Today in London legal history, 1811: Leigh and John Hunt acquitted of seditious libel, after denouncing flogging in the army

Edward Leigh Hunt (1784-1859), was a romantic writer, editor, critic and comrade/contemporary of Byron, Shelley, and Keats, and an innovative poet. He is also remembered for being sentenced to prison for two years on charges of libel against the Prince Regent (later king George IV), being one of the most outspoken and effective journalists in the age of the French Revolution.

Leigh Hunt’s published his first book of poetry, Juvenilia in 1801, aged 17: it became a sensation and went to four editions in as many years.  Hunt later published over 50 volumes of prose, poetry, and drama, and a mass of influential reviews, articles, and essays.  He began writing theatrical reviews in The News (1805) and The Statesman (1806), two newspapers published by his brother John Hunt, before they together launched a widely-read weekly newspaper, The Examiner in 1808, clearly expressing his opinion on political subjects. This was to get him into trouble with the authorities, and the brothers were brought to trial several times. Acting in their own defence, they were repeatedly acquitted

Leigh took on the job of editor and leader-writer. The Examiner soon became popular. It was thoroughly independent, owing no allegiance to any political party, but it advocated liberal politics, with the aim of supporting the cause of reform in parliament, liberal opinion in general, as well as trying to enthuse its readers with modern literature. The Examiner’s literary side was central to launching the careers of the young romantic poets of Hunt’s circle.  He influenced and reviewed both John Keats and Percy Shelley, and was the first to publish Keats poetry. He became an intimate friend of both Percy and Mary Shelley, and staunchly defended the poet’s genius. Many of the romantic poets and writers, like Hunt, inclined to radical or pro-reform ideas, while their writing was also considered innovative and ground-breaking. Hunt was a crucial focal individual at the centre of the literary and publishing world during the Romantic and Victorian early 19th century

But it was its political writing led The Examiner to be looked upon with suspicion by those in power.

In September 1810, the Hunt brothers republished an article from a Stamford newspaper, entitled ‘One Thousand Lashes’, attacking the brutality of the army’s flogging of serving soldiers, written by John Scott. Scott and the two Hunts were charged with seditious libel: the government reasoning that suggesting, as the article had done, that soldiers in Napoleon’s army were more humanely treated than soldiers in British army, was calculated to undermine national security.

The offending article read:

‘One Thousand Lashes!!’
(from the Stamford News)

“The aggressors were not dealt with as Buonpoarte would have treated his refractory troops.” (the Attorney General)

“Corporal Curtis was sentenced to receive ONE THOUSAND LASHES, but after receiving two Hundred, was, on his own petition, permitted to volunteer into a regiment on foreign service.- William Clifford, a private in the 7th royal veteran battalion, was lately sentenced to receive ONE THOUSAND LASHES, for repeatedly striking and kicking his superior officer. He underwent part of his sentence by receiving seven hundred and fifty lashes, at Canterbury, in presence of the whole garrison. – A garrison court martial has been held on board the Metcalf transport, at Spithead, on some men of the 4th regiment of foot, for disrespectful behaviour to their officers. TWO THOUSAND SIX HUNDRED LASHES were to be inflicted among them. – Robert Chillman, a private in the Bearstead and Malling regiment of local militia, who was lately tried by a court martial for disobedience of orders, and mutinous and improper behaviour while the regiment was embodied, has been found guilty of all the charges, and sentenced to receive EIGHT HUNDRED LASHES, which are to be inflicted on him at Chatham, to which garrison he is to be marched for that purpose.” – London Newspapers.

The Attorney-general said what was very true; – these aggressors have certainly not been dealt with as Buonoparte would have treated his refractory troops; nor indeed as refractory troops would be treated in any civilised country whatever, save and except only this country. Here alone, in this land of liberty, in this age of refinement – by a people who, with their usual consistency, have been in the habit of reproaching their neighbours with the cruelty of their punishment – is still inflicted a species of torture, at least as exquisite as any that was ever devised by the infernal ingenuity of the Inquisition. No, as the attorney-general justly says, Buonoparte does not treat his refractory troops in this manner; there is not a man in his ranks whose back is seamed with the lacerating cat-o-nine-tails; his soldiers have never yet been brought up to view one of their comrades stripped naked, – his limbs tied with ropes to a triangular machine – his back torn to the bone by the merciless cutting whipcord, applied by persons who relieve each other at short intervals, that they bring the full unexhausted strength of a man to the work of scourging. Buonoparte’s soldiers have never yet with tingling ears listened to the piercing screams of a creature so tortured: they have never seen the blood oozing from his rent flesh; they have never beheld a surgeon, with dubious look, pressing the agonised victim’s pulse, and calmly calculating, to an odd blow, how far suffering may be extended, until in its extremity it encroach on life. In short, Buonoparte’s soldiers cannot form any notion of that most heart-rending of all exhibitions on this side of hell, – an English military flogging.

Let it not be supposed that we intend these remarks to excite a vague and indiscriminating sentiment against punishment by military law: – no, when it is considered that discipline forms the soul of an army, without which it would at once degenerate into a mob; – when the description of persons which compose the body of what is called an army, and the situations in which it is frequently placed, are also taken into account, it will, we are afraid, appear but too evident, that the military code must still be kep distinct from the civil, and distinguished by greater promptitude and severity. Buonoparte is no favourite of ours, God wot – but if we come to balance accounts with him on this particular head, let us see how matters will stand. He recruits by force – so do we. We flog those whom we have forced – he does not. It may be said he punishes them in some manner; that is very true. He imprisons his refractory troops – occasionally in chains – and in aggravated cases, he puts them to death. But any of these severities is preferable to tying a human creature up like a dog, and cutting his flesh to pieces with whipcord. Who would not go to prison for two years, or indeed almost any term, rather than bear the exquisite, the almost insupportable, torment occasioned by the infliction of seven hundred or a thousand lashes? Death is mercy compared with such sufferings. Besides, what is a man good for after he has had the cat-o-nine-tails across his back? Can he ever again hold up his head among his fellows? One of the poor wretches executed at Lincoln last Friday, is stated to have been severely punished in some regiment. The probability is, that to this odious, ignominious flogging, may be traced his sad end; and it cannot be doubted that he found the gallows less cruel than the halberts. Surely, then, the attorney-general ought no to stroke his chin with such complacency, when he refers to the manner in which Buonoparte treats his soldiers. We despise and detest those who will tell us that there is as much liberty now enjoyed in France as there is left in this country. We give all credit to the wishes of some of our great men; yet while any thing remains to us in the shape of free discussion, it is impossible that we should sink into the abject slavery in which the French people are plunged. But although we do not envy Buonoparte’s subjects, we really (and we speak the honest conviction of our heats) see nothing peculiarly pitiable in the lot of his soldiers when compared with that of our own. Were we called upon to make our election between the services, the whipcord would at once decide us. No advantage whatever can compensate for, or render tolerable to a mind but one degree removed from brutality, a liability to be lashed like a beast. It is idle to talk about rendering the situation of a British soldier pleasant to himself, or desirable, far less honourable, in the estimation of others, while the whip is held over his head – and over his head alone, for in no other country (with the exception, perhaps, of Russia, which is yet in a state of barbarity) is the military character so degraded. We once heard of an army of slaves, which had bravely withstood the swords of their masters, being defeated and dispersed by the bare shaking of the instrument of flagellation in their faces. This brought so forcibly to their minds their former state of servitude and disgrace, that every honourable impulse at once forsook their bosoms, and they betook themselves to flight and to howling. We entertain no anxiety about the character of our countrymen in Portugal, when we contemplate their meeting the bayonets of Massena’s troops, – but we must own that we should tremble for the result, were the French general to dispatch against them a few hundred drummers, each brandishing a cat-o’-nine-tails.”

From reading which, it can be seen that the article was hardly subversive; the writer exhibited the required patriotism and support for Britain’s war on France, but only questioned the morality wisdom of flogging men nearly to death and its effect on morale. But suggesting that men would prefer to serve in the French army than the British was way too much for the authorities in time of war, when maintaining military discipline and the covenant of the British nation with the army was crucial. There had been a history of dissent against the long war against revolutionary/Napoleonic France, from radicals inspired by the French Revolution, from crowds enraged at methods of forced recruitment, from a population war weary and hungry, and not least from the Irish and Scots, the Irish in particular feeling the British lash on them selves (not forgetting that huge swathes of the British army were recruited in Ireland and Scotland.) There had been mutinies in the navy in 1797; felt (with not so much justification in fact) to have been whipped up by radicals. Soldiers and sailors had been involved in the various abortive radical plots at revolution in 1798-1802… Encouraging dissent in the ranks could have been very dangerous for the stretched and nervous British imperial war effort.

The Hunts’ trial for seditious libel took place in the Court of the King’s Bench, on February 22, 1811, before Lord Ellenborough, Ellenborough, the president of the Court of the King’s Bench (and, ironically, a fan of Hunt’s teen poetry volume, Juvenilia). Prosecuting, the Attorney-General, Sir Vicary Gibbs, (whose remarks had sparked the original Stamford article) argued that the article constituted ‘inflammatory libel’, likely to encourage military disaffection. Prominent pro-reform journalist William Cobbett had been found guilty of treasonous libel in June 1810 after objecting in his Political Register to the flogging at Ely of local militiamen, and sentenced to two years’ imprisonment in Newgate Prison. The government was hoping for a similar result; Gibbs made reference to Cobbett’s case in his opening remarks, and drew direct parallels between the cases.

The Hunts were defended by a young Scottish lawyer, Henry Brougham, an opponent of slavery and Whig politician and advocate of political reform (later Lord High Chancellor and an architect of the 1832 Reform Act). In court Brougham argued that there was a right to free discussion on public matters such as this, and condemned the brutality of the military authorities in using flogging for control and discipline. The jury was sympathetic and despite a heavily biased and hostile summing up from judge Ellenborough, the Hunt brothers were quickly acquitted.
However, a corresponding trial of the publishers of the original paper in Stamford resulted in conviction, although Brougham argued similarly in that trial.

A few years later, another article in the Examiner would get the Hunts into even bigger trouble, and this time, they wouldn’t escape prison. After he wrote an article in the Examiner calling the Prince Regent ‘a corpulent man of fifty… a violator of his word, a libertine over head and ears in disgrace, a despiser of domestic ties the companion of gamblers and demireps, a man who has just closed half a century without one single claim on the gratitude of his country or the respect of posterity’, he and John Hunt were prosecuted again for seditious libel, and despite another robust defence from Brougham, were convicted. Lord Ellenborough again presided, and revelled in his revenge for their earlier escape, sending them to prison for two years.

Hunt continued to edit The Examiner from prison, and entertained some of the most famous literary figures of the time while inside, including Lord Byron and Maria Edgeworth.

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