honor of your acquaintance, and even may have been totally unknown and perhaps unheard-of by you, until very lately, I am yet to flatter myself that the style and manner in which my public charge against you is drawn up, and the remarks which accompany that charge, by no means characterise a man who would shrink from any responsibility which may possibly attach to the expressions in which he has conveyed the one or the other. I am rather inclined to suppose, that your solicitor's calling upon Mr. Budd for the manuscript, and threatening him with the pillory in case he did not give it up, was one of those legal steps which the practice of the law renders necessary and perhaps indispensable. In that case, it is the act of Mr. Frogatt and not of Mr. Sullivan, and I can account for it. It is perhaps unnecessary, in the present instance, to assure you, that I never in my life asserted any thing as a fact, which I did not believe to be true; that there are few things that I have written, which I did not know to be fact, and cer tainly not a single word, that I have printed and published, which have not my unqualified credit and belief, and which consequently, under these circumstances, I am not prepared to defend and substantiate. Actuated entirely by these principles, I cannot hesitate one moment in gratifying either your own private curiosity (which a simple note of compliment from you would have previously ensured), or in now satisfying the wishes of your solicitor by informing you, that if you will direct him to take the trouble to call on Mr. Miller, No. 35, Red-Lion-square, he is at full liberty to review the manuscript, and take all such extracts as he may choose to make the ground of a criminal information against me. I have little doubt, Sir, but you have weighed the consequences of your intended step with as much seriousness as I did those attached to me before I published. I have passed the Rubicon, and you, Sir, Iunderstand, are preparing to follow. My suspense is over, and I heartily congratulate myself on my resolution. Before this letter reaches you, it is not unlikely that you may have actually executed the preliminary step to that measure which will give the colour and complexion to your future life. If this has not yet taken place, it is generous, it is just, it is charitable, and surely, Sir, it is not presumptuous, to beg of you to consider-to pause yet a little-to think, Sir, and to weigh well this point-to reflect most seriously that the question between you and ine will not, cannot be decided by mere law-to be assured and satisfied, whatever your lawyers may tell you to the contrary, that the decision of the Court of King's Bench on any libellous matter (legally so called) contained in my charges against you, will no more exonerate you in the eyes of your country and the opinion of all considerate men, from the irreparable disgrace and infamy attached to your concealment of the author of your private instruction to your friend, Mr. Fullarton, than any hostile decision against me can injure or prejudice me in the opinion of my sovereign, or of one honorable man in England. Do you, Sir, seriously believe, or is it your intention to attempt to discredit Dr. Lynch's oath? If there were as many law libels as there are words in my book, these would no more go to exculpate you from my charge, than your own affidavit would clear you from that of Dr. Lynch, could I imagine so monstrous a supposition as your making one. What! Rebut the oath of Dr. Lynch by another?—I say again, Sir-impossible ! you cannot think of it! you well know, |