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COMPLETE COLLECTION
OF
State Trials
AND
PROCEEDINGS FOR HIGH TREASON AND OTHEai
CRIMES AND MISDEMEANORS
FROM THE
EARLIEST PERIOD TO THE YEAR 1783,
«
WITH KOTES AXD OTHER ILLUSTRATIONS:
0OMPIL£I) BY
T. B. HOWELL, Esq. F.R.S. F.S.A.
-^ INCLUDING,
IN ADDITION TO THE WHOLE OF THE MATTER CONTAINED IN THE
I
FOLIO EDITION OF HARGRAVE,
WPWAIBLDS OF TWO HUNDRED CASES X EVER BEFORE COLLECTED;
TO WHICH IS SUBJOINED
A Table of Parallel Reference,
EIBDEBIIIO THIS EDITION APPLICABLE TO THOSE BOOKS OF AUTHORITY IN WHICH REFERENCES ARE MADE TO THE FOLIO EDITION.
IN TWENTY-ONE VOLUMES.
VOL. XXL
18—19 GEORGE lU 1778—1779.
LONDON:
Vrwud by 7. C. Hmuard, Peterborviigk-Cwrt^ FUetStreet :
LONGMAN, HURST, R££S, ORME, and BROWN ; J. M. RICHARDSON ; BLACK, PARBURY, anb ALLEN; BALDWIN, CRADOCK, akd JOY; £. JEFFERY; J. HATOBbARD; R. H. EVANS; J. BOOKER; £. LLOYD; J. J300TU; BUDD aAd CALKIN; AND T. C. HANSARD.
1816.
UBRAffYOFTHE AUG 27 1900
TABLE OF CONTENTS
TO
VOLUME XXI.
REIGN OF KING GEORGE THE THIRD.
KB. The Case of the ROYAL HOSPITAL for SEAMEN at GREENWICH, in relation to alleged Mismanagement and Abuses therein; and Proceedings against Captain THOMAS BAILLIE, Lieutenant-Governor of the said Hospital, under a Prosecution for a Libel upon certain other Officers of the 6ame«
A. D. 1778-1779 : 1
fond wk Addenda.)
563. The Proceedings at large on the Trial of GEORGE GORDON,
esq. commonly called Lord GEORGE GORDON, for High Treason, in the Court of King*s-Bench, Westminster, a. d, 1781 485 (and vide Addenda.)
4
564. The Trial of FRANCIS HENRY DE LA MOTTE, for High
Treason, a. d. 1781 687
«
565. The Trial of DAVID TYRIE, for High Treason, at the Assizes at
Wmchester, a.d. 1782 815
566- The whole Proceedings on an Indictment in the Case of the KING, on the Prosecution of WILLIAM JONES, gent, against tlie Rer. WILLIAM DAVIES SHIPLEY, Dean of St. Asaph, for a Seditious Libel, at the Great Session held at Wrexham, for the
<
County of Denbigh, at the Assizes for the County of Salop, and
in the Court of King's-Bench at Westminster, a. d. 1783-1784... 847
667. Proceedings against GEORGE STRATTON, HENRY BROOKE, CHARLES FLOYER, and GEORGE MACKAY, es^rs. on an
TABLE OF CONTENTS.
Infonnation filed against them, by his Majesty's Attorney Gene- ral, for a Misdemeanor, in arresting, imprisoning, and deposing Greorge Lord Pigot, Commander in Chief of the Forces in Fort St. George, and President and Governor of the P&*esrdency and Settlement of Madras, in the East Indies, a. d. 1779-1780. [Never before published] ...•• 1045
r
ADDENDA.
I. lb the Case of Captain Baillix.
« In the Will of John Barnard^ (son to the late patriotic sir John Barnard, many years &ther of the city of London) late of the Parish of St. George, Hanover-Square, in the county of Middlesex, esquire, deceased, dated the 6th of November, 1779, among other things therein contained^ is as follows : ' I give to captain Thomas Baillie^ late ' deputy-governor of Greenwich Hospital, five hundred pounds, as a small token of my
* approbation of his worthy and disinterested, though ineffectual, endeavours to rescue
* that noble national chanty from the rapacious hands of the basest and most wicked of
* mankind.'" New Annual Register for 1764 (Principal Occurrences, p. 97.)
II. To the Case of Lord Georqe Gordon.
liord George Gordon published a curious (and, as \ have reason to believe, a true) account of some of his strange proceedings connected with the transactions out of which this Trial arose. The title of his publicaUon was, '' Innocence Vindicated, and the Intrigues of Popeiy and its Abettors displayed in an Authentic Narrative of some transactions, hiUierto unknown, rektting to a late Act of the Britbh Legislature in fiivour of English Frists, and the Petiticm presented to Parliament for its Repeal.''
In this case of Lord George Gordon were first exercised the privileges granted by Stat 7 Ann. c. 21, to persons indicted for High Treason. See East's Pleas of tiie Crown, chap, d, sect, 4S ; and p. 648 of this volume.
III. To the Case of the Dean of St. Asaph.
Of the Richmond Park business mentioned p. 858, see Vol. SO, p. 1389, and else- where.
PARLIAMENTARY WORKS. n^HE PARLIAMENTARY DEBATES, FROM
-■■ THE YEAR IB03 DOWN TO THE PRESENT TIME j feimiog a CoDtinu4tion of the Work entitled, ** The PAR- LIAMENTARY HISTORY OP Emglakd, from the earliest Period to the Year 1803," publithed under the Saperintendenee of T. C HANSAIip.
The Sttbacribert are informed that Volume XXVIl. of the above Work, comprising the Debates in both Houses from the Opening of the Session, November 4, 1813, to June 6, 1814, may be had of their respective Booksellen.— Ptfter^p* Courtp t^ltt Auguti IBU.
^i^"* Complete Sets of the Work, in 97 Volumes, may be had. The Debates of the present Session will be completed as speedily as possible ; ail CommmiicationB forwarded to Mr. T. C Hansard will be attended tOi
npHE PARLIAMENTARY HISTORY or ENG-
^ LAND, from* the Earliest Period to the Year 1803, from, which last mentioned epoch it is continued downwards to the present time in the Woric entitled, *' The PARLIAMENTARY DEBATES," pablished under the Superintendence of T. C. HANSARD.
The Twenty-Second Volume is ready for delivery, bringing the Parliamentary History of England down to May 1*788.
Printed for Longman, Hant,'naes, Ormey and Brown; J. Richardson; Black, Parry, and Co.; J. Hatcbard; J. Ridg- way; E. Jeffiery; J, Booker; J. Rodwell; Cradock and Joy; lUH. Evans jBudd and Calkin; J.Bootb; and T. C. HamanL
A COMPLETE COLLECTION
OF
STATE TRIALS.
\_ W '_-
m»m»^m
ihto-^B>^MHMbMMMli*i
5G2. The CikSE of the Royal Hospital for Seamen at Greenwich^ ia relation to alleged Mismanagement ^and Abuses thereof; and of Captain Thomas Bailue^ Lieutenant^overnor of the said Hospital^ under a Prosecution for a Libel upon certain other Officers of the san»e : 18 & 19 George III- a. d. 1778, 1779.*
{The following particulars I have extracted from Captain Baillie's ** Introduction to the Procecdmgs in the Court of King's-bench,"
Captain BaiUie prepared and caused to be
Sinted, a book entitled, <<Thc Case and emoriai of the Royal Hospital for Sea- men at Greenwich, Addressed to the Go- vernors and Commissioners thereof.*' The « Case" I have not seen. It was not in- serted in captain Baillie's '* Solemn Ap- peal," *• because," as he states, " it might create fresh disputes, is ver^ long, and the ereater part recapitulated in the KingV Eench and House of Lords." The Memo- rial he exhibits as follows :
' Bxttmeted from " A Solemn Appeal to the Pnb-
lie, from an iojured Officer, Cftptain Bailtie, late
lieateaaDt CSovernor of the Rojal Hoipital for
Seamen at Greenwich ; arising out of a series of aa-
theslic Proceedittga in the Coart of Ring't- bench on
mx Praaecationa against him, for publiaiiing certain
liMft (aa it ams allcf^) in a printed '.<»<tk, entitled,
Tlie Case and Memorial of Greenwic'. <»jipita], ad-
-dressed to the General Qovemoni, in bei -Jf of Dia-
abJed Seamen, Widows, and Children ; aod the Evi-
deoee giren on the subeeqaent Bnqnirj at Ibe bar of
the Hooae of Lords, in conseqaenco of the sereral
Prosecatioas bdng discharged wilh Coats. - London :
Printed for Captain Baillio by JF. Almon, opposite
BaHing^on-hoose, PSocadillj ; and may also he had
of Captain Baillie, at Mr. Roberts, ohioa-man, near
Hatton street, Holtwm. Price two g^aincas, stitched
in sheets, with a fine eag^raring of captain -Baillie, in
measotiato, by Janm Wation/esq. painted by Na-
thaniei Mooe, esq. of the Royal Academy, or aepa-
lale/j, QWi ^lUDM Moh. 1779.*'
VOL. XXI.
To the Commissioners and Governors of the Royal Hospital for Seamen* at Greenwich,
The Memorial of Captain Thomas Bailliei Lieutenant Governor of the said Hos* pital, in behalf of Disabled Seamen, their Wiapws and Children,
Humbly sheweth ;
That through the various abuses set forth in the Case prefixed, the British navy has been deprived of the full benefit of this wise and munificent establishment^ which the generosity of princes, and the grati* tude of the public, had bestowed.
That landmen have been introduced into the Hospital, contrary to the charter and ta the spirit of the institution; and that some of the principal wards have been torn down, and converted, at a great cxpence, into grand apartments for omcers, clerks, depu<* ties and servants, who are not seamen.
That several thousand pounds are annually expended in repairs and alterations, under the pretext of nnishing or carrying on the building, though it is already sufficiently grand, roomy and convenient.
That the settled and ample revenues of the Hospital being wastea by this and other improper means, the present managers, sheltering themselves under the popular character of the poor defenceless men under their care, make frequent applica- tion to parliament for the public money, which they squander in a manner that has no tendency to promote the welfare of th€ pensioners or ot the sea-service. B
S]
18 GEORGE in.
The Cate ofCajfidn Thouuu BaSlte,
t*
That tlie pensioners are fed with bull-bee/, < and sour -small beer mixed with water.
That the contracting butcher, after having been convicted in a public court of justice (the King*s-bench) of various fraudulent breaches of his contract, was, on a second prosecution, suffered to compound the pe- nalties, and renew the contract : and tnat many evident and injurious abuses in the supply of other necessaries are daily suffer- ed without any due enquiry.
That under pretence of raisins a charity stock for the boys in the Hospital, the pensioners are deprived of at least 2,500/. per annum out of their frugal allowance of provisions, &c. settled at the first establishment, and are compelled to accept of a part of the value in money; which causes frequent drunkenness, irregularity and disobedience.
That these enormous abuses are the effects of the total subversion which the due go- vernment of the Hospital has imdergonc, arising from the inattention of the great and respeciable characters who were ap- pointed its perpetual ^^uacrdians : and that the acting directors, being in general con- cerned in the receipt and expenditure of tlie revenues, are therefore improperly en- trusted with the care of controuling the accounts, and of directing the affairs of the Hospital; yet that these men have, by .successive encroachments, extended the proper powers of the board of directors, andf taken upon them a great part of the government of the house, in tne exercise -of which they are deaf to every expostular tion or complaint, however reasonable in itself, or regularly urged.
That a faction, under the title of the Civil In- terest, is maintained in the Hospital, which consists of such officers, under officers, de- puties, clerks and servants, as are not sea- laring men, and who are therefore illegally apppinted; which faction has kept the Hospital in a state of confusion and disorder for several years : and there is no pretence of right or necessity for their continuing in offices to which seamen alone have any flaim, there being many brave men fully qualified to execute the business of these offices, who, afler having fought the battles of their country, are now in a state of po- verty and want
That, independent of the obvious reflections suggested by justice and humanity on this occasion, the manner in which the pen- sioners are supported in Greenwich Hospi- tal is a material subject of political consi- deration; particularly at this interesting period, when the endeavours to obtain vo- lunteers for the navy are unsuccessful.
, Were a residence in tlie Hospital consi- dered by seamen in general as a desirable object, it would have an evident tendency to lessen their reluctance for his majesty^s service, as the loss of temporary advan- tages, or the dread of approaching hard-
ships, can only be balanced by the hope of spending a comfortable old. age. Now, tne Hospital is so far fi?om answering this valuable purpose at present, that it is men- tioned among seamen with disgust and dissatisfaction.
Till some effectual means are taken to re- move this opinion, the material object of the foundation is entirely subverted, and the Hospital become an useless and ex- pensive Durden to the nation. This can only be done by an entire change in the management, and by ^thfully and honest- Iv expending the ample revenues in the due maintenance of s«amen onlv. The news of such a general reform in the affiurs of Greenwich Hospital would' be received in the navy with joy and gratitude.
The lieutenant governor thinks it necessary to represent, Oiat in this application to the several members of the court of commis- sioners and governors, he "has no interests for which he can hope or fear on his own account : he was placed in the Hospital b j lord Anson, after a life of active service, with a view, as he presumes, that he might pass his remaining days in peace and re- tirement ; but the sixteen years which he has spent in the Hospital have been the most painful, harassing, and disa^eeable of his whole life, as he has, during the greatest part of this term, been inevitably engaged in disputes and litigation with joboers, agents and contractors, and in op-, posing the civil interest of this naval Hos- pital, with whom he never had any other point to carry, than that the pensioners should be peaceably and comfortably main- tained, agreeably to the intention of the founders, and to the establishment of the Hospital.
That the contest, so far as he is concerned in it, must,' in the course of nature, be now nearly finished ; but it appears to him an indispensable duty, to state the leading circumstances of the atrocious facts which have been committed during his residence in the Hospital, to those who are in pos* session of tlie legal powers necessary for the speedy removal of the several causes of complamt herein recited, — in order that the ineffectual struggle which lie has hi- therto maintained may not be urged as an example to deter his successors from the performance of their duty. The threat of this appeal, though on many occasions it had produced salutarv effects, has however lately been disiegarded, from an opinion that It would never be made. It thereforo became necessary that it should be actual- ly made ; and, though some parts of the prefixed Case may seem rather tedious in the recital, yet the whole is confined to real instances of fraud, collusion, and inca- pacity, all of which can be proved by the . clearest and most indisputable evidence.
The lieutenant governor takes the liberty to
5] respecting the Royal Hosfital at Greenwich. A. D. 1778.
[6
viTgef ID the most earnest nuurner, his aniious hope, that these complaints may excite a necessary degree of attention in the several great and noble personages to whom they are now addressed ; that a full court of commbsioners and governors may be held, by whom these several charges mav be heard and examined, the present evils redressed, and effectual means de- vised for restoring the Hospital to the navy, and for the proper maintenance of seamen therein. When have the interests of Bri- tain been deserted, or her defence neglect^ ed, by her navy ? — It cannot be supposed, that a complamt of this magnituue, and importsince to seamen worn out and dis- abled in the service, can in this country be urged in vain.
Amonsst the leadine measures to be adopted for we re-establishment of the Hospital, it will be necessary,
Hxat the sixpenny receiver from seamen's wages^ the accomptant and comptroller of the sixpenny-office, the several prize- agents, surveyor, and chaplain, be removed from the direction ; and a rule made, that their successors be never in future appoint- ed directors of Greenwich Hospital.
that persons of respectable and mdependent characters be appointed in their room, under such regulations as may be judged sufficient to induce and oblige them to atr tend the important objects of their duty ; and they be made responsible for the due execution of the trust. With respect to the present direction, the old proverb, that eveiy body's business is nobody's^ seems to be truly verified.
That instead of the great number of gover- nors, and the twenty-four directors, if five commissioners were appointed, at 500/. per annum each, for the sole care of receiving, and ^thfully and frugally expending, the ample revenues of the Hospital, the poor men might be nobly provided with every necessai^ article of life, and more tlian the salary of such commissioners saved out of unnecessary works, repairs and alterations, in which case the Hospital would probably in a few years be restored to its proper de- gree of estimation and use.
That if the present unwieldy body of gover- nors, commissioners and directors, should not be reduced to five commissioners, two of the captains be restored to the direction, of which their predecessors were deprived for being strenuous in the noble cause of protecting the seamen under their care.
Ttuit the internal government of the whole house be restored to tlie governor and council : that this council do consist of the deputy governor, the four captains, and onJv four, instead of the eight lieutenants : aod that the secretary, steward, and chap- lains, be removed therefrom, to prevent the forming of parties to embarrass and put-vote the principal officers pf the house,
whenever thev think proper to appear in council, thereby disturbing the peace and good government of the Hospital, for which the superior, and not the inferior officers, are responsible. That the two chaplains, the secretary^ steward, and auditor, with several under- officers, deputies and servants, who have not been sea-faring men, and whose ap- pointments are therefore illegal, be dis- charged the Hospital ; and that navy chap- lains, and other warrant officers, &c. be appointed in their room. That two of the three matrons, not beinz the widows of sea-officers, be removed from the Hospital, and proper objects appointed ii^ their stead, as tnere are now the widows of twenty-four officers of different ranks* serving in the mean capacity of common nurses under these matrons. That Greenwich Hospital be, for the future, preserved, inviolably and exclusively, for the navy^ as an asylum' for disabled sea- men, their widows and children ; and that, for their better securitv, the charter (in which several essential words, and even clauses of the old commissions are omitted) be surrendered to his majesty, and an hum- ble petition presented for a new one, mort consonant to the old commissions. That the apartpients of the several officers who have no concern with the internal bu- siness or government of the house be re- stored to the Hospital, they having no bu- siness but with the court of directors, of which the principal meetings are held in London. That the Roval Sovereign ward, in kino; WiU Ham's building, now possessed by the se-< cretary's clerk, be restored to the pea- sioners. That the office of clerk of the works, being an useless office, be abolished, as there can be no plea of necessity for such an officer, whilst there is a surveyor, and no new buildings carried on : that the present clerk of the works be obliged to surrender to the wards the suite of apartments be possesses, and to restore the posts and rails, which out of mere caprice were lately destroyed, though erected, at a considerable expence, round all the outer walls of the Hospital^ for the safety, ease, and comfort, of^ the blind, lame, and infirm pensioners, who are now frequently hemmed in between two walls, to their great terror, and at the risk of their lives from droves of horned cattle^ horses, &c. These walks, which were for- merly called the Blind Men's Walks, are now become common nuisances %o people of all ranks who visit the. Hospital.* That the apartments of the lieutenants Gor^ don and Kerr, of the clerk of the cheque^
* These posts aod vnils extended netrly one mile, and were erected on accoont of a poor pensioiier being kijk4 oA the jipot by a oar^^Orig. Ed.
n
18 GEOtlGfE IIL The Case of Captain Tkonuu SaHHef
c*
and of two of the matronB, be restored to ihe wards ; and that lodgings be 'found for ihem in the apartments of the non-qualified officers, or in the new building now occu- pied by the governor's clerk, steward's clerky and a person called the clerk of the works' clerk. That the clerk of the cheque's clerk's apart-
nient be restored to the wards. That all the public passages, windows, doors, and stair-cases, which nave been monopo- lized, be thrown open for the convenience of the officers and strangers who visit the wards, and for the admission of fresh sdr, which is so necessary to the health of the numerous inhabitants. The stair-cases now in use are narrow and dangerous, and, in case of fire, would be insufficient for the retreat of a crowd of people, as some of the principal wards are1>arricadoed up at both ends tor the ifiagnificent accommodation cf individuals, who have converted the grand passages into galleries for pictures, and the roof into lodging-rooms with chimnies, where none were originally de- signed. That the butler's list and chalk-off list, which are so hostile to the establishment, be to- tally abolished ; and that the tables in the dimne-halls be filled with pensioners, and served with their full allowance of provi- sions ; it being intended, according to the rules of the house, that they should dine in public, as a spectacle for the encourage- ment of seamen. The soup-maiere now served to the men 'dishonours the nospital, and was publicly ridiculed in the dining- hall by his excellency the Due de Niver- nois. That such of the pensioners and nurses, as from age, hnfirmities, or other reasonable causes, shall be put on the money-list by the governor and council, and not by the directors, may receive the flill value of their provisions ; and that the late order procured by the secretary from the general court, to empower the directors to dispense with the mustering the pensioners on cer- tain occasions, be rescinded, as being re- pugnant to the charter, and infringing upon the government of the house, and the custom ofthe Hospital. That the charity stock be thrown into the general iund of the Hospital, and such boj^s as inay be judged proper objects of this charity be better fed than at present, tid a growing boy requires at least as much sustenance as an old man. That the pensioners and nurses on the mo- tiey-list shall not be deprived of their fes- tival dinners ; which is an extra-gift to all without distinction, in commemoration of the five great anniversaries. The royal founder^s coronation,-^king's birth- day,—queen's birth-day, — accession, and < the coronation. The noa-eiyoyment 6f these dap of mirth
and festivity is a r^ gri^ante to three or four hundred poo^ people. That two lieutenants ne present at the dining- halls, at dinner ; and that the chaplain of the month say grace, instead of an old pfcn-
sionet. That the captam or lieutenant of the wcelt do always see ^e meat delivered send weighed, agreeably to a former minute of the cotin* cil, in order to increase the present checksy which have been found insufficient. Thia laudable regulation has been Ijrtely over- ruled. That the steward's clctk be never in fixture allowed to .perform the duty of the clerk ofthe council. That the secretary make all the contracts, as formerly, agreeable to established forms, in order to avoid the great expence of attor- ney's bills ; and that he be not permitted to make a bill for travelFing charges, being allowed 20/. a year for that purpose. That the stewards of the Derwentwater es- tate, and the receiver of the sixpences, be obliged to remit to the treasurer and re- ceiver-general all such rtoney as thfey may receive on account of the Hospital, as soon as it shall amount to the sum of 50or in order that there may be but one treasurer: and that the board of directors be not al- lowed to extend their prooer powers by impresting, or advancing large sums of money to contractors or tradesmen, as the warrants for the payment of all monies ought to be signed quarterly at the gencjral , court.
That all admeasurements of the works ofthe Hospital be made with the assistance of a sworn surveyor ; and that all the works, alterations, and repairs, be sworn to before the barons of the Excheauer, by the sur- veyor of the Hospital, the clerk of the . check, and the clerk of the works, as hav- ing been faithfuUv and truly performed, according to the best of their skill and judgment ; in conformity to a minute of the board of directors in the year 17 18, and to the custom of those times when the af^ fairs^of the Hospital were conducted with integrity. That tne steward be sworn to all his accounts and disbursements, being near 30,000/. pet annum. That the receiver of the sixpenny office (as well as his clerk) be sworn to his accoimts and disbursements. That the brewer be sworn to the faithful and frus:al expenditure of the malt and hops ^ and that, if any beer be condemned on a regular survey, the value of good beer be deducted out of his wages. That the houshold and other accounts of tha Hospital be examined at the table where the board of directors sit, and not partially and superficially passed by two interested members, at a separate table; and that five of the directors, afler proper exatnitiar
9} retpeOing the Rojfti Hospkal ai Greirmch*
tkxi, do attest the »aid aceoonts with their names ^\ length, instead of the initial let- ters of two names only. Thai ail the accounts and disbursements of the Hospital be sworn to, before the ba- rons of the Exchequer ; which is now per- formed partially.
That the auditor be obliged to audit aM the accounts of the Hospital.
That the pay of the lieutenants be made etjiial to the pay of the two chaplains, as onginaliy intended.
That the general courts be held four times at least in the year, agreeably to the first commissions, the busmess of this court be- ing much increased: that due notice of the several meetings be given in the Ga- zette, and the business made as public as possible, instead of beine privately passed. It behig a matter of pubhc concern.
That these courts be held in the Painted-hall in the Hospital, in order to add to the splendour of the meetings, by accommo^ datiDg a sufficient immber of great per- sonages, for the more effectual protection of seamen, their widows and children.
All Which premises are most humbly sub- mitted to the wisdoih and humanity of the ri^t honourable the lords and other com- missioners and governors of the royal Hos- pital for seamen at Greenwich (who are the guardians and guarantees of the rights of seamen in the said royal Hospital, and who alone are able to give the poor pen- doiicrs speedy and effectual reliet) by tneir most respectnil and faithful servant,
Thomas BxrLLit.
On March 7th, 177S, captain fisullie laid be- fore the earl of Sandwich, at that time first lord of the Admiralty, a copy of the said book, together with the following Letter :
To the Rieht Honourable the Earl of Sand- :h, a/duressed on his Majesty's Service.
As your lordship has hitherto been disposed to hear only one side of the affairs of Greenwich Hospital, I take the liberty to enclose for your lordship's consideration, a State of Facts, which I trust will stimulate your lordship to redress the grievances therein complained of, and thereby restore me to my proper command in the f iospita), of which I have been deprived by a combi- nation of landmen, who, if they had any right to a footing in the Hospital, can have no pretence to pervert and depose the law- ful government thereof.
I have the honour to acquaint yoiu- lordship, that I will not sit down contented to see the men cheated and myself insulted by priests, clerks or contractors. I think it, however, my duty to forewarn your lord- ship, that if you are any longer deaf to rea- sonable complaints, I shall put this effort for redress into execution, which I should have deferred for a more seasonable oppor-
A.D. mft [1«
tunity^ but the recent oTerbaariifi cMduct of the fiiction, so frequently alladefd «cy in the enclosed Case, has eompelM me to^ stninle for immediate redress. Iwoula not have your lordship inkderstaiicl that I mean to disturb government at thi^ critical time, by applying to Barliament. I scorn the imputation of making any ether appeal than to the body of the commis- sioners and governors of the Hospital, whose boundeii duty it is to hear and re- dress the grievances complained of ; and 1 most sincerely lament that an establish- ment so tnily popular and great, should be so far perverted as to force me to make any appeal. I am, my lord, your lordship'^ most obedient and most humble servant, Royal Hmitaif Oretn- Tho. Baillie. wich, March 7, 1778.
To this Letter captain Baillie received no ai»- swer, but oq March ]6th, it appearing that Mr. Cooke, lord Sandwich's chapl&in, had seen the printed Case several days before, and had mentioned it in many companies^ captain Bailiie then carried copies of the Case and Memorial to several of the go* vernors and commissioners, particularly te the first lord of the treasury (lord North,) the lord president of the council (earl Gower, afterwards marquess of Suftird,) the three secretaries of state, and four ad« inirals.]
In the KiNoVBiifrcH. Monday, November 23, 1778.
The KiMo against Thomas Baillie, Esk]uire, Lieutenant Governor of the Royal Hos- pital at Gitenwich.
XHIS cause came before the Court upoD the following rule being granted on July 7, 1778, viz.
"Tuesday next, after three weeks from the day of the Holy Trinity, in th 18th year of king Georee the third.
'* Kertt. — Upon reading the several aflida« vits of James Stuart, esquire, and two others, the said James Stuart and another, Robert Mylne and another, John Godby and another, John Ibbetson, esq. and another, and of the reverend John Cooke, clerk, and another, it is ordered that the first day of next term be given to Thomas Baillie, esq. to sheW tause why an information or informations should not bb exhibited a^inst him for certain mis- demeanours, in puhiishing certaib scandalous libels, upon notice of. this rule to be given to him in the mean time. — On the motion of Mr. Solicitor General,
" By the Court.^
The joint affidavit of James Stuart^ Thomas Hicks, and the reverend John Cooke, three of the directors, was read, and also the affi- davit of Thomas Baillie, esq. defendant^ in answer to tlieirs; the separate affidavit of James Stuart, as surveyor, was also read, and
"3
18 OEOKGE lit* The Oue of Captain Thomas BaiUie^ [19
the affidavit of Robert Mylne, clerk of the works, was be jiin. But the Court asked, If. all the complainants went through what was aaid with respect to themselves, and being answered. Yes, desired Mr. Bearcroft to pro- ceed in shewing cau5e> and reserve those affi- davits till they were Uiought necessary to be read.
Mr. Bearcrqft :
My lord ; this is an application for leave to file one or more informations against cap- tain Baillie, lieutenant governor of Green- wich Hospital, as the author and publisher of a printed libel, upon the gentlemen who are named in the rule ; three of them as direc- tors of the Hospital, and upon Mr. Stuart, in I ¥rich Hospital.
will be necessaiv, in the first place, fi>r the Court to know the constitution of Greenwich Hospital, so far as it stands at present.
The corporation consists m ^neral of some of the first characters in pomt of rank and ability, in the nation, who are all gover- nors and commissioners, who have a power, if they please to exercise it, of controulin^ and directing every thing, in respect to the management of the Hospital : but as it can- not be supposed, all the persons there named, who are in high situations, and employed in matters of great importance to the state, can attend to the business of the Hospital, in fact, it has happened, that but few of the go- vernors have attended to the afiairs of Green-
the separate character of surveyor of the Hospital. Mr. Mylne as clerk of the works, Hr. Goaby as steward of the Hospital, and Mr. Ibbetson as secretary to the directors, together vnth the reverend Mr. John Cooke as chaplain of the Hospital.
My lord, this rule is for leave to file one or more informations, and, I observed, one of your lordships asked just now, why it was, that separate affidavits were made by the flame )>ersons of matter contained in the same book ? I beg leave to answer, that it was for the p>urpose of adding to the oppression and vexation, which the prosecutors meditated against captain Baillie, because those pur- poses would be better answered by six infor- mations than one ; but Mr. SoUcitor General, with more mercy, though perhaps not a great ' deal more judgment, than nis clients, thought they had a better chance to succeed in one than in six informations. I remember upon his instance, it was, that the motion for the six informations was consolidated into one rale.
My lord, I have no difficulty 'to say, I thought the judgment of the prosecutors very extraordinary, in making this motion ; for by taking this step, it is likely to call down the attention of the public to the transactions in Greenwich Hospital for many years last past : however, upon the present occasion, I find it mv duty to contena before vour lordship, this nue ought to be discharged, and discharged with costs, otherwise the Court will not do justice to captain Baillie, neither will they do that iustice upon the prosecutors of this rule, which they deserve, for daring to make this kind of application. My lord, trom the prin- ciples ofjustice, I apprehend, and have no doubt, the Court will soon believe this printed book, which is now attempted to be prose- cuted as a libel, is so far firom deserving Uiat name, that it tells a tale to the public, which it is fit the public should be acquainted with ; that it is a merit in the party ttiat has stated it; that he has proceeded in all the circum- stances that have been printed in this book, that does him great credit and honour.
Mv lord, in order for the Court to under- slana the matter now before them at all, it
They have power to hold general courts, and general meetines of governors and com- missioners, in which they give absolute direc- tions, touching any thing they think proper, fiut the immediate business of the Hospital has been constantly done by a body of per- sons, constituted by the charter, and called the directors, and by other persons, witliin the Hospital, called the eovemor and coun- cil ; the departments of Uiese two separate descriptions of men, the directors, and the governor and council, are very different *. it IS the business of the directors to superintend and direct every thing that relates to the re- venue, accounts, contracts, and building, and every thing, in short, that relates to money matters, for the real internal and external interest, if I may so call it, of the Hospital.
It is the business of the governor and coun- cil, who are or ought to be naval officers, to protect the numerous objects of the establish- ment, to direct and controul the internal go- vernment of the Hospital, and see there is good behaviour and proper subordination ob- served therein, and tnat every thing is con- ducted agreeable to the rules of the Hospital ; these are the two separate departments of the' directors, upon the one hand, and the gover- nor and council, upon the other hand.
My client, captain Baillie, in 1761, came into the Hospital, bein^ disabled in the ser- vice of his country, and was a captain upon the establishment, as it is called— about five years ago, he succeeded to the second office, that of lieutenant eovemor ; I beg pardon for saying succeeded, I mean to take away, according to the information I have had, the slander which has been industriously spread against captain Baillie, as if by his proceed* ings, in the course he had taken in the suIk ject before the Court, he had been suspended for ingratitude, or what is called flying in the face of his patrons and benefactors : it was certainly not so— his character has been en- quired into,imd he is found a person as inca- pable as any man living, of being guilty of any baseness.
My lord, I ssud he succeeded, I do not mean that it was an absolute right, but it it so much of course, that the next senior cap^
13] rapedittg ike Royal Hospital al Oreeimkh. A. D. 1778v
tM
taiD, when there becomes a vacancy, should succeed to the office of lieutenant governor, provided there is no objection to his charac- ter; and from the good behaviour of captain Baillie, it seems there never was the least objection to his character or conduct.
Mjr lord, I will first make a few observar tioDs as to the matter whereon these affidavits turn, upon which the application is made to the Court. Still, I fsurly confess to your lord- ships, in this observation, and in almost every one I shall trouble your lordship and the Court with, my chief object is to obtain costs for my client : that this rule will be. discharged, I have not the least doubt ; for if the gentlemen were likelv to succeed to make h absolute, I do not believe any mortal breathing would ever advise them to go for damages, but the circumstances are very ma- terial m respect to costs.
Now they have picked out of this printed Case between fifty and sixty difierept para- mphs ; I will not call them paragraphs, as ibere is hardly a whole one, they are pieces of paragraphs, bits of sentences, half lines, ana iiMie]>endent expressions ; perhaps, I am incorrect in calling them so, because ail these I have spoken of, are general conclusions fiom particular facts and circumstances, that ve precisely, clearly, and pointedly stated in this book.
Your lordship will now see why they chose to pick out the parti<nilar charges that are in Ibe book; tfaoush^I always understood the particular story of a man was a much greater ubel than a general reflection, but they chose to point out a general conclusion of those &cte, to give them an opportunity of doing ^1 they have done ; but they conclude, after tbree or four sentences are picked out — ** These deponents say" (as if every thinjg else was true) *' so far as they tend to crimi- nate us A. B. and C. they are all fiilse.'' Iben the reason is obvious, why they did not pick out the particular charees ; it is, because th^ thought thev might shelter themselves ttooer the general expression, ** So far as they tend to criminate us, they are all false;'' and, I know, thc^' could not state, in this applica- tion to the Court, the particular charges, and do what was incumbent upon them to do— to swear they are false— for they know them to be true.
Those are the observations upon the affi- da^ that have been read, and I call upon Day learned friends to know, whether, in all they have read, this is not the course cx)n- stantly taken, and I submit no other reason oa be given for it. My lord, it is extremely duficolt to attempt it, if*^! was correct enough ^ n^ mstructions to do it, to attend to all the [wticular charges, and answer them se- ^tely ; it would take up an infinite d^ of ^e. It is sufilcient, that two of then: affi- daviu have been read; but I will stote to pur lordship the nature of certain charges, *^ \k »l)^w«^ to those charges; in which
the Court will see sufficient to lead their at**, tention to the other affidavits, when they come to be read, and what are the charges t« which the answers are applied.
Captain BaiUie first of all says in his affi/b davit, and I trust nobody will think it im- proper to state to your lordship, as he lias a proper authority tor so doing, that he has served his king and coimtry for near forty years; that he has risen to the rank he held when he was ap{>oinced to the Hospital, which was considerable, in consequence of hb cou- rage and conduct shewn upon many occa^ sions, which is shortly pointed out, not by any interest or influence, but by e(x>d beha- viour onlv^ recorded at the Admiralty ;• thus he finds himself in the situation of lieutenant governor, who is in truth the' first resident officer of Greenwich Hospital. It is his busi- ness to look daily into the affairs of the Hos- pital, to. see what they are about, and how the seamen are provided for. In this 'situa* tion he tells your lordship, for a considerable time past he observed certain abuses, which when they come to be .attended to, are of a sort and size which not only justifies what he has done upon this case, but that his duty actually called upon him to do it. He sayt that very soon after his appointment he saw a great number of the rooms and the cabins^ which were appropriated for the accommo- dation of the seamen, taken away for the purpose of accommodating landmen, as I see the phrase is in the Hospital; and your lord- ship may see these complaints frequently re- iterated m his printed Case, of its being noto- rious, tliat a ereat number of landmen have of late years Been introduced into the several . places, as officers and servanto of Greenwich Hospital, who by the charter expressly ought not, and in the nature of things, in point of custom and usage, those offices ought to luve been filled with seafaring men. There are a. great number of facts, of the cabins of the
■•-«•■
* See tke foUowiflg LeUer of Mr. ClevelaiMl (late •eorelary to the Adoiiraltj) to captain Baillie, on the 30th March, 1757, whioh happened daring the adaii- niftration of tlw late right hon. eari Tpoiple, at the Admiralty, to whom captain Baillie.waa entirely nn* known.
u
To Captain BatUie, Tular, Spithead.
'* Admiralty Office, March 50, 1757.
" Sir; I hare reoeired and read to my Lordf CommiMionerf of the Adaiiraitj jonr letter of the 98th instant, giring an aooonnt of your haring taken a Freiioh privateer of f 4 gam, belong^g to Harre- de-OrMe; and I am eommanded to aoqoaint yon, that the Nary-board are directed to porohaie the veitel without Iom of time, and to regiater her in the list of the navy, by tho name of the Turtar'a Prise, and to establish the nnmber and nature of gans iha now has, and 160 men in her ; and their lordships hare appointed yoa to oommand her, as a reward for yoor behayioor.
" I am, Sir, your most humble servant,
" J. CLlVaLAND.*
" Satered at tho Adiuralty." Orig. EtL
IS]
It GEORGE ill. Th€
«Q|jiien being Uken away, to inUoduce ;u)d accomoiQ4ate landmen into offices and lodg- \f^ in the Hospital. This shews Mr. Secre- tary Ibbetson's sep^urajte a|)plication might have beep with g^reat propriety made geaerd, it Mis Milder the general head of complaint. I think eieven of the cabins^ were knocked down almost ^bout Uie ppor fellows ears, to fUfkke w aparUnent still more magnificent ^r Mr. Ibhetsoo, aad double that number |br his deik. I cano^.express myself better upon Jthe subjeoty tlum.ov^ of the poor pen- ttoners did upon the occasioip, as he was pulled out of his b^ ftnd hobbling dpwn.s^irs, the old m^ui shook his head and said, '< Ah ! this is very hard indeed ! that so many fighting men should be turned out of their beds for oqe .writing man f ^ I have alrc^y stated to tte Court, a vast number of offices, which were lucrative, s^nd in the hands of seamen foitaerly, jbftve now got into the hands of
landmctn.
In ^ing my duty by my client, I cfmnot help fqllowing his instrucUons. It seems he iias found out that by a most wonderful ope- .cation of fortuitous events, a particul^ jsort of 'men which you find in all these plaoei$, are {freeholders or burgesses of Huntingdon. So fer it is necessary to take jUptice ; for if pot, the whole of the complaint, at least most of *it.is attributed to such kind of proceeding, whi^h a^ccounts for most of the subjects I have>8poken of. C(i¥Tt. What says the charter about it ? Mr. Murphy, It ej^cludes.personi^ that are freeholders or burgesses of all counties, as well as Huntingdon, if not seafadog men ; the words are, '* No officer shall be em- ployed in the Hospital but seafaring men, pr. such who have lost their limbs, or been .otherwise disabled in the sea^service.''
,Qourt, I. doubt .whether they will find a ifciting man taken .notice of th^re'asex- .eludea?
Mr. B^twtr^, Gapt. BailUe says-he was t«Kceftdingly,uawiDing to take the course he did. Heaaya upon his taking notice of the se- vendabuses committed, hethelieut^edvemor and the council did frequently apply to the directors in 9rder to remedy such abuses, but -their applications were in vain, and cold water was thrown on them. He states to vour^lordshipLthat he applied several times m writing to.the First li)rd of the Admiraltv without e^^^Qt; and up^n an iptcrvicw with his lordship at the Admiralty, he was told he would iv>t let business go on; but not con- tent with living his application thus re- jected by the ^First Lord of the Admiralty, captain BaiUie swears he left his printed Case and Memorial sealed up with a letter for lord Baindwich, requesting that his lordship would look into the afiairs of the. Hospital; that on the ninth or tenth day h^ saw his lordship, who abruptly told him» in the presence of Mr. Stephens, the secretary, that he had no compjmds./or hiqa. ,Ailter such recq>tion^
C(Uc of Captain Thomas BailU^f {IjS
and not before, captain B^Uie seeing, and to his honour feeling, as it became him to, do, the injuiies that were daily arising to the ob- jects of his care, thought there was no pos- sible chance of redress, \^uX by applying to the body of the commissioners and governora at lacge, to whom he did apply on the tenth da^. And he swears positively, that his prmtedCase, which these gentlemen that prosecute the rule find to be a Ubel upon them, was printed solely for the purpose of laying before each separate governor add commissioner of the Hospital, the nature, of his complaints, in order to beget an attention m them, and to procure, if possible, by that means an efficient general court, that might inquire into and reform the abuses. This he positively swears was his sole object in com^^ piling, in printing, and delivenne the several copies of those he has dehvered ; which he sweass he delivered only to such governors, to his own counsel, and one or two to his own friends, for their advice and assistance when he was threatened to be attached at law. And I trust, your lordship will find that every se- parate charge of the facts therein mentioned are true, which. alone is an answer to svn ap- pUcation for an information ; but there is not a colour to consider it as a Ubel, because it is a representation of complaints fit to be made to those whose duty it is, and who have au-^ thority to hear and redress them; therefore it is impossible to consider this as a libel.
In the first place, my lord, I take it to be the established practice of this Court in all cases, upon a motion for an information for a libel, to grant a rule of the i|[iformation be true, Uiough in point pf law it is neverthe- less a libel for bemg true; ^ret the Court will not permit them to go on in this extraordi^ nary vniy for an information, especially if your lonuhips find this printed Case was not printed for the purpose of publication to the world, nor for the purpose of exposing parti- cular persons to the public; but for the mere purpose of stating facts in a plain, but in a strong manner ; and it was fit in this case he should state them, as he has in a verv pun- gent manner in many parts of it. If that be the complexion of the business, I trust your loidships will mojst undoubtedly discharge this nue with costs.
Now, my lord, I will go through shortlv, as well as I can, those parts of their affidavit which state the supposed charges upon them, as far as they condescend to particulars at all, and explain very shortly the answer captain Baillie gives to their comiplaint, which an- swer I may once for all say is chiefly thus : that true it is, Idid mean all this you sunpose me to mean in general, and more parUcmarly, and it is all true; and captain Baillie has himself gone through the particulars, and sworn they are absolutely true; and notwilh- stax^ding the padns ^ea at different times tonieventthe officers and pensioners from m£ing a^y viduntacy affidavits^ judd. every
17} respecting the Royal HespUal at Greemanch. A. D. 1778.
CIS
DorUl of Greenwich Hospitai believe they
committed a very great otience asainst the
fa^ powers, and would be punished at proper
opportunity if they did ; yet it is not to be
vondered there were to be found amongst such
gsUant officers and seamen, a great number
of persons who joined with Mr. BatlHe in
proving the truth of the facts of every charge,
which the prosecutors chose to pick out, and
put in their affidavits in their own way, and
upon which they found their application to
the Court.
My lord, the nature of the first charge your lordship finds by the affidavits is, *^ Though there arc twenty-four directors, yet in truth some of them very seldom attend, except for the purpose of presenting or nominating a chanty boy upon the foundation ; that others lekkm interfere in the business, or stay after the secretary has taken notice of their being present, and that only to give a sanction to the |irocecdtngs of the court." This is a sort of tnin| upon the mere stating, every body would nardly believe, but captain Baillie swears it to be true, and if the Itooks of the UosfHtal were referred to, it would appear so : and many of the twenty-four directors hardly ever attend at all, others attend for the pur- Dose of some little emolument to themselves. Your lordships seem surprized that these charges should be stated as tnie, but many of those gentlemen receive ten shillings for their daily attendance ; notwithstanding the chaiter allows that ten shillings, it is given unAer this restriction, to those who shall think reasonable to demand it ; how shame- fiii it is to demand it ! yet the demand is al- wa^'s made.
The directors who chiefly attend, it is stated, are the -wery persons concerned in the receipts and expenditure of the Hospital money ; that is sworn to be true, and it most undoubtedly is so, that the persons usually attending, are those gentlemen who are so nearly concerned. The surveyor of the Hos- pital and receiver of the monthly sixpences from every seaman in the merchant service, and the persons now complaining to this Court, are the persons that usually do attend.
Mr. Baillie says, and insists it is true, that he has very often complained of this, but he has not had any redress at the meeting of the directors, though he is one by virtue of jus ofl&ce ; he also pressed them to enquire into the accounts and the vouchers or the receiver of the sixpences, but Mr. Hicks him- self was always present as a director, and in- terfered and prevented any close examination of those accounts.
He says and swears to the fact of the free- dom of debate being interrupted, and it is notorious h must be so, and there ought to he a freedom of enquiry into the money ex- pended, and into the state of the accounts ; Wl that has been prevented by these acting •Bwclors, those pnersons being present who voce to allow their own acoouQts, and their VOL XXL
presence must have a considerable weiglit when such enquiry was to be made; the Court must see as I do what, must be the consequence. Then it seems Mr. Hicks was never at sea in his life, but is a freeholder of Huntingdonshire.
Court, What is his office ?
Mr. Sol. Gen, Receiver of the sixpenny duty paid by the seamen.
Mr. Bearcroft. With respect to the next observation, nobody will dispute that the agents for prizes ought not to be directors. One very great income for the support of Greenwich Hospital is the prize money that is unclaimed after three years, and at this moment I believe (I don't know whether I am perfectly correct in the sum) tHe prize money unclaimed amounts to 70,CX)0/. and upwards.
Now, my lord, as for the prize-agents, it is not their interest to settle accounts with the Hospital, but to keep the prize-money in their hands. It is the business of the di- rectors to compel those accounts and the payment of the balance, the reason is ob- vious.
Court, How arc the directors made, named, or appointed?
Mr. Bearcroft, They are named by the charter.
Court. How are the vacancies filled up ?
Mr. Murphy, By the Lords of the Ad- miralty.
Mr. Bearcroft, My lord, Mr. Baillie is complained of for having said, in his book, that the independent directors seldom inter- fere, in the business, thoii«^h they happen t^ be present, having found ny experience it is totally useless : this the complainants chuse to suppose relates to them. To this Mr. Baillie answers, with great truth, and some humour, that when he speaks of. the inde- pendent members, he does not mean to speak of the reverend Mr. Cooke, Mr. Stuart, or Mr. Hicks.
Mr- Solicitor General. Mr. Baillie is a di- rector now.
Mr. Bearcroft, He is nothing now, he is suspended from his office, in consequence of the proceedings, at what was called a com- mittee of enquiry. It is wonderful to con- ceive, how it should get into their affidavit, that captain Baillie complains, the commis- sioners and governors at large arc never sum- moned— Is It jiot true ? Your lordship may know it— though you are a governor, yen never had a f^ummons.
Earl of Mansfield, No, I never had.
Mr. Just. Willes, I did not know I was a governor till now.
Mr. Bearcroft, My lord, it is fit all the members of a corporation should be sum- moned, and I am a little astonished it has not created a new place of sumraoner, or something of that sort; it might be worth purchasing perhaps, but nothing of that sort is done. It is, however, a subject' of com- l C
m
18 GEORGE III. The Que of Captain Thomas BaiOie,
[SO
plaint that they had never been summoned.
Court, It would be a large summons, \ perceive, by the charter.
Mr. Bearcroft, Amongst the rest of the ' fisurts there is this one. I see that there is a charge in the supposed libel of a deficiency in one Ellis, the stewarcrs accounts, of three thousand five hundred and fifly odd pounds, and likewise a great (Quantity of stores, to a considerable amount in point of value— this is notoriously tiue — it is sworn to by captain Baillie, as appears by his affidavit, and otners, that this steward Ellis was deficient that sum, and he was permitted to lurk about the office a considerable time without prosecu- tion, or any method taken to get the money ; At last he absconded, and no enquiry was made farther about the matter. This is one of the charges in the book against the direc- tprs, and tlus is literally true, though they are pleased to call it a supposed deSciency. My lord, I forbear, though I see I have notes of many circumstances, not so well worth while to go into, but amongst other things it is fit to attend to tliis charge, that is, that for the emolument of the persons concerned, the pensioners have been served with bad meat of all kinds, and of a very inferior quality; in particular, one charge is stated, and that part of it, I am sure, is tnic ; I am persuaded It is in your lordship's memory, that the con- tracting butcher, Mellish^ I think the name is, who contracted to funiish the best of meat, and to be paid the best price ; whereas it was proved he fiirnished meat of a very in- .ferior kind, such as bull-beef, and putrid veal.
Court. BuU-staf-beef is the phrase for it.
Mr. Bearcrqfl, Your lordship will find tlie breach of contract was a long time before it VfSLa prosecuted, and at last, the penalties were not insisted upon ; and they were, in my ap- prehension, very improperly compoundea; and that same butcher was afterwards con- tracted with, and still supplies the Hospital, though it was known he aealt with the but- chers in the neighbourhood for bad meat of all kinds ; what signifies the contract, if he has in many instances incurred penalties, to a very great amount indeed, by having totally disreg^ded the contract, in supplymg buU and bull-stag beef?
t Court. Wiis he not twice prosecuted?
Mr. Bearcroft. Yes, my lord, my aifidavits prove it, and state that all the particulars are true. Then it states that the apartments of several landmen in offices were enlarged, and a great number of expences incurred to make alterations and additional buildings by no means necessary ; whilst the poor pensioners had besides, bad beef, bad beer, bad washing, bad shoes and stockings ; and to shew the proceedings to be gross to a degree of shame, there is a charge of persons conveying large quantities of water through pipes into the tniall beer, and sworn to be true. There are some paintings in the Hospital, thai are
shewn to strangers and others. It seems they wanted cleaning, and there was 1,000/. paid by the directors, which is a very large sum of money, for ih& purpose of cleaning these pictures ; and when the particidars of the real expence are gone into, it tuhis out that one hundred ana fifly pounds or two hundred pounds, was the expence really and truly incurred, and what was necessary, might have been done for les^, if they had chose it — These arc the sort of complaints that hav^ been enumerated by captain Baillie, which he laid before the first lord of the Admiralty, having frequently applied to the directors la vain : however, it did at last pi'oduce a com- mittee of inquiry^ and that committee acted contrary to the true spirit of such a commit tee ; Mr. Baillie applied to the Board of Ad- miralty for a fair and regular enquiry into the truth of those charees, for the purpose of general reformation. But your lordship will sec by the manner of appointing the coo»- mittee, and permit me to say, by me conduct of those gentlemen, at their several meetinzs^ it was clearly shewn their object was not ^ enquiring into facts for the purpose of redress ing grievances, but their great object was, H they could, to find some charge, ri^bt or wrong, ajrainst Mr. Baillie^ to turn him out of his office in the Hospital — that was tht object of thehr enquiry. Your lordship sees captain Baillie's complaint is against the d^ rectors. Your lordship will be surprised to learn, that when application was made to lord Sandwich for an appointment of disiii* terested persons to make an enquiry, hi« lordship very coolly applied to Mr. Baillie* and desired him to name seven directors ; says Mr« Bfullie, that is strange indeed, m^ complaint is against the directors — it should be governors and commbsioners, that are not directors. Says his lordship, if vou will not name them, I will name them for you, and lord Sandwich appointed seven persons, all of whom are directors, and without makiojg any observations, I will repeat to your lor£ ship who th^ are, and their situation. Th« first person, is sir Meyrick Burrell, of whom I shall say nothing, but that he attended only once, and I verily believe he was heartily ashamed of what was going forwanl, and tlierefore did not attend any more. The next upon the Ust is Mr. Peregrine Gust, wh« attended all the meetings, except the last ; and his absence captain Saillic had reason to regret, for in the course of the sittings of the. committee, when Mr. Baillie complained, and with tmth, that his witnesses were not heard, and he not permitted to prove the se« veral charges in his book, he was interrupted, insulted, and abused by several of the par- ties, particularly by Mr. Mylnei be was call- ed a blackguard and a liar by the reverend Mr. Cooke— Mr. Gust said. Be patient, cap- tain Baillie, I promise you, before this busH ness closes, it will take a great deal of time« youfself and all ^aw wimesset shall be fairly
81] mpeding the Royal Hospital at Greenvsich. A. D. 1779.
[23
inrd; on this account, his absence Mr.
BuiJie had great reason to regret: but to-
nrds the close of the business, on the last dsjy there attended one captain Barker in lus room, and this captain Barker was ex- tremely angry with Mr. Baillie for taking ii|M» ium to doubt, in any instance, of the propriety of the conduct of the directors; aod whenever Mr. Baillie interfered, and de- sired to be heard to prove his allegations, the ttoeral answer of Mr. Barker was this, Why, air, what do you mean, by charging such people as the directors? Their having done a thuig, is proof enough they have done ri^ht SDd proper, and there is no around to im- peach the conduct of such gentlemen as they are, and I will not suffer it : and Mr. Barker was as good as his word, for notwithstanding the promise Mr. Cust n^ade, to hear captain Beilue, he found all of a sudden the busmess dosed, and Mr. Baillie was turned out, and told, the court would sit but one day more, aod that only for the purpose of making a report to the Admiralty, which report captain Baillie never has seen nor knows, but by the effect of it. It seems he has been suspended for some months from his office, his pay and emoluments stopt pendente Ike, This cir- oimatance alose, my lord, would most un- doubtedly, if I was not to apply for costs, render me inexcusable.
Cwrf. Have any of you got the report and Older for his suispension ?
Mr. Ejergratfe. The copy of the report was deared by Mr. Baillie, but it was refused.
Mr. Beararofft. My lord, it is material to state that this captain Barker was a captain ofaooliier, the other persons that attended arc, a Mr. Savary, storekeeper of the ord- nance at Gibraltar: a Mr. Wells, a great shipbuilder, and contractor for the Admi- ral^; a Mr. W. James, now sir Wm. James, a contractor for shipping : and a Mr. Charles Beynolds, fbmaerly a master of a merchant- man. This, my lord, was the nomination of the court of enquiry, and according to what is set forth of their proceedings by the affi- davit of captain Bafllie and Mr. Cowley, it was a mockery of every idea of justice : a feice and a burlesque of justice, and really deserves great censure. I cannot help taking notice of captain Baillie's complaint, for, I think, he has great ground to complain. That upon this' occasion, when he was called upon, though not i>eTmitted to prove the tnith of the charges in his book, he was con- fronted with a counsellor and solicitor, whom, be says, came to collect materials, not for the pabhc good ; but to give a colour to the complaints of individuSs, in order to bring wm before the court of KingVbench ; and ^fawqgfa Mr. Baillie is a very brave man, and not daid of a French captain, your lordship Jill find he was exceedingly intimidated, m- •jed, at the sight; of mv worthy friend, Mr. Morgan: for he found that Mr. Morgan was M only a ooonseHor, but th^t sort of a
counsellor, called a special pleader !-*and reported to be a gentleman of great eminence in that profession ; and I may venture to say^ a great number 6f i>ersons do entertam strange opinions of special pleaders, and take them for very uncommon geniuses. And I dare say, when captain Baillie found himself opposed bv a person so extraordinary, his fears met him ; for Mr. Morgan contrived to prevent his going into any one part of his case— One minute he was told, ' Sir, you are
* not to prove this by such evidence — then^
* you shall not prove that— they are my ' clients, and sliall not be permitted to accuse ' themselves." At which Baillie was totally astonished, and his proofs put an end to.
This is in general the nature of the procee<J^ ings of this committee of enouiry— I dare say,' I have omitted a great numoer of things which appeared upon their proceedings Upon the whole, my lord, I contend this is not a libel ; that captain Baillie, in printing^ this Case, has done no more than his duty, and that duty, as 1 conceive, with decency, and there is not the least foundation for this application.
But, my lord, in consequence of the rule being granted for captain Baillie to shew cause, they have made an affidavit, giving their reason why they did not apply, sooner to the court; they say, they thought it was not proper to make the application, because there was a committee of^ enquiry, to call upon Mr. Baillie to prove, if he could, the several charges contamed in his book. My lord, it is singular, that when these gentle- men themselves are speaking of this court of enquiry, they will not venture to say a word of Its nature or proceedings ; they dare not, I will venture to say, not one of them dared ^ they were very wisely advised to abstain from doing it — th<^ will not dare to swear it was in truth a fair enquiry into the Charges, and that Mr. Baiilie was called upon and heard to prove his charges.
Upon all the circumstances of this case, can there be a doubt this rule will be dis- charged } I am very earnest in hoping it will b^ discharged with costs; if not, the com* plainants will have succeeded in the only ob- ject of their application. 1 have no concep- tion, your lordship will make the rule abso- lute ; for if half a dozen are to join their own purses, and the purse of the ilospital is to be joined with them, in this case thev can- not but prevail in this prosecution, to the en- tire ruin of captain Baillie ; their affidavits requiring such answers, as made the business spread out to a most enormous size : captain Baillie is therefore obliged to give answers to particular charges, unnecessary as they are, and it has not cost him less than three or four hundred pounds upon this occasion.
I conceive, therefore, the court will, for the obvious reasons I have already stated, be of opinion, this rule ought to be discharged, and discharged with costs.
83]
16 GEORGE III. The Case of Captain TJumas Bttillie^ [24
I should have taken up a ereat deal more lime, in proportion to what I nave done, if I had stated all the particulars of the aiBdavils. This is the general outlihe of the case ; and when our affidavits are read, I dare say your lordships will find the case much stronger than I have stated it ; and, I trust, your lord- i»hip willy as justice cannot be done without it, discharge the rule with costs.
Court, How is the court appointed that made this enquiry ; I see it is a court of go- vernors ?
Mr. Murphy, It was appointed by lord Sandwich, and they are all directors as well as governors. ^
Court. I want to know under what autho- rity it was, the committee was appointed ?
Mr. Bearcroft. It was under the authority of a general court of governors, which I should have stated.
Court. It was not any omission.
Mr. Bearcroft, It consisted of about seven- teen governors, out of that number twelve or fourteen of them were directors, and of those very directors, the court of enquiry was named by lord Sandwich himself.
The Affidavit of Thomas Baillie,esq. lieu- tenant governor of Greenwich Hospital, was read, wnich being very long, is here omitted.
Court. I see the tendency of your other af- fidavits ; by this they are of the same ten- dency with what he says.
Mr. Murphy. My lord, they are all very material.
Lord Mamjield. They can be read, when you have stated them, and shewn the mate- riality of them : I shall know better how to attend to them, when I see the use you make of them.
Mr. Hargrove. I am not sufficiently ac- i|uainted with the i^ature of the case, to take it from what has been read, without hear- ing the affidavits read.
Lord Mansfield. I take it from the defend- ant's affidavit, that the others ioin with him in verif^'ing the facts, and Cowley concurring with bim, as to the behaviour of the com- mittee of enquiry ; and when it comes to be ^lore material, to be precise and exact, they will be read ; I shall take it, from Mr. Mur- phy *s opening de bene esacy we may stay till the last day of the term, if we are to read them all.
Mr. Peckham :
May it please your lordships to far vour me in behalf of this much-injured gen- tleman, captain Baillic, who, after forty years service with honour to himself, and glory to his country, is dragged into this court to answer as a criminal, though guilt}' of no other crime than — that which, in the opinion of the directors of Greenwich Hospital, is of the most enormous magnitude ; the crime'Of an honest and conVientio.us discharge of his dijtv.
Had captain Baillie slept in his office ; had he been inattentive to the duties of his star- tion ; nay, had he been guilty of peculatieif , and joined in the generalplunder, he would not nave been brought before your lordships this d^yas a delinquent; but probably womd have been the conndeotial friend of the first lord of the Admiralty, and might even have supplanted the reverend Mr. Cooke in his favour.
It was his duty to endeavour, to the ut- most of his power, to remedy those abuses which called aloud for redress. It is for the faithful discharge of that duty, he is now harrassed with this prosecution, in the vain and idle hope, that in his ruin will be buried that censure and punishment, which they must be. conscious their conduct and their crimes most justly deserve.
My lord, the intention of the establishment of Greenwich Hospital was for seamen — that is the institution. The charter says, ^ All the officers to be appointed in and foMhe said Hospital shall oe seamen only.'' — ^The words are precise and positive, and can be neither explained away nor contradicted.
By the original instrument by which the Hospital was established, the commissioners, governors, and directors, are all to be men of rank, fortune, and ability ; 24 directors are named by the charter, and appointed by the Admiralty, for the external government, so far as it relates to the expenditure of money, the making of contracts for>provbions, and other necessaries ; and a council of naval o& ficers is or ought to be appointed by the Ad- miralty, for the internal government of the house, under the name of " Governor and Council.'' — My client, captain Baillie, as lieu- tenant governor, is by the charter a member of the general court of commissioners and governors, and also a director ; he is likewise a member of the council ; and in the absence of the governor, is chairman of the two last boards, and commanding officer in the Hos- pital.
II<5 was therefore impelled, by every tie of duty, to remedy the abuses he had complain- ed of. Added to this, there are three letters, stated in his printed Case— orders, I may call them— from two different governors, express- ly charging him' to keep a watchful eye upor& the pen-and-ink men, as the governors thought proper to call them.
Captain Baillie perceiving, in everv departs ment of the Hospital^ most shameful plunder and peculation— findms landmen introduced, in express violation of&e charter— the provi- sions intolerable— the men's clothes scantily provided, and upwards of 30,000/. expended m 8 vears in useless alterations, thought he should not do his duty by himself, by the sea- men, and his country, if he did not make those complaints, which as an honest man he was bound to do, and for which every indivi^ dual owes him thanks and reverence.
Th^ Hospital being in ]tbi3 situation, th«
45] respeding the Royal Ilospkai at Greemwch, A. D- 1778.
t25
lieiitenant governor applied, accoidine to the ndoof the house, first to the council: they app]y to the directors, and afterwards to the «ovemor, who pay no attention to his com- plaiats : he then applies to the first lord of the Admirahy, but without efiect: and at kst he presents to him the printed Case, to which he desires an answer ; but after many days were elapsed, he is told, ** No answer mMjJd be given.''
He then appUes to the lords of the Admi- tahy, through the medium of the secretary, with a respectful letter, and his printed Case enclosed — that met with as ill ^ate as his for- mer application ; and captain Baillie then, and not tm then, applied to the commissioners and governors, as the dernier resort, to re- medy those evils.
If the intermediate officers refiised to ad- dress the Admiralty, or ^neral court, captain Baiilie was willing to ^ive as little oiience as possible in doing it hmiself ; for he printed the Case of Greenwich Hospital with the ut- most caution : and he tells you the reason of piinting it was, there were such a number of xxmimissioners and governors, to whom it was necessary to communicate the facts he had stated, that it would have been impossible to have done it in manuscript ; therefore^ as the easiest and best method, he had it pnnted — but, solely with a view that the governors shouM read and digest it, in order that the truth of the several facts therein stated might bemvestigated.
Soon after this publication, as it has been called, had l>een thus delivered, it became necessaiy sonnething should be done; and therefore a mock tribunal was instituted, which they thought proper to call a court of enquiiy^a court in itself illegal, because im- propeny constituted: and, therefore, what- ever was done in it is nothing to the present purpose; for though a general court was called, it was thought expedient to delegate the enquiry to a committee of seven, which seven are directors.
If there had been any gross misbehaviour in the Hospital, and no redress could be ob- tained, the commissioners and governors at large ought to have selected a number of go- vernors of independent fortune and situation, who ^ere not directors. Men of that de- scription would have probed the bu^ness to thairattom; but. instead of those, they were a packed council for the occasion ; and the omn of enquiry consisted of the very delin- quents thenaaelves.
Your lordships vrill be astonished to hear that the committee sat in judgmentupon their own criities, and that those gentlemen were ^rpointed by the first lord of the Admiralty. You find, with an adroitness peculiar to him- ^, he selected a set of men devoted to him ; obligated to him for the very bread tiiey eat, ^ which, in part, arises out of a fund ap- fnipriated for the use of disabled seamen, and i» wki«b the seamen themselves contribute.
How do they proceed? Captain Baillie's witnesses arerefiued to lie heard— he applies to the books, that he may have evidence from those unerring vouchers— the liooks are refused to be opened ---he was browbeat by their counsel, and insulted by their cifvil offi- cers, a set of landmen, in a manner that a gentleman must blush to hear of; Mylne, the clerk of the works, calling; him a black- guard, while Cooke, tiie cliaphun, brands him as a liar. That a clergyman should be so lost to all sense of decency, as to forget that de- corum which more peculiarly belongs to his situation, makes me blush for the profession of which he is so unworthy a member ; but, that a man of low birth, and no education, should talk a language familiar to himself, I neither reprobate nor am surprised at ; yet the directors that sat in the court of enquiry, ousht not to have permitted a brave, honest, ola seaman to have been treated in that shameless way, by men who, from profes- sion or situation, were shielded from his re- sentment.
After the committee had sat some days, Mr. .Cust, their Chairman, who appeared ashamed of their conduct and their cause, withdrew himself from the committee ; and Mr. Barker, a captain of a collier, was called to the chair ; a proper instrument for the in- tended purpose : that man was mean as well as weak enough to say, that he was employ- ed by lord Sandwich, and was to be paid for his labour : the labourer proved himself worthy of his hire ; for, in a few minutes, there was an end of the committee, this ho- nourable man asserting, that evidence was immaterial; that it was libellous to doubt the integrity of the directors; that he,jthere- fore, should close the business, without hear- ing those witnesses of captain Baillie, which Mr. Cust had promised should be heard.
Your lordships will observe, the reason this court was not sooner applied to, in the lan- guage of the prosecutor's affidavits, was, " We could not apply before," because the court of enquiry was not finished : yet there is not a man upon that court of enouiry who dares to say, tne facts charged are disproved, or that any one of the delinquents was not guilty of the crimes imputed to him. It would not perhaps be difficult to guess, at the real reason ; but it is foreign to the present pur- pose. Perhaps a greater man than any of these found himself attacked in another place, where, conscious of the truth of cap- tain Baillie's charges, and of the impossibility of vindicating himself, he thought it would be prudent to avoid the enquiry, by asserting, that it was to undergo a discussion in West- minster-hall. That apology might silence the peers ; and he then, to save his credit, mignt order his minions to prefer this prose- cution, not vrith the hope or success, but to save him from the enquiry he had so much reason to dread. Soon after this manoeuvre had succeeded, and your lordships had be*A
S7]
18 GEORGE HI. The Case of Captain Thomas BaiUie^ [SS
applied to for infbrmations, Mr. Hicks, the sixpenny receiver, who was one of the persons charged by captain Baillie, who is one of his prosecutors, and who sat in judgment upon nim at a general court, where lora Sandwich presided ; at that court, Mr. Hicks proposed, that captain BailUe should be removed from bis employment of lieutenant-governor. The noble lord foi^ot, for a moment, the dignity of his station; and, more like a drunken chairman in a night^cellar than a peer of par- liament, bawls out, ** All you that are of that opinion, hold up your hands.'' They all join- ed in full chorus for suspension ; and every tdirty hand was immediately exalted ; so that, in five minutes, this brave old officer was tried, condemned, and executed.
My lords, this sentence is to captain Bail- lie a very serious business ; for it robs him of 6002. a-year ; and if his wife should become a widow, she loses her pension of 100/. per ann. more : and he now stands before you^ after being worn out in lone and faithfiil services— an honest man indeed, but without a shilling in his pocket !
My lord, it will be necessary to ask your lordship, whether, takine the whole of this Case iojgether — printed tor the expriDss pur- pose or giving information to those who wanted it, in obedience to the dutv he owed bimself and the public — can tliis be called a libel? Is it a libel for a man to do his duty ? Is it a Ubel, for a man to complain to those who have idone the power to redress the grievance ?
If this is to be called a libel^ I doubt not but the lime will come, when a grand jury will baVe informations filed against them, as li- bellers, for the presentments they have been bound in duty to prefer.
I know but of one case in point ; which is the case of the convicted highwayman, who threatened to swear the peace against his jury, for having put him in fear of his life. Having thus considered the Case, as taken to- gether, not to be a libel, let us state the parti- cular parts of it, and see whether any thing can be collected that is libellous. I will not go through a tedious detail of what has been al- ready spoken to ; but will mention some par- ticulars, if there is light sufficient to let me refer to my brief with respect to the joint affidavit of the three directors, the charge is, ^ The directors never presume to exercise their own judgment, but give their votes agreeable to the directions they receive^ — ^'Thereby insinuating'^-^observe the insinua- tions ! that the directors were guilty of fraud ! fmd did not vote according to their con- science !
Is that insinuation iustified by the charge } Does it necessarily follow, that men, who do not exercise their judgment, must act con- trary tothenr conscience, or that they are l^lty of fhuid, because they obey the direc- tums of another ? Are the mandates of loi^ fiaodwich so wkked, tl^at obedience to them
becomes criminal? These wretched affidavit* men appear to me to be the libellers ; not the defendant, who has written the truth.
There b another charge which they have disingenuously construed, but dare not deny ; and have taken only a piece of the paragraph, '^ That (meaning the government of the Hoa* pital) which has been eventually formed, is rather a burlesque upon authority, as nothing can be more absurd than to appoint persons, with all the grave solemnity of rod business, to examine into and controul their own con- duct; to check and point out objections to their own accounts,'' meaning thereby (ms they swear in their affidaviu) that those di* rectors who have accounts to settle, aie guilty of fraud, -and n^igence : does that follow? Certainy not. But the impropriety of such appointments is glaring; and the first , part of the sentence, which they have thought proper to lop oS, expresses it, ^* Thus, iqstead of a government of^ that perfect kind, which might naturally be expected from the anxious care which breaUies tnrough evei^' line of the original instruments by which it is estiU>l]sh- ed, that which has been eventually formed is rather a burlesque upon authority, 6cc, &c.''
Now your lordship sees how the sentence is mutilated, and what false conclusions they have drawn from those premises. There are a great variety of shnilar instances in their affidavits, even to bits of sentences and half^ lines. I wish to read, and to observe upon some of them ; but it is impossible for me to see by this light, and I cannot recollect them with sufficient accuracy, to state them with necessary precision ; therefore I shall content myself witn a few observations to your lord- ship upon the wjiole purport of what the pro- sepitors say, *' So far as the charge tends to criminate me, I deny it." That is the man- ner some charges are treated in — that is the form — ^they swear, this or that is not true ; or, it don't tend to criminate me. With what face then do the gentlemen come here to make the application.
If it does not criminate, why do they make such application ? If it does criminate them, they ought to be indicted for perjury; for all the charges are substantiated beyond a possi- bility of doubt — not only by the affidavit of captain Baillie, but the concurring testimony of at least thirty others.
For example — the facts, with respect to the butcher, cannot be denied. The charge is^ that he who has been convicted, is again em- ployed. Then say they '< This change, so far as It criminates me, is not true." Tne truth of the fact cannot be controverted — then it does not tend to criminate me — If it does not, for what purpose do they come here?— I take upon me to say, upon my veracity, thatevery charge is answered in the way I have now mentioned ; or else they draw their condu* sion, and say, This I deny!— For instance— they state a charge — from that charge, they draw a perverse and &lae oooclusion^-'aaid
0] tx^ectuig tie Rotf^ Hotpkat at Gnmaich. A. D. 1778.
C»
then they say (hoping to impose upon the oooft) ** This we deny,'* referring to their ovn coDcrhision, which is the antecedent, that dicy know to he faiee, and take no notice of the charge which standc uncontradicted.
1 trust these few ohservations aie complete answers to every part of their affidavits : I take upon me to say, there is not a fact in the book, but what is positively proved. There is not a &ct, which they have attempted to deny. I shimld therefore insult the court, if I oMild suppose the rule would not he dis- charged with costs.
My fordy I have ever understood when lenttemea come into this court upon ground- Kss applications, though much more favour- ably circmnstanoed than the present, that< this court will give costs to the adverse party ; ibr it would be extremely hard indeed for an innocent man to be dragged here to answer, at a great expence, a crime which had no exist- ence hut in the maUce of his prosecutors.
Costs have been granted in informations a^iiist justices of the peace, in informations in the nature of a Quo Warranto ; and though those informations differ from the present appUcatioD, yet the amercing the prosecutor in coats is founded on the same immutable law of justice, that the innocent should not be hamssed without reconipence^ and that the wron^ doer should defray the expence he had oocaaioneH.
Who is at the expence of this prosecution } i see many of the prosecutors here : will they* aay it comes out of their own pockets ? I see the solicitor of Greenwich Hospital here, at- tending as their attorney: he likewise is si- lent. Then I am justified in saying the pro- secutors are not to pay^lct them deny it if they dare !
u it pos»ble, my lord, that these men's cxpences shall bedeiraved out of the treasury •f Greenwich Hospital, appropriated to the most praise-worthy purposes, while this im- happy gentleman is to be ruined by paying' his own costs, though he prevails against his prosecutors, who cannot, who dare not, deny the charges?
There is a technical expression used in the law, ^ that every man should come into this court with clean hands." Which of the pro- Mcotors can claim the benefit of the expres- wmf
Is Mr. Hicks^e sixpenny receiver, in that predicament? But enough has been already said of lum, to convince your lordship that he does not come with clean hands.
la what iisht does Mr. Ibhetson appear? — A mere clenc in office, who lifts his hand against a lieutenant of the Hospital, and rtdkes a onvple who was without defence. Hub is not the onlv instance of his crueltv ; fer apoorhelpless old pensioner stands in juds- BMKt aainst him, whom he beat unmerciful- If- wlufe hleeding at his feet ! Are these the dean hands which come for informa- tfatts stained inth the blood of the M,
the impotent and infirm I But let us look at the reverend Mr. Cooke, that worthy leader of these disgraceful scenes, that negociator of every thing that is infamous. 1 am not to ha deterred from my dut^, but will speak of meit as they are ; though I should be ashamed to use such language, if I could not justify every word I shall say of tiiat abandoned man.
It is proved, beyond a posaability of donbt^ that tbb man, who is a director of a great establishment, who ought to have been tha first to prosecute the contracting butcher, for his numberless fiauds on the poor pensioners^ was the man, that was shameless enough to apply to different persons, beggine them to suppress their evidence against that delin- quent. . Can there be a more atrocious act thaa to suborn witnesses in fiivour of that defendant, which, as a director and a {daiqt^ in the cause, he yns bound to bring ta justice?
The rev. Mr. Cooke has been guilty of an- other act, which cries aloud for vengeance^ He told different gentlemen, who wereofficera in the Hospital—*
'* If you are seen with' captain Baillie, lord Sandwich will stop your preferment for it^ and, if he applies to parliament, will expel him the Hospital :^ ano, lest his words should not gain creoit, he stampt it with the sai^ctioa of an oath, saying, * Bv God it is true !"
This is the man wdo is called the confi- dential director of lord Sandwich. I vow to God I am ashamed to hear it. Sure it must be impossible that a noble lord should so far foi^t the dignity of his station, as to be con- nected with such a man, or to descend to such unexampled meanness, as to prevent gentle- men from holding communication with cap- tain Baillie, or wreaten him with ruin, for persevering in his duty.
I will not believe it of the noble lord ; Mr. Cooke must have held this languafc without authority ; and I trust in future he will not enjoy, since he can no longer deserve, the at- tention of lord Sandwich as a confidential firiend.
Mr. Mylne, the clerk of the works, thought proper to call the lieutenant-governor a black- guard, and dared to strike one of the kin^s lieutenants daring the sitting of the commit- tee. A man bom with a trowel in his hand, a bricklayer, struck a gentleman for giving evidence m the court oT enquiry ! Yet these are the men that apply to your lordship, and beg you will nqt discharge the rule; but grant ah information against captain Baillie.
These are the men, my lord, that have acted, I am not ashamed to say, with equal infamy and meanness. If ever men ouffht tu be amerced in costs for bringmg an ill grounded prosecution, they are now before the court.
My lord, it is so dark, it is impossible for me to recur to my notes, to state many things which ought to be stated ; notwithstanding; I hope, fiom what has been already said bgr
31]
18 GEORGE III. The Case afCaplain Ttomas Bailtie, [3S
the gentlemen idio have tpoken, and from the i few observationa I hayeoeen able to make, that your lordships will feel, that this rule •ught to be discharged with costs. fL>>urt adjourned till the next day.]
November 34.
The Hod. Thomat Enkinc :
-My lord ;* I am likewise of counsel for the author of this supposed libel : and if the matter for consideration had been merely a question of private "wrong, in which the inte- rests of society were no farther concerned, than in the protection of the innocent, I snould have thoueht myself well justified, after the very able defence made by the learned gentlemen who have spoken before me, in sparing your lordship, already fi^tigued with the subject, and in leaving my client to the prosecutor's counsel and the judgment of the Court.
But upon an occasion of this serious and dangerous complexion, when a British subject is brought before a court of justice only for having ventured to attack abuses, which owe their continuance to the danger of attacking them ; when, without any motives but bene- yplence, justice, and public spirit, he has ven- tured to attack them though supported by power, and in that department too, where it itas the duty of his office to detect and expose them ; I cannot relinquish the high privilege of defending such a character ; I will not give up even m;^ small share ofiYie honour of repel- ling and of exposing so odious a prosecution.
No man, my lord, respects more than I do the authority of the laws, and I trust I shall not let fall a single word to weaken the ground I mean to tread, by advancing proposition!, which shall oppose or even evade the strictest rules laid down by the Court in questions of this nature. . Indeed, it would be as unnecessary as it would be indecent ; it will be sufficient for me to call vour iordship's attention to the marked and striking difference between the writing before you, and I may Venture to say almost every other, that has been the sub- ject of argument on a rule for a criminal in- formation.
The writings or pubtications, which have been brought before this Court, or before
* la the IntrodoetioD to thit •peeoli id the rsoent- ly published CoUeetion of Lord Bnkine't Specehet, U is stated, ** Mr. Enkioe spoke from the back row of the coart, we beliere for the fint time, ai he had onlj bdeo called to the bar on the last day of the term preceding." The most able and eloquent reviewer of that poblication troly observes, that by this speech Mr. fErskine, intlie very outset of his brilliant career^ aitonislied the legal world by a display of talent which has indeed been outshone, hot by no means ob- scured even by his own riper efforts. See Edinburgh Review, rol. 16. p. 103. I an informed that the espressioBS of delight and admiratioD, which this Speech excited in Wettminsler-hall, have never been paralleled then,
orand juries, as libels on individualsy have been attacks on the characters of private men, by writers stimulated sometimes by resent- ment, sometimes, perhaps, by a mistaken zeal; or they have been severe and unfounded strictures on the characters of public men, proceeding from officious persons taking upon themselves the censorial office, without tem- perance or due information, and without any call of duty to examine into the partfcular de- partment, of which they choose to become the voluntary guardians: a guardianship which they generally content themselves with holding in a newspaper for two or three posts, and then, with a senerouty which. $hines on all tnankind alile, correct eveiy department of the state, and find at the end of their lucubrations, that they themselves are the only honest men in the community. When writers of this description suffer, how- ever we may be occasionally sorry for their misdirected zeal, it is impossible to aigue against the law that censure^ them.
But I beseech your lordship to compare these men and their works, with my chent, and the publication before the Court.
Wiiohkef What is hU duty f What Has he written i To whom has he zcritten f And what motive induced him to write ¥
He is lieutenant governor of the Royal Hospital of Greenwich, a palace built for the reception of aged and disabled men, who have maintain^ the empire of EneUmd on the seas, and into the offices and emoluments of which, by the express words of the charter,, as well as by the evident spirit of the institu- tion, no landmen are to be admitted.
His Duty — in the treble capacity of lieu- tenant governor, director, and a general governor, is, in conjunction with othen^ to watch over the internal economy of this sacred charity, to see that the setting days of these brave and godlike men are spent in comfort and peace, and that the ample revenues, appropriated by this ge- nerous nation to their support, are not per- verted and misapplied.
He has written, that this benevolent and politic institution has degenerated from the system established by its wise and muni- ficent founders ; that its ^oveniors consist indeed of a great number oi illustrious names and reverend characters, but whose different labours and destinations in the most import- ant offices of civil life rendered a deputation indispensably necessary for the ordinary so- vemraent oi the Hospital ; that the difficiuty of convening this splendid corporation had gradually brought the management of its af- fairs more particularly under the direction of the Admiralty ; that a new charter has been surreptitiously obtained, in repugnance to the origmal institution, which enlarges and con- firms that dependence ; that the present first lord of the Admiralty (who lor reasons sufficiently obvious, does not appear pubhdy in this prosecution) has, to serve the base mi
53] ruptcting the Royal Hospital at GrefnmcL A. D. 1?78«
m
watibless purposes of corruption, InUoduced his prastitutea freeholders of Huntingdon into fbces destined for the honest freeholders of the seas ; that these men (among whom are the prosecutors^ are not only landmen, in ddjance of the charter, and wholly dependent op the Admiralty in their views and situar tioQs, but, to the reproach of all order and goTemmenty are suitered to act as directors and officers of Greenwich, whdle they t/ienh- «Aw»hold the very subordinate offices, th^ cmUrol of which is the object of that direo- tion ; and inferring from thence (as a general proposition) that men in such situations can- no^ as human nature is am^itituted, act with that freedom and singleness which their duty requires, he justly attributes to these causes the grievances which his gallant brethren actuuly suffer, and wbich are the generous subject of his complaint.
He has written this, my lord, not to 'the jMie at large, which has no jurisdiction lo reform the abuses he aimplains of^ but tp tkote imfy whose express duty it is to hear ajod to correct them, and I trust they wUl be solemnly heard and corrected. He has not pcBLiSH£o, but only distributed his boolc among the governors, to produce inquiry aod not to calumniate.
The motive which ikduced him to write, and to which I shall by and by claim the more particular attention of the Court, yrs» to prooiice reformation ; a reformation which it was his most pointed dutv^to attempt, which he has laboured with the most ino^ fatigable zeal to accomplish, and against which every other channel was blocked up.
My lord, I will point to the proof of all this : I will show your lordship that it was his duty lo investigate ; that the abuses. he has investigated do really exbt, and arise from the ascribed causes ; that he has pre- sented them to a competent jurisdiction, and not to the public ; and that he was under the indispensable necessity of taking thie s^ep l^e has done to save Greenwich Hospital nom ruin.
Your lordship will observe, by this suImU- vision, that I ao not wbh to form a specious desultory defence: 'because, feeling that every link of such sub-division will in the in- vestigiatioa produce both law and fact in my &vour^ I have spread tlie subject open be- fine the eye of the Court, and invite the strictest scrutiny. Your lordship will lik^ wise observe by this arrangement, that I mean to confine myself to the general linf s 4)f his delence : the various affidavits have already been so s^bly and judiciously com- mented on by my learned l^wiers, to whom I am sure captain Baillie must ever feel him- self under the highest obligations, that poy duty has become narrowed to the province ttf throwing his defence within the closest corooassy tmit it may leave a dibtiAct and de- dded impression.
.4nd lirst, as |p iU beii\g bis Pftrtigifuhr
duty to enquire into the different matter^ which are the subject of his publication, and of the prosecutors' complaint : I believe, my lords, I need say little on this head to con^* vince your lordships, who are vourselves go« vernors of Greenwich Hospital, that thede** fcndant, in the double capacity of lieutenanl
governor and director, is most indispensably ound to superintend ever^ thing that can affect the prosperity of the institution, either in internal economy, or appropriation of re^' venue ; but I cannot help reading two copies of letters from the Admiralty m the year 1742 ; I read tliem from the publication, be-^ cause their authenticity is sworn to by the defendant in his affidavit ; and I read them to show the sense of that board with regard to the right of enquiry and complaint in all officers M the Hospital, even in the depart* ments not allotted to them by their coznmis-' sions.
"To Sir John Jevninos, Governor of Green^
wich Hospital.
" Admiralty-office, April 19, 1748. ^* Sir ; The directors of Greenwich Hospi^ tal having acquainted my lords commis* sioners of the Admiralty, upon complaint made to them, that the men have been de^ frauded of part of their just allowance of broth and pease-soup, by the smallnessof the pewter-disbes, which in their opinion have been artificially beaten fiat, ana that there are other frauds and abuses attending this affiiir, to the prejudice of the j)oor men ; lam commanded by their lordships to desire you to call the officers together in council, and t9' let them know, that their lordships think them very blameable (or suffering, such abuses to be practised, which could not have been done without their extre^me indolence in ^ot looking into the affairs of tli^s Hospital : tha^ their own establishment in Xhp Hospital is for the care and protection pf the poor men, and that it is their duty to lopk daily into every thing, and to reme4y every disorder; and not to discharge themselves hy throwing it upon the under officers and servaniU; an) that their lordships h&ug (de^erjcnine4 ^ 89 to the bottom of this complaint, do charge them to find out and Uifyvm them at whose door the fraud ought tp he laidy that their lordships ma^ five such directions heretfi aa they shall judge proper.— I am. Sir, your most obedient serva^ty Tho. Corbxt/'
'' Admiralty-oAce, Way 7tb, 1742.
" Sir ; M^ lords commissioners of the Ad-r miraliy having referred to the directors of Greenwich Hospital the report made by your-< self and officers of the saia Hospital in cpun^ cil, dated the S3d jpast, relating to the ^t- ness of the pewter dishes made use of to ho^i^ the broth and pease-potU^e served out to the pensioners ; the said directors have returned nither a reply, a copy pf which I am ordere4 to send you f»clQS^4 » ^^y J^^^^ h^xiw m^
D
35]
18 GEORGE III. The Cau ofCapiain Thomas BaUUe, [36
forth s fact which has a very fraudulent appearance, and H imports little bv what means the dishes became shallow ; but if it be true, what they assert, that the dishes hold but little more than half the quantity they ought to do, the poor men must have been greatly injured ; and the allegations in the omcers* report, that the pensioners have made no complaint, does rather aggravate their conduct, m suffering the men's patience to be so lon^ imposed upon.
*' My lords commissioners of the Admi^ ralty do command me to express myself in such a manner as may show their wrath and displeasure at such a proceeding. You will please to communicate this to the officers of the house in council.
' " Their lordships do very well know that the directors have no power but in the mar nagement of the revenue and estates of the Hospital, and in carrying on the works of the building, nor did thev assume any on this occasion; but their lordships shall always take well of them any informations, that tend to rectify any mistakes or omissions whatsoever, concerning the state of the Hos- pital.— I am, Sir, your most obedient servant,
** Tao. Corbet."
^ To Sir John Jennings, Governor of Greenwich Hospital."
I^rom these passages it is plain, that the < Admiralty then was sensible of the danger of abuses in so extensive an institution, that it encouraged complaints from all Quarters, and instantly redressed them ; for although cor- ruption was not then an infant, yet the idea of making a job of Greenwich Hospital never entered her head ; and indeed if it had, she could hardly have found at that time of day, a man with a heart callous enough to consent to such a scheme, or with foreh^d enough to carry it into public execution.
Secondly^ my lord, that the abuses he has investigated do in truth exist, and arise from the ascribed causes.
And, at the word tbuth, I must pause a little to consider, how far it is a defence on a rule of thb kind, and what evidence of the falsehood of the supposed libel the Court expects from prosecutors, before^ it will allow the informatidh to be filed, even where 110 affidavits are produced by the defendant in his exculpation.
That a libel upon an individual is not the less so for being true, I do not, under certain reitrictionsy denv to be law ; nor is it neces- sary for roe to deny it, because this is not a complaint in the oaniKART course op law, but an application to Uie Court to exert an
XCCENTRIC, EXTRAORDINARY, VOLUNTARY JU- RISDICTION, BEYOND THE ORDINARY COURSE
OP JUSTICE ;— a jurisdiction, which I am au- thorized from the best authority to say, this Court 'will not exercise, unless the prose- cutors come PURE AND UNPOLLUTED ; deny- ing upon oath the tn^ of evsiy word and
sentence which they complain of as injuriouse for although, in common cases, the matter may be not the less libellous, because true, yet the Court will not interfere by informa- tion, for guilty or even equivocal characters, but will leave them to its ordinary process. If the Court does not see palpable malice and FALSEHOOD on the part of the defendant, and clear innocence on the part of the prose^ cutor. it will not stir; — it will say, This may be a libel ;— this may deserve punishment; —but go to a grand jury, or bring your ac- tions: all men are equally entitled to the protection of the laws, but all men are not equally entitled to an extraordinary interpo- sition and protection, beyond the common distributive forms of justice.
This is the true constitutional doctrine of informations, and made a strong impression upon me, when delivered by your lordship in this court ; the occasion which produced it was of little consequence, but the principle was important. It was an information moved for by general Plasto against the printer of the Westminster Gazette, for a libel publish- ed in his paper, charging that gentleman, among other things, with having been tried at the Old Bailey for a felony. The prose- cutor^s affidavit denied the charges generally as foul, scandalous, and false ; hut did not traverse the aspersion I have just mentioned a$ a tubstantive fact ; upon which your lord* ship told the counsel [Mr. Dunning], who was too learned to argue against the objec- tion^ that the affidavit was defective in that particular, and should be amended before the Court would even grant a nilc to show cause: for although such general denial would be sufficient where the libellous mat- ter consisted of scurrility, insinuation, and GENERAL abusc, which is no otherwise tra- versable than by innuendoes of the import of the scandal, and a denial of the truth of it, yet that when a libel consisted of direct
AND POSITIVE PACTS AS CHARGES, the CoUTt
required substantive travertet cf tuch facti in the affidavit, before it would' interpose to take the matter from the cognizance of a grand jury.
This is the law of informations^ and by this touchstone I will try the prosecutors' affidavits, to show that they will fall of themselves, even witliout that body of evi- dence, with which I can in a moment over- whelm them.
If the defendant be guilty of anv crime at all, it is for writing tht^ book : and the conclusion of his guilt or innocence must consequently depend on the scope and desijgn of it, the gene- ral truth of it, and the necessity for writing it ; and this conclusion can no otherwise be drawn^ than by taking the whole of it together. Your lordships will not shut your eyes, as these prosecutors expect, to the design and general truth of the book, and eo entirely upon the intulaied passages^ cuUea out, and set heada mi p^iatf inihoir wratcM aSMar
37] reiftedittg the Royal HaspUal ai Greentmch. A. D. 177S.
[3k
nt% without context, or even ao attempt to
onnddJe or explain their sense, or bearing on
the subject; for, my lord, they have altoge-
Ifaer omitted to traverse the scandalous facts
iboDselvesy and have bnlv laid hold of those
warm animadversions, which the recital of
them naturally produced in the mind of an
hooest, zealous man, and which, besides, are
ID many places only conclusions drawn from
&cts as general propositions, and not asper-
sons on them as mdividuaJs. And where
the fzcts do rome home to them as charges,
9ot one of them is denied by the prosecutors. I
astert, umlordy that in the director^ whole qffi-
dsvit (which I have read repeatedly, and with
the greatest attention) there is not any one
fid mentioned by the defendant which is sulh
MsMtisUy denied ; and even when five or six
strong and pointed charges are tacked to each
other, to avoid' meeting naked truth in the
teeth, they are not even contradicted by the
lump, but a general innuendo is pinned to
them all;— a mere illusory averment, that
the &cts mean to criminate them, and that
they are not criminal; but the facts them-
SELVES REMAIIf UN ATTEMPTED AllD UN- TOrCflED.
Thu& my lord, afler reciting in their afB- daTit the charge of their shameful miscon- duct, in renewing the contract with the Hun- tingdon butchers, who had just compounded the penalties incurred by the breach of a fermer contract, and in that breach of con- tact, the breach of every principle of huma- nity, as well as of honesty ; and the charge of putting improper objects of charity into the Hospital, while the lamilies of poor pen- sioners were excluded and starving ; — and of screening delinquents from inquiry and pu- nishment in a pointed and particular instance, and therefore traversable as a substantive /act ; yet not only there is no such traverse, bu^ though all these matters are huddled toge- ther m a mass, there is not even' a general denial; but one loose innuendo, that the facts in the publication are stated with an intention of criminating the prosecutors, and that, as far as they tend to criminate them, ^ey are false.
Will this meet the doctrine laid down by your lordship in the case of general Plasto ? --Who can teU what they mean by criminal lity?— Perhans thev think neglect of duty not criminal,— perhaps they think corrupt Krvility to a patron not criminal ; and that if they do not actively promote abuses, the winking at them is not crmiinal. But I appeal to the Court, whether the directors' whole uBdavit is not a cautious composition to svoid downright perjury, and yet a glaring ahsurdity on the face of it ; for since the facts «w not traversed, the Court must intend them to exist ; and if they do exist, they can- i»t but be criminal. Tlie very existence of wch abuses, in itself criminates those, whose Jpos are to prevent them from existing.
Voder the shelter of 9uch qualifications of
guilt, no man in trust could ever be crimi- nated. But at all events, my lord, since they seem to think that the facts may exist with-> out their criminality, — be it so : the defers dant then does not wish to criminate them ; he wishes only for effectual inquiry and in- formation, that there may be no longer any crimes, and consequently no criminality. But he trusts, in the mean time, and I likewise trust, that, while these facts do exist, the Court will at least desire the prosecutors to clear themselves before the general council of governors, to whom the writing is ad- dressed, and not before any packed committee of directors appointed by a noble lord, and then come back to the Court acquitted of all criminality, or, according to the technical phrase, with clean hands^ Tor protection.
^ Such are the merits of the affidavits exhi- bited by the directors ; and the affidavits of the other persons are, without distinction, subject to tne same observations. They are maae up either of feneral propositions, con- verted into eha(i;es by ridiculous innuendoes, or else of strings of distinct disjointed facts tied together, and explained by one general averment ; and after all — ^the scandal, such as their arbitrary interpretation makes it, is still only denied with the old Jesuitical quali- fication of criminality,— M« facts themselves remaining untraversedj and even untouched.
They are, indeed, every way worthy of their authors ; — of Mr. God by, the good steward, who, notwithstanding the remonstrances of the captain of the week, received for the pen- sioners such food as would be rejected by the idle vagrant poor, and endeavoured to tamper with the cook to conceal it ; and of Mr. Ihhet- son, who converted their wards into apart- ments for himself, and the clerks of clerks^ in the endless subonlination of idleness; — a wretch who has dared, with brutal inhumanity, to strike those aged men, who in their youth would have blasted him with a look. As to Mr. Stuart and Mr. Mylne, Uiough I think them reprehensible for joining in this prosecu- tion, yet they are certainly respectable men, and not at all on a level with the rest, nor has the defendant so reduced them. These two therefore liave in fact no cause of com- plaint, and Heaven knows, the others have no title to complain.
In this enumeration^ of delinquents, the Rev. Mr. Cooke looks round,* as if he thought I had forgottcft him. lie is mis- taken ;— I well remembered him : but his in- famy is worn threadbare : , Mr. Murphy has already treated him with that ridicule, which his folly^ and Mr. Peckham with that invec- tive, which his wickedness deserves. — I shall
* Ilia pMMgo it uAmUA by the nUaterly Bdin- boq^ Reinewer " with a view to ihew, that the coa- rage which marked Lord Enkijie*s profBaaiooal life was not aoqoired after the succeM which rendered it a ttfe and a cheap rirtae ; bat, being natorally in- herent in the nan, was displayed at a moment whea attended with ths «oit fonuidable riihs."
39]
18 GEORGE IIL
I%e
iherefore forbear to taint the ear of the Court further with his name;— a name which would bring dishonour upon his country and its religion, if human nature were not hap-
Sily compelled to bear the greater part of the isgrace, and to share it amongst mankind. But these observations, my lord, are solely confined to the prosecutors' affidavits, and would, I think, be fatal to them, even if they stood uncontroverted. But what will the Court say, when ours are opposed to them, where the truth of every part is sworn to by the defendant ?— What will the Court say to the collateral circumstances in' support of them, where every material charge against the prosecutors is confirmed ? — What will it say to the affidavit that has been made, that no man can come safely to support this in- jured officer ?— that men have teen deprived of their places, and exposed to beggary and ruin, merely for giving evidence of aouses, which have already by bis exertions been proved before your lordship at Guildhall, whilst he himself has been luspended as a beacon for prudence to stand'ftloof from ; so that in this unconstitutional mode of trial, where the law will not lend its process to bring in truth by force^ he might stand un- protected by the voluntary oaths of the only persons who could witness for him*? His character has, indeed, in some measure, broke through all this malice : the love and vene- ration which his honest zeal has justly cfcated, have enabled him to produce the
J)roofs which are filed in court; but many lave hung back, and one withdrew his affi- davit, avowedly from the dread of persecution, even after it was sworn in court. Surely, my lord, this evidence of malice in the leading powers of the Hospital would alone be suffi- cient to destroy their testimony, even when swearing collaterally to facts, m which they were not themselves interested ;-^bow much more when they come as prosecutors, stimu- lated by resentment, and with the hope of covering their patron's misdemeanours and their own, by turning the tables on the de- fendant, and prosecutmg him criminally, to stifle all necessary inquiry into the subject of bis complaints ?
lieutenant Gordon, the first lieutenant of the Hospital^ and the oldest officer in the navy ; lieutenant William Lefevre ; lieute- nant Charles Lefevre. his son; Alexander Moore ; lieutenant William Ansell ; and cap- tain Allright, have all positively sworn, that a faction of Luidmen subsists in the Hospital, a&d that they do in their consciences beUeve, that the defendant drew upon himself the re- sentment of the prosecutors, from his activity in correcting this enormous abuse, and from
* On the tria) of a oanse, evtrj person acquainted xrith an\ iacl is bound, onder pain of 6ne and iiiipri- sonmotit, to attend on a subpoena to give evidence before the court and jury ; but there is do process |u compel any man to make aa affidarit befoiip tbe $ouxU^Orig, Ed.
Case of Captain Thomas Baillie, [<iO
his havme restored the wards, that bad b«en eruelly taSen away firom the poor old men : that on that just occasion the whole body of the pensioners surrounded the apartments of their governor, to testify their gratitude with, acclamations, which sailors never bestow but on men who deserve them. This simple and hpnest tribute was the si^al for all that has followed; the leader or these unfortunate
Seople was turned out of office ; and the a^- avit of Charles Smith is filed in court, which, I thank my God, I have not been able to read without tears ;— how, indeed, could any man, when he swears, that, for this cause - alone, his place was taken from him ; — that he received his dismission when languishing with sickness in the infirmary, the conse* quence of which was, that his unfortunate wife, and several of his helpless, innocent children died in want and misery;— the wo- man ACTUALLY EXPIRING AT THE GATES OP
THE Hospital ! That such wretches should escape chains and a dungeon, is a reproach to humanity, and to all order and govern- ment ; but that they should become prose- cutors, is a degree of effirontery that would not be believed by any man, who did not ac- custom himself to observe the shameless scenes, which the monstrous age we live in is every day producing.
I come now, itty lord, to consider to whom HE has written. — ^This book is not pur- LiSHED. — It was not printed for sale, but for the more commodious distribution among the many persons who are called upon in duty to examine into its contents. If the de- fendant had written it to calumniate, he would have thrown it abroad among the mul- titude : but he swears he wrote it for the attainment of reformation, and therefore confined its circulation to the proper channel, till he saw it was received as a libel, and then he even discontinued that distribution, and only shewed it to his counsel to consider of a defence; — and no better defence can be made, than that the publication was so limited.
My lord, a man cannot be guilty of a libel, who presents grievances before a competent jurisdiction, although the facts he presents should be false ; he may indeed be indicted for a malicious prosecution, and even there a probable cause would protect him, but he can by no construction oe considers as a li- beller.
The case of Lake and King, in 1st Levinz, S40, but which is better reported in 1st Saun- ders, is directly in point ; it was an action for printing a petition to the members of a committee of parliament, charging the plain- tiff with gross hAud in the execution of his office ; I am aware that it was an action on the case, and not a criminal prosecution; but I am prepared to shew your lordship, that the precedent on that account makes the stron^r for us. The truth of the matter^ though part of the plea^ was not the point in
41] rnpeding the koyal HotpHai ol Gneimch. A. D. 1778.
C4S
contest; the justification was the presenting it to 8 proper jurisdiction, and printing it, as m this case, for more Commodious distribu- tion; and it was first of all resolved by the court, that the delivery of the petition to all tbe members of the committee was iustifi- sbie;— and that it was no libel, wheinerthe maUtr contained were true or false, it bting ao appeal in a course of justice, and because the parties, to whom it was addressed, had jnrifdiction to determine the matter: that the intention of the law in prohibiting libels ins to restrain men from making themselves tfaeir own judges, instead of referring the matter to those, whom the constitution had appointed to determine it ;— and that to ad- jodge such reference to be a libel, would dis- courage men from making their inquiries vith that freedom and readiness, which the hw allows, and which the good of society lequires. But it was objected, he could not justify the priktino ; for, by that means, it was published to printers and composers ; but It was answered, and resolved oy the whole court, that the printing, with intent to distribute them among the members of the com- iadfee,was lesal ; and that the making many eopics by clerKs, would have made the matter more pvmlic. I said, my lord, that this being an action on the case, and not an indictment or inforaiation, noade the stronger for us : and I said so, because the action on the case is to redress the party in damans, for the injury be has sustamed as an individual, and wnich be has a rieht to recover, unless the defendant can shew mat the matter is true, or, as in this case, whether true or fiailse, that it is an ap- peal to justice. — ^Now, my lord, if a defen- dant's right to appeal to justice, could^ in the case of take ana King, repel a plaintiff's right to damages, although he was actually damni- fied by me appeal, how much more must it lepel a criminal prosecution, which can be undertaken only for the sake of public justice, when the law says, it is for the benefit of pub- fic justice to make such appeal? And that case went to protect even falsehood, and where the defendant was not particularly caDed upon in duty as an indiviaual to ani- madvert:—how much more shall it protect w^bo were bound to enquire, who have wntten nothing but truth^ and who have ad- dressed what we have wntten to a competent jmiadiction? I come lastly, my lord, to the motives
WHICH IVDrCED Bill TO WRITE.
,Thc g|overnment of Greenwich Hospital is divided mto three departments : the council ; the diiectors ; and the general governors : the defiendant is a member of every one of these, and therefore his duty is universal. Jie CouTf cii. consists of the officers, whose dttU it is to regulate the internal economy JM disctptine of the house, the Hospital wing as it were a large man of war, and the cwncil its commanders; and therefore, these "K&i even by the present mutilated charter,
I ought all to be seamen. Secondly, the di- rectors, whose duty is -merely to coni^em themselves with the appropriation of the re- venue, in Contracting for and superintending supphes, and in keeping up the structure m the Hospital ; and lastly, the general court of governors, Consisting of almost every man in the kingdom with a sounding name of office: a mere nullity, on the members of which no blame of neglect can possibly be laid ; for the 'Hospital might as well have been placed under the tuition of the fixed stars, as under so many illustrious persons, in different and distant departments. From the council^ therefore, appeals and complaints formerly la^r at the Admiralty, the directors having quite a separate duty ; and, as I have shown the Court, the Admiralty encouraged complaints of abuses, and redressed them. But since the administration of the present first lord, the face of things has changed. I trust it will be observed, tnat I do not go out of the affidavit to seek to calumniate : my re^ spcct for the Court would prevent me, though my respect for the said first lord might not. But the very foundation of my client's defence depending on this matter, I must take the liberty to point it out to the Court.
The Admiralty having placed several land- men in the offices that form the council, a minority is oflen artificially secured there ; and when abuses are too flagrant to be passed over in the face of day, they carry their appeal to the directors, instead of the Admiralty, where, from the very nature of man, in a much more perfect state than the prosecu- tors, they are sure to be rejected or slurred over ; because tnese acting directors themselves are not only under the same influenoe with the complainants, but the subjects of the ap- peals are most frequently the fmits of their own active delinquencies, or at least the con- sequence of their own neglects. By this ma- ncBuvre the Admiralty is secured from hear- ing complaints, and the first lord, when any" comes as formerly from an individual, answers with a perfect composure of muscle, that it it coram nonjudice ; it does not come thfoush the directors. The defendant positively swears this to be true ; he declares that, in the course of these meetings of the council, and of appeals to the directors, he has been not only uniformly over-ruled, but insulted aa governor in the execution of his duty ; and the truth of the abuses which have been the subject of these appeals, as well as the insults I nave mentioned, are proved by whole volumes of affidavits filed m court, notwith- standing the numbers who have been deterred by persecution from standing forth as wit- nesses.
The defendant also himself solemnly swears this to be true. He swears, that his heart was big with the distresses of his brave brethren, and that his conscience called on him to give them vent ; that he oflen complained ; that he repeatedly wrote to^ and waitedon lord $ai)d»>
43J 18 GEORGB HL Tke
wicb, \vithout any effect, or prospect of effect; and that at last, wearied with fruitless exer- tions, and dis^sted with the insblence of ^ corruption in the Hospital, which hates him for his honesty, he applied to be sent, with all his wounds and infirmities, upon actual service again. The answer he received is worthy of observation; the first lord told him, in derision, that it would be the same thing every where else ; that he would see the same abuses in a ship ; and I do in my conscience believe he spoKe the truth, a$/ar as depended on hinuelf.
What then was the defendant to do in the treble capacity of lieutenant governor, of di- rector, and of general governor of the Hos- pital ? My lord, there was no alternative but to prepare, as he did, the statement of the abuses for the other governors, or to sit silent, and let them continue, ^ad he chosen the last, he might have been caressed by the prosecutors, and still have continued the first inhabitant of a palace, with an easy indepen- dent fortune. But he preferred the dictates of honour, and fulfilled them at the expence of being discarded, after forty years gallant service, covered with wounds, and vers;ing to old a^e. Yet he respected the laws wnile he fulfilled his duty ; his object was reformation, not reproach : he preferred a complaint, and stimulated a regular inquiry, but suspended the punishment of public shame till the guilt should be made manifest by a trial. He did not therefore publish, as their affidavits false- ly assert, but onl^ preferred a complaint ^ distribution of copies to the governors, which I have shoMm the Court, by the authority of a solemn legal decision, is not a libel.
Such my lords, is the Case, The defendant, not a disappointed malicious informer, prying into official abuses, because without office himself, but himself a man in ofBce ; not troublesomely inquisitive into other men's departments, but conscientiously correcting his own ; doing it pursuant to the rules of law, and, what heightens the character, doing it at ,the risk of his office, from which the effrontery of power has already suspended him without proof of his guilt ; a conduct not only unjust and illiberal,, but highly disre- spectful to this Court, whose judges sit in the double capacity of ministers of the law, and governors of this sacred and abused institu- tion. Indeed, lord Sandwich has, in my mind, acted such a part ♦ ♦ * ♦ ♦ » * * «««*«
[Here, Lord Mansfield, observing the Counsel heated with his subject, and growing personal on ** the First Lord of the Admiralty, told him, that Lor4, Sandwich was not before the Court,^
I know, that he is not formally before the Court, but, for that very reason, I will bring him before the Court : he has placed these men in the front of the battle, in hopes to escape under their shelter, but I will not join m battle with them; their vioes^ though screwed
Case tf Captain Thomas Baittiet [44
up to the highest pitch of human depravity, are not of oignity enough to vindicate the combat with me, I will drag him to light, who ia the dark mover behind this scene of iniquity. I assert, that the earl of Sandwich has but one road to escape out of this business without pollution and oisgrace: and'M^ isy by publicly disavowing the acts of the prose- cutors, and restoring captain Baillie to his command. If he does this, then his offence will be no more than the too common one of having suffered his own personal interest to prevail oyer his public ctuty, in placing his voters in the Hospital. But if, on the con- trary, he continues to protect the prosecutors, in spite of the evidence of their guilt, which has excited the abhorrence of the numerous audience that crowd this Court ; if he keeps
THIS INJURED MAN SUSPENDED, OR DARES TO TURN THAT SUSPENSION INTO A REMOVAL, X SHALL THEN NOT SCRUPLE TO DECLARE HIM AN ACCOMPLICE IN THEIR GUILT, A SHAME- /.ESS OPPRESSOR, A DISGRACE TO HIS RANK, AND A TRAITOR TO HIS TRUST. But, RS I
should be very sorry that Uie fortune of iny brave and honourable friend should depends, either upon the exercise of lord Sandwich's virtues, or the influence of his fears, I do most earnestly entreat the Court to mark the malignant object of this prosecution, and to defeat it : I beseech you, my lords, to ooiiaider that even by discharging the rule, and with costs, the defendant is neither protected nor restored. I trust, therefore, your lordships will not rest satisfied with fulfilling your ju- dicial duty, but, as the strongest evidence of foul abuses has, by accident, come collaterally before you^ that you will protect a brave and public-spirited officer from the persecution this writing has brought upon him, and not suffer so dreadful an example to go abroad into the world, as the ruin of an upright man^ for having faithfiilly discharged his duty.
My lords, this matter is of the last import- ance. I speak not as an advocate alone — ^I speak to you as a man — as a member of a state, whose very existence depends upon her NAVAL STRENGTH. If R misgovcmmeut wcre to fall upon Chelsea Hospital, to the ruin and discouragement of our army, it would be no doubt to t)e lamented, yet I should not think it fatal; but if our fleets are to be crippled bj the baueful influence of elections, we are LOST indeed ! If the seaman, who, while he exposes his body to fatigues and dangers, look- ing forward to Greenwich as an asylum for infirmity and old age^ sees the gates of it blocked up by corruption, and hears the riot and mirth of luxunous landmen drowning the groans and complaints of the woundef helpless companions of hb glory, he will tempt the seas no more ; the Admiralty may press HIS BODY, indeed^ at the expence of numanity and the constitution, but they can- not press his miiui-^they cannot press the he- roic ardour of a British sailor ; and instead of a fleet to cair^ terror all round tha globci tho
-
I
J
45] respecting the Royal Hospital at OreentoicK A, D. 1778.
£46
Admindty may not much longer be able to amuse us, with even the peaceable unsub- stantial pageant of a review *
FiKE AND IMPRISON MENT I—The man de- serves a PALACE instead of a prison, who pre- vents the palace, built by the public bounty of his country, from being converted into ^ dungeon, and who sacrifices his own security to the interests of humanity and virtue.
And now^ my lord, I have done ; but not without thanking your lordship for the very indulgent attention I have received, though in so late a stage of this business, and not- withstanding my great incapacity and inex- perience. I resign my client into your hands, and I resign him with a well-founded confi- dence and hope : because that torrent of cor- ruption, whicn has unhappily overwhelmed every other part of the constitution, is, by the bks&ing of Providence, stopped here by the sacred mdependence of the judges. I know that your lordships will determine according to law ; and, therefore, if an information should be suflered to be filed, I shall bow to the sentence, and shall consider this merito- rious publication to be indeed an offence aeainst the laws of this* countiy ; but then I sEali not scruple to say, that it is high time lor every honest man to remove himself from a country, in which he can no longer do his duw to the public with safety ; where cruelty and inhumanity are suffered to impeach vir- tue, and where vice passes through a court of justice unpunished and unreproved.
Mr. SoUeUor General^ (leading Counsel for the Prosecutors :)
Please your lordship to favour me on the part of the proseaitors, who have had no op- portunity whatsoever of answering the affi- davits, particularly those gainst wnom, if I am able to judfe of the af&lavits in the cur- sory manner I beard them, the whole attack is levelled. My lord, the application is made to your lordship by people m public offices, and have the honour of executing these pub- lic trusts. They conceive themselves calum- niated by this paper, which I shall presume to call a ubel — and a libel it is in every sense of the law. My lord, the application is against a person, who has taken upon him- self to state to your lordshios the several ser- vices he has been in, whicii made no part of the business before the court, but upon that sabject your lordships have heard much, in this motion that was stated by Mr; Baillie. It is stated, the directors are to have lOf. a time for their attendance, but I contend ^ere is no clause in the charter, nor any bye laws, which regulate that time ; the intimation is, that it is expected they will all attend con- ilantly. notwithstanding which there are se- veral directors who generally constitute a board, for which they receive lOs. as a gratuity.
* IWre bad joit before bMo a osTal r«ricw at PbrtMaoBlb. OHjp. Ed.
I did not hear that it had been sworn by cap- tain BaiUie, that he, as a member of this board, has not as constantly as any one re- ceived this lOs. a day, which he conceives to be totally against the i^irit of the charter; he has not said in his affidavit, or hinted, it is not in the charter; though he condemns tht practice, he does not deny, that he has not most regularly accepted of xOs. for his attend- ance.* Mr. Baillie making one of this board, is of opinion, that on every motion (unless it id to make the same motion he wishes to have adopted, and which does not succeed) those that constituted the board, were not left to decide upon it, but vote by directions they received. What evidence is there of this, which is charged imon the directors of tht board ? What proof nas captain Baillie given, that there is a foundation tor that imputation upon them : and yet they very wisely slipped over where the charge in the first part of the affidavit began, with the particulars respecting one person only ; but here is a direct chalrge upon every member of this board, except ivfr^ Baillie himself, that in eiving their judgment upon the deliberations neld by that board, they went by directions they recdved fiom othersy and every vote they jgive, b not a vote that in conscience thev ought to give, but an implicit obedience to the dictates of somebody else. Can a neater imputation be thrown upon any boara, authorized to act upon their own judgment ? and yet this is a direct charge in this book by Mr. Baillie, w1m> is a director. This will tend to shew^ whether this book was meant to redress grievances or not. One g[reat charge too, is, there are landmen in this situation, who are reprobated by the very terms of the chiurter. Mr. Murphy, from his knowledge, said he knew of the number of officers of S7 landmen and only 32 sea officers. With respect to the landmen in the several deparfenentsofthis charity, there is and even must be some, if they have no other persons qualified. There are many offices which musf be the particular business of landmen, as their educations enable them to discharge the du- ties of their iVinctions, which is absolutely ne- cessary. But Mr. BailUe thinks the descrip- tion is that they should be seamen, who have, served for many years, or have lost tiieir limbs, that they are the proper persons to execute this office. He is so kind as to say the clerk of the works may not perhaps be a scaring man. And also the surveyor, who is to do their works, and make the estimates of theb: buildings, to phm them, and to propose their contracts ana their alterations, trom time to time : these probably may be landmen— «nd vet these offices are as much within the prohi- bition as any other. Mr. Mylne is supposed not to be particularly attacked in this book, as
* Gftptain Bafllie did oerer receive hit 10«. bat for every actaal attendance : what he haa oompldncd of is, that aeveral of the directors retire as soea as their aaaies are taken devra, Orig^ EtL
47]
18 GEORGE IlL The Case of Captain Thomas BaUlie, [48
Mr. Erskine save, but in general he has mis» behaved himselfy and therefore he wonders he should be amongst those who have thought fit to complain to this court. There are o& cers too that ai« called landmen, mere clerks in office, those whose duty reqiure them to be landmen— he has taken the clerks in office, and Mr. Mylne and others, who are to consti- tute the number stated ; though Mr. Mylne may not be a particular person alluded to, yet he may be of the number.
Court, 1 don,'t know any affidavit that atates it.
Mr. Solicitor General, I have not seen the affidavits: your lordship knows, there was such a noise in court at the time they were read, it was impossible to disUneuish some parts of the affiaavit. I believe the meaning of the affidavit comprehends all these men, who from their several fiinctions in the Hos- pital must be of the same description.
My lord, the reverend Mr. Cooke is ano- ther person, who is the first chaplsdn to this Hospital, who has suffered so very much in the business, Mr. Erskine, out of compassion to him, would say nothing more upon the subject ; but from the ridicule of one gentle- man, and the invective of another, he has al- ready had his share of the abuse. As to the ridicule or invective, if any answer is to be
f'lven, it is to be left to Mr. Cooke himself, can only tnswer to those particular narts that respect his duty here, and the subject matter the Court is to enqun^ into/ Mr. Cooke is charged in thb pamphlet with hav- ing purchased a seat at this board, and with having bargained for this place of chaplain, under the sanction of the first lord of the Ad- miralty. My lord, these are not places pur->- chasea ; a directorship is not a place for pur- chase ; it must be exercised, at least, it ought to be eicercised by persons appointed, upon the consideration of the abilities aad situa- tion of the person who can or cannot attend the duties of this Hosmtal, and discfaare^ ^em. Though I don't know it, at least it has not been stated by the counsel, and, I presume, there is nothuig in the affidavits to prove any such transaction ever happened, as that Mr. Cooke oorchased a seat at this board, or bargained for it with money.
Mr. Bearcroft. My Jord, this charge is ix>t denied by Mr. Cooke in bis affidavit
Mr. Solicitor General. But it is said, he is an unfit person to apply to your lordship. With respect to Mr. Cooke, there is another objection made to him, wfatch J should have thought did not oome within the qualifica- tions necessary, by the tenns of the charter : the objection is, he happens to be a Hunting- donshire man and a landman. And it seems 4h6 industrv «f Mr. Bsdttie, who says, there are a number of them freeholders or bur- gesses of Huntingdon, has found out that there are three or Tour of them officers of the JSospitaL I do not know the affidavits go ivther— that tbey ase fiBeholders or m-
gesses of the county of Huntingdon. Mr. Godby, the steward, is charged with having connived with a Mr. Melli«), in imposing upon the Hospital ia the most cruel manner, respecting the poor pensioners within it. That the Hospital, in the most hooourable way, contracted for the best, provisions they could be furnished with, their intentions were defeated by the criminal corrupt con- nivance of Godby with Mellisfa, that instead of the best ox beef there was bull beef, and ram mutton instead of wether. Then there is a charge against somebody, I don't know against whom it is meant, for compounding the penalties ; I presume the court of direo- tors, against whom the charge is meant, for compounding this offence with Mellish, afler his being convicted before your lordship once in an action ; afterwards another fu^tion was brought, and he would again have been oon- victed, but the penalties were again com- pounded, to the aissatisfaction of Mr. Baillie and others, who expected he would be se^ verely punished. With respect to that most criminal connivance of Godby, there is not, as I conceive, the least evidence U) support it in truth, I speak now from some: knowledge I have upon the subject, there was no sudi imputation of a cruiie upon him at the trial.*
My lord, that action against Mellish mav be in the memoiy of your lordship, which was brought by the order of the court of di- rectors, wnen a verdict was found against him upon the several breaches assigned m that ac- tion against the bond, which expresslv obliged him to furnish meat, according to me stipu- lated contract and prices. It appeared, he had mixed it with oull-beef, in such a way, that to the eye it would deceive m^ny people and judges, he had contrived it in so tauou- lent a. manner, but the truth came out ; there wroae complaints all was not rieht; upon which they appointed the meat to oe inspect-' ed, and particularly examined b^ boiling, to detect this abuse ; they did try it, in conse^
Sience of which there was a conviction of ellish ; though there was a great many pe- nalties sued for, they did not take any other but what they thought they had evidence of; it stood in your lordship's paper, and there was some talk of delaying the cause, when it was mentioned that it was made up.
Since that action was brougjht, there has not been ^e least complaint, and the last ac- tion was for breaches of a contract that had been made before the bringing the first ao- tion; since the action, meat has been delivered according to the contract, and there has been no ol^^ection.
This man was willing to sabmit himself to ^he /direclots, and at last it ended, upon the
* Upon the Irid it wu obmrrod bj the jnAge, that the inpodtioii could not havs happened* bat fronifas iAOffanoe sr owmplisn of Dmb xeottnag oAoork Grig, Ed,
19] mpeeiing the Royal Hospital at Greenwich. A. D. 1778.
[50
man making a submission^ which was a mat- ter as proper for the ctirectors to animadvert iqN>ii, as any men whatsoever : his crime was compounded, upon what terms Mr. Baillie does not state, nor do I know any thing more, than that it was stated in the way I have now sUted.
One great charge against the directors was,, this man was permitted to contract with them again. Mt lord, firom the time of that action, has there been any breach of contract ? Mr. BaiUie does not pretend there was any. Capt Baillie. An hundred times. . Bfr. Solicitor General. There is no such thing in the affidavit, that I know of; the mo- deration of captain BailUe convinces me of nothins but that the directots acted upon neat ^liberation and full eitamination ; but I see there is no objection stated in the book, nor is there any affidavit of the kind.
It b said there was no advertisement to de- liver in any proposals, I did not hear it was sworn in the affidavit; but the contrary is true, and that Mellish delivered in proposals more reasonable than any body else.
He now receives a certain sum from the victualling office, and they have found his ability b such he can perform the contracts within the time and can serve them in as good a way as any.
It is certain the Hospital brought actions gainst him, and foimd him guilty of frauds, but there is no pretence to say it since this new contract. Mr. Baillie does not mention there has been any fraud committed siuce, and yet this is the charge upon the directors, that th^ have since contracted with a man that had been convicted of fraud.
F4very body conceives from a charge of this kind, from the manner expressed here, Mel- lish has a corrupt influence in the court of di- rectors, and a preference before every bodv else, in the maimer stated to your lordship it is shewing the directors had the worst of mo- tives for contracting with a man whom they knew would be guilty of frauds upon the con- stitution of the Hospital, or else it meant no- thing, and Mr. Baillie would not have insert- ed it without some meaning or other.
Then, my lord, there is a charge upon one EAis, that he got into debt with Uie Hospital to the amount of about three or four thousand pounds of the charity money, and he ab- sconded with part of their money, nothing is more true than that it g<^t into his hands, and he absconded, and they have never got the money.
And what is a more serious truth, they have no chance of getting their money, be- cause Ellb at the time he was found out in thb business was not worth a shilling ; re- specting this your lordship knows that the kpard necessarily advised vFith people for the direction of a business of this kind of the law ; Md in tmth it appears the moment his detec- tion was laid before a proper officer to prose- vdft, Biiia disapfieared. VOL XXL
And this is charged as a criminal neglect upon the part of tne directors, in sufferinjg Ellis-to abscond with so much money in his hands, or which he had embezzled ; these are charges that are made in this book against the directors that generally constitute the board.
A story w^ told you of one Huggin, Mr. Mylne's labourer, that made no part of the business, I believe it was not sworn to, I took it from Mr. Murphy's stating some action^ which brought about a dispute of a nurse in the Hospital, and she would not submit her case to a decision of the council, and she was turned out, and they add as a fact a son of hers was turned out too.
Mr. Baillie has not assigned the reason in his affidavit for turning out the son of thi;} woman, if he had I should have had no obser- vation to have made about it, but I have en- quired about this business, and I do not see it makes any part of the affidavits. The son was turned out because the mother had not a proper certificate.
The mother had produced a forged certi- ficate to get him in, this was in truth the rea- son why this boy was turned out of the cha- rity, and would of itself be a sufficient reason to turn the woman out that had got tl^e forged certificate; bqt tliis makes no part, that I know of, respecting the question in this case.
As that was mentioned as an act of cruelty in somebody not named, I thought proper "to take so much notice of it that it might be laid out of the case.
My lord, that there is matter of libel and calumny contained in this book, not one of the gentlemen have disputed, that a reproach is thrown upon the body of directors^ not one of them have said a word about.
We are told it is not a libel though it were false— though it contained calumny of the deepest dye^ it is not a libel — Why ? because it is laid before proper persons in the ordinary course of redress, oy a person whose duty it was to represent to those that were to hear and redress ; that was the position laid dovm ; the genUemen might have spared themselves the labour of citing any author whatsoever.
If it was captain Baillie's dut^ to represent any abuses or supposed abuses of this charity, and be bad made that representation really and with intention to have the same redress- ed, without any intention to calumniate tht character of any gentleman.
The gentlemen might have contented themselves with that proposition, and been sure it would riot be opposed — Who are the officers to remove them? The appointment is in the Admiralty, the amotion is in the lords of the Admiralty by the charter.
Did captain Baillie deliver this to lord Sandwich and the rest of the lords of the Ad- miralty merely with a view to have an ea« quiry mto the abuses he is supposed to have exposed?
E
61J
18 GEORGE III. Tht due of Captain Thomat BaUMe,
[6i
Did he deliver it to the lords of the Ad- miralty to let them know the directors voted by some iiifluenoe or other, he could not tell what? Coy Id it be 4ihe purpose of this book, framed as it is with reBections upon that first lord of the Admiralty, and every person serv* ing under the first lord of the Admiralty f
Could it be imagined this was done with a view to draw down an enauiry, and to have redress ? Is it possible hd snomd abuse those in the grossest terms in whom the redress lay, at the time he vwas supplicating for re- dress ?*
Ha9 he confined it to those he supposed had the power of redress, to the governors of the Hospital ? lias he confined it to them ? No — He says it is true I have delivered it to them, but I have delivered it to some friends of mine.
Court. Only since the prosecution to advise with his counsel, or a friend or two for advice upon the prosecution.
Mr. Solicitor General. I thought he con- lined it to his counsel.
Court. To his counsel and a friend or two, and before he let any one person have it he de- livered one to the first lord of the Admirally.
Mr. Peckham. When he delivered it to me, it was with a strict charge not to let it go out of my hands to anv body.
Mr. Just Willes. Cowley's a&davit ex- presses it.
Mt, Solicitor General. I stand corrected — Then it will be for your lordship to say whe- ther this could be the motive of captain Baillie in delivering this book, with the seve- ral chaises contained in it, which were not the subject matter of redress?
In particular, wliat complaint is there f^nstMr. Stuart, who now appears before your lordship as one arraignea for having voted in the directorship under the influence and the direction of somebody else : nay in being told his sitting in the directorship is in- competent to him, and the office he bears, as he was by that means to inspect his own ac- counts, and be the judge otthe reasonable- ness of the articles? Is there any tbundation for this?
What as the foundation ?
. Mr. Stuart is the surveyor of all the works c^^urried on in tliis Hospital, it is not contended by Mr. BaiUie (I don*t know whether he piakea an express exception of that in particular) he is not fit for this duty, or to judge of the plans and estimates laid before the Hospital.
It is particularly tiie business of Mr. Stuart, not only to inform himself of the {ilans or estimates laid before them, but the utility of them, and the axpence with wliich Ihey are to be attended.
* The Lords of tbo AdminiUj make bat a tmall fart of the gorernorsand •ommuaionen of the 0o»- f ital. Mr. Solieitor General aays grota tbnie with* Aot najliig vihaX that abase was— oalj a plain repM- •anUtioB of facU Orig, E<L
Mr. Stuart \m a certain annual salary a« survevor of the works of this Hospital, and whether there are more or Jess is nothing to Mr. Stuart, but he is charged in his depart- ment with giving his opinion upon some aiv ticles for the benefit of other people -^Is there any foundation whatsoever in this charge , against Mr. Stuart, who is- in truth an officer at an annual salary- ? it is totally indiffcrend to him, as the exuence the Hospital is p^ to, is not determlnecl by him, he is only to se» there is nothing improper done or charged.
This is the nature of Mr. Stuart's situiatioD with respect to these cliarges made upon him by Mr. iiaillie.
W^ arc told too we are not within the or- dinary rule or course witli respect to informa- tions ; and tlie case of general Plaistow has been mentioned, where the court required 4 particular denial of one of the charges, in ft paper upon that general's conduct.
These persons are charged with hgivvag im* posed upon the court in the manner set forth ; and that they have in their breast a salvo for the oath they have taken» and that they themselves have put a construction upon the articles and charges — and they swear thej are not true according to that construction.
Is it possible to put that construction upon tliis affidavit ; or if an indictment were pre^ ferred against them, is it possible for any coi4psel to stand up and tell a jury what they have sworn from their own ideas are contrary to the ideas of every man upon the subject.
They conceive the cliarge to contain that imputation, wiiich in truth the directors do not deserve, and therefore they swear they are not guilty according to that imputation.
What they hav« sworn does not apply to tliem any otherwise; there is not one of them, nor any counsel of the bar, would stand, up to state such a fact before a jury, and call it perjury— it is impossible. I have stated to your iordshi{) many general charges I have selected, so fiir as the general charges affect any one of them— so fiu* they say they are not guilty.
In the first place, it is said they all vote according to direction, they never give a vote but from direction, and they suspend their vote till then — What does that imply ? Oudl it have more than one meaning, which ie this, they don't use their own judgment as they are bound to do? it cannot lutve ^nj other construction.
It is said tliey have not ffone into particut- lars, but contented themselves in FPftV^fig these denials, with a reservation in their own mmds— from which reservation they cannot possibly be guilty of negury.
I wish they woula state to me that altd^ native in any part which is applicable to the denial, as it would go to a great number more of the general charges to which these gentle* men have sworn (it is said) to satisfy the couit —I take it in each of thep there is a denial sufficient, and no prevarii^tiaD whatever, ygsr
H] pispGiing the ttoj^ai HtapHai at GreEmnth. A. D. 1778.
hnWp will consider the denial and ^e import
^Ifatscfavrge. Hat these are also pablic officers executing
sfoblic tnist; the Court have thought any
ofgections beins reported of people m such apadtiesy ana not founded in ikct, have fteeo a soffideDt ground to grant an infor- mation.
As a charge upon a mail in a public capar dty^not doing his duty is a libel ; in private fftoe maj be libeh, as in the case of general Fiaistov, it was not onlj charging him with krbg teen at the Old Bailey singly, as Mr. ZrskiDe has sud, but the facts of his being abroad as a gamester, and dealing with false ^De, and many other particular charges of that land in a particular company.
The Court required him to make, an afB- davit of these articles; that was what the Oxot teouired him^ to make an affidavit — he complained of tnis as a libel — the facts Here stated with precision and particularity, ft he could not be under any difficulty in an- sivering.
That was the case of general Plaistow, but your lordships have heard a great deal which passed at the committee of enquiry, and that 'It was a joke, and the trial was set on foot for seqmtfing Uiose charged, and throwing the Uame upon Mr. Baillie.
And Mr. Millie states he went to the Ad- mirat^tohave this enquired into, and lord Sandwich told him to name seven out of the Sectors, which consist of twenty-fom", some by their offices, ss the governor, lieutenants governor, ancfitor, and treasurer, are directors, ttid the rest maJce up twenty-four, that are appointed by the Admiralty.
Have they stated the names of those ap- pcnnted hy the Admiralty ? They have stated the chaplain, surveyor, and six-penny re- ceiver to be three ; but have they stated the other seventeen? of what description they are ? how likely to be influenced to prostitute their cbaracters for the acquittal of ihen finhy of offences of this kind ? the amotions Ming in the Admiralty, the first lord of the Admiralty wishes he would appoint seven, as he admits in his hook, and that many of them ire of irreproachable characters. Says lord Sandwich, do you name seven out ot them, and I will send an authority for them to make ^ enquiiy ; he wasr to name seven of the &cctors to enquire into the directors' con- duct, and of those several officers that are ap- pointed by the Admiralty, who have a power to remove them.
Mr. Baillie in his book has injured a great Jteny persons of most irreproachable charac- ters, some of them men quite at liberty. ^•ys lord Sandwich again, Mr. Baillie, name •even men out of the directors, and I will ■end a direction to them to enquire into the bottom of it ? No, Sir, says he, I will not have toy of the directors : then says the lord of the
Adimnd^ to hiin, If you will not name them, I will: he names sir Meyrick Bunrell, Mr.
[54
Cus% captain James, captain Barker, Mr. Wells, captain Reynolds, and Mr. Savar^.
Court. I do not find. Mr. Bearcrofl, m the present affidavit, any of^ihose directors refer- red to by the printed memorial in the book amongst the seven directors ?
Mr. Bearcrqft, My lord, there are some of them.
Mr. Solicitor General. Not one of them among the seven named; and out of the whole number Mr. Baillie might have taken an^r seven. He might have taken anv ; nam^ whrch you will out of ^e body, which you know to consist of men of the first charactelh and beyond all reproach ; name them your- self? I wiH not name them because thev are parties : What could be done ? Lord Sandwich named seven of those directors, not one against whom there was any particular chaise, and they were not at all concerned in uic transaction whose general business it was to attend these meetings.
In every corporation and a.ssembly they must be selectea as these were ; every body knows they must do all the business incum- bent upon the members t6 do ; it must fall into the hands of those who attend in general.
This enquiry was appointed, says Mr. Peck- ham, but it was an illegal oourt.
Mr. Peekham. 1 did not call it a court, but men appointed to enquire and report upon their own conduct, not to give judgment and sentence too, they should nave done nothing more than report to those who had that power.
Court. I take it to be a committee ap- pointed by the governors; at a eenend court of governors they were appointed.
Mr. Sol. Gen. Yes, the court of governors a>nsist of a great number of gentlemen; seven of those men are appointed by the court of governors, and Mr. Baillie might harve had the nomination of them, as I said before, of every one of them; he would not ac- cruiescc; says lord Sandwich, I will name tnem : No, says he, the governors arc to name them.
We did not know what was the intention of the committee to do, becaa<% the applica- tion to this Court was first made ; we aid not know at that time the report of this court of enquiry.
Court. Not by the report?
Mr. Sol. Gen. Yes, oy the report so soon as the enquiry was over, but during the en- quiry, while they w^e consulting amongst tnemselves about the report, this 'application was^ade to the Court, not waiting till the report was made.
Court. The report was publicly read to Mr. Baillie, though he had no copy of it?
Mr. Sol. Gen. No, not then; it was in August.
Court. The motion was in Trinity term.
Mr. Sol. Gen. The motion was m Trinity term for the information, but the business oif the enquiry was not over.
65]
18 GEORGE III. The Case of Captain Thomas BaUlie, [56
Mr.JvksX.Ashhura, Where was the use of waiting till the end of the enquiry ?
Mr. Bear croft. My lord, it is sworn by our affidavit, that the business of the meeting of the committee was to consider of and make the report, and they do not make the appli- cation then.
Mr. Sol. Gen. Mr. Murphy says, to their knowledge it was in August, and not before.
Court, It might be in August, but on what day of the month was it read* in the hearing of captain Baillie ?
Mr. Sol. Gen, It certainly was not read to him ; it was not drawn up ; I remember asking the question, what was the result of the enquiry, and they said, they could not tell.
Court. Something runs in my head that it was read to him.
Mr. Bearcroft. It was read to him, my lord, at the time he was told he was sus- pended.
Mr. Sol. Gen. It was read in the general court of governors.
Court. The report is the 6th of August.
Mr. Sol. Gen. It was read to Mr. Baillie at the general court of governors of the Hos- pital, who suspended him in the month of August. In truth, I was not certain to the time the report was made. I asked the at- tornev, when he came into court the last day; he told me, those who were advised upon this business, thought it not a proper thing to move this Court till after the enquiry was finished, they thought it might be an impro- per influence.
The gentlemen have over and over again alluded to the great delay in the process of that enquiry, not a word of which did I ever hear a hint of, till Mr. Bearcroft stated it.
And, that this gentleman suffered extreme- ly, not only from the indecent manner with wniph those that constituted tliat committee treated him duripg their proceedings, but by a gentleman who fortunately is here, Mr. Morgan, to answer for himself, and, I tnist, will acqiiit himself of every insinuation upon him before the Court.
There is another part of the case which your lordship has heard a great deal upon in- deed, which was what passed subsequent to this report. Your lordship has had an* ac- count of the manner in which this report was read, in what way it was received, and the consequences that attended Mr. Baillie ; that he was dismissed by the holding up of hands, or in some such ridiculous manner, by the meeting of persons whom they did not name; it was a meeting of the governors of this Hospital.
. Tnis part of the case which has happened in August, your lordhhips have no opportunity of hearing a syllable about ; the biismess was a subject of complaint, originally founded upon affidavits previous to the transactions.
Your lordships have heard a great deal of fhut which was stated upon affidavit. Is
there any person applying to this Court, if a party in the transactions alluded to in August, that has a possibihty of being heard?
Are your lordships to take all these suspi- cions and apprehensions of Mr. Baillie, with respect to tne motives for these transactions^ as containing imputations upon any one geiir- tleman }
Court. As to that you are heard ; but as to the fact, that the governors have exercised their Judgnient so far as to have suspended him, is tlmt denied ?
Mr. Sol. Gen. I only mean de facto he is susnended.
Court. Then de facto he is suspended ; if so, I would adjourn the consideration of this and have it enquired into.
Mr. Sol. Gen. He is in fact suspended.
Court. That is all I wanted to Know.
Mr. Sol. Gen. As to the mere fact of sus*- pension, they have had no opportunity of being heard upon it. If there is any imputa^ tion arising upon them for that, they have no opportunity of answering : to be sure, I do not pretend to say, that is not a material fact to De laid before your lordship in the examina- tion of the business, whether it is proper for your lordship to proceed or not, seeing Uie party has had some punishment for this of^ lence.
I do not quarrel with the fact being stated to the Court, but the manned in which it was stated, and the animadversions made upon the persons that constituted that Court wnen the suspension took place.
This is a part of the case that cannot be taken into consideration at all more than the mere facts of the case, and that the party has suffered to the amount of 600/. a year.
It may be so; thiat fact, to be sure, is a very material consideration for your lordship in the discussion of a subject of this kin<i^ when using that discretionary power which is in the Court.
I apprehend this business is within the very rule necessary for informations, as there have been imputations upon a body of men executing this charter according to the best of their ability and agreeable to their con- sciences.
They are charged with having acted by tlie mandates of others, and not only so, but they suspended their vote till they received such directions; and in other instances, the seat^ were bought at this board, and if so, they are unfit to come there ; that they ought to be placed there by persons in whom the trust is invested, and not by others; these are the facts charged upon the directors, and no anT swer has been given to it.
Therefore, under all these circumstances, I trust your lordship will see it is a case propei: for the animadversion of this Court ; it is a libel upon persons in public stations; it is in^r suiting them in those stations, and is distin- guishable from the common case of a perso|; applying for an information for a libel.
57] retpeetk^ the Royal HaspUal ai Greentoich. A. D. 177S«
^58
I submit to your lordship, here b such a denial of the chams in the libel as ¥rill sa- tis^ the Oust ; if your lordships do not in- taierc in this case, eveiy person's application hereafler may be over-nued, though the ap- pliaticm be made by a body of this kind.
And thcry may be told, as these have been, they are influenced by other motives than tfam own conscience when they give their voles; and, I trust, your lordships will say, this nile^ ou^ht to l>e made absolute against captain Baillie, for it is a libel upon the cha- racters of mpn that did not deserve it, with an intent to transmit to posterity this stigma, that the men who were to execute this public trust did not act upon their own judgment, but were made the mstruments of revenge of others.
Mr. Wewnham :
May it please your lordship to favour me upon the same side as Mr. Solicitor Gene- laL Having attended as carefully as I could to every thing said by the gentlemen upon lht €>tJkka side, I confess^ I was rather inclined to think they were movmg for an information iiom the manner they defended themselves, than shewing cause against this rule.
Tbe gentiemen have all founded themselves upon the affidavit of Mr. Baillie as supposing it substantially true, and upon that they sup- pose ev^ abuse, which the book says is true, is founded in fact, and that was the defence he meant to make.
It is not expected we should answer the ri^ dicule of the two first gentlemen, the in- vectives of the tlurd, nor the florid eloquence that fell from Mr. Erskine, but to submit what we have to say in favour of the prose- cutors, who are only attentive to their own character, and in their consciences knowing (as they state) they are guiltless of the charges contained in the libel.
That there are charges against them was admitted bv some of ^e counsel. Mr. Bear- croft stated some very severe charges, though jLhc other eentiemen seemed to say, there were no charges of a specific fraud against >t^m. I do not know what charge can be more severe or specific against any body of men^ namely, that for want of ability or in- tegrity, they are unfit any longer to continue in the exercise of that important office they held ; it is calling them in other terms, fools or ki^ves, or boUi, and they thought ^t in- cumbent upon them to proceed against the gentleman that dared to asperse them, and to say the charge is groundless.
There are several other specific charges— one, that a great quantity of prize-raoney Mr. Baillie supposed to be due for prizes taken in the late war.
Your lordship knows those prizes unclaimed areeiven by parliament to Greenwich Hos- pital Ue states, since the charter that pass- ed preceding the date of this publication, the i^^n hatt been sg inattentively negli-
gent to the affiiirs of the Hospital, that nO steps were taken to recover this money ; whereas, if any step had been taken, more than forty or fifty thousand pounds might have been recovered.
Mr. Baillie must know steps have been taken, and thirty or forty thousand pounds has been recovered, and every step has been taken to promote a speedy recovery ; and, aa he states, these prize^ents were living at the West Indies, it was necessary to file a bill ia the court of equity in Jamaica, and upon eveiT interlocutory order, the prize a^nts ap- plied to the privy council. Mr. Baillie knows that they applied to the privy council. I have had the honour to attend them upon ten dif- ferent consultations ; I think they dismissed the appeal with costs.
The order of the privy council went as far and farther than they had ever done before ; particularly, one of the learned judees desired them to 20 as far as they could, ana they gave consideru>le costs in the business ; so they went on in the course of the business as far as the court of chancery in Jamaica would per- mit them to proceed.
Court. I hope Xhey always giveinteresL I always give it at Guildhall, and the privy council should : I only give you an instance of a precedent.
Mr. Newnham, J hope they will ultimately give interest in Jamaica.
Court. You observe it was a case where the stents seemed to be feinting, and keeping the money back, after it came into their hands. Mr. Newnh4im. Then with respect to the other instances, particularly the butcher, the directors must have been plaintifis, thoum not by name, and it was not to be expecteothey would betray the cause of the pensioners. What was the opinmn of the directors ? they directed that an opinion should be given inw mediately, and in decisive terms.
In consequence of that opinion, a method was taken to prosecute Melfish, and he was convicted ; and would have been convicted a second time; but the directors are charged aflerwards with contracting with this man.
The contract was open, in consequence of public advertisements, and Mellish was the lowest bidder, his offer vras the lowest terms. Would not Mr. Baillie with greater propriety, and more force, have abuMd the directors with want of attention to the interest of the Hospital, if they had not taken the lowest contract. Is Uiere any thing to say of him after the second action ? He is staled to h^ worth 80,000/. that is not by defirauiUng the Hospital. Court, He meant that. Mr. Newnham. He offered to do it upon better terms than any body else. Respecting the specific terms of the charges, they are found to be groundless, and they are in fact, and in terms, positively denied. It is said, so far as they tend to criminate the persons making the affidavits, they are falser Otit
m
18 6EOROE III. The Case of Captain Thomas BailUe^ [60
person cannot ^ear wbat relates to another peraoQ is false, but so far as relates to himself, eacb says it is false.
What is the objection to Mr. Stuart ? Is he incompetent ^ Is he unfit for the office of sur- veyor r afid his knowledge in the profession BO ba4 atttd trifling, as not to make him worthy of the apfointment^ Is there any instance of the sorU or any thing in this affidavit oi Mr. BeuUie niing any particular charge upon Mr. Stuart?
I think it is the same, only in the publica- tion with respect to Mr. Mylne, it says he is a landman.
That is not imputable to the directors. Is it at a.11 said or proved, within the construction of this charter,- tliat every person whatsoever, employed in the management of the Hospital, must be a seaman ? Should an architect and a builder be a seaman, or any sach persons who are paid lor their particular labour, is it incumbent upon them to be seamen ? I -con- ceive notr; and what is stated of Mr. Mylne being the clerk of the works, is applicable to other builders, and they will not say the clerk of the works ought to be a seaman.
Then one of the gentlemen is charged with being the contriver to defraud the Hospital of 1/)00/. for cleaning pictures, as Mr. Bearcroft said of Mr. Stuart.
Would TOUT, lordship imagine this was a }»ainted hall, containing I do not know how m^y thousand feet, and could not be repured in a proper manner, under 1,000/. or there- abouts?
It was stated to be an immaterial thing to the Hospital, whereas in fact Mr. BaiUie is obliged to acknowledge it brings in 4 or 500/. a year revenue fbr shewing this to stran^rs.
It was necessary to preserve it, and it does not appear Mr. Stuart was in any degree ftuilty of the smallest impropriety, or the mend he recommended, who actually has done it at an inferior price to that which was usual.
With respect to Mr. Cooke, the subject has been worn quite threadbare, he (Mr. Cooke) states the charge against him to be false.
He is stated as Imving purchased, under the sanction of a particular person, whose name I do not wish to mention, the office he enjoys. Is there any proof of it ? None ; and it is de- liied fkitly and positively by Mr. Cooke.
CoMff . Do you mean that he gave the chap- lain that resigned, money fbr so doing— not ihat he purchased it, but gave the sea chaplain something to 'go out.
Mr. liewnham. It is stated in the book he purchased the chaplainship ; that he bar- gained and paid money for it under the sanc- tion of the nrst lord of'^the Admiralty
Mr. Bearcrqft, Is that denied m any of your affidavits ?
Mr. Newnftnm, I do not know. My lord, it is made matter of complaint. I considerea it as a complaint made against the proseeutors, in the mAoner the gentleman admitted, that a
vast number of landmen found their way to the Hospital. By whose means ?
Is that imputable to the directors ?
Certainly not.
It is stated however, that this book was not intended as a general publication, but merely as a remonstrance to persons competent to redress grievances, of wnich it contams a long detail ; in conseauence of which Mr. Baillte is desirous to have an enquiry into their con- duct, and a general board of the dire^ors is summoned, and Mr. Baillie attends.
To whom was the application to be made for redress of internal grievances, and the re- gulation of the house, but the directors that were competent to interpose ?
Mr. BaiUie was offered to choose seven of his own naming ; he declines it ; he could not decline it upon account of none of them being competent, for he states, that many per- sons were of irreproachable character and ho- nour amongst them, and there was no persoft amongst the committee, against whom there was any particular charge made.
They sat seven da^s^ and make a reporfy which was subsequent, m point of time, to thfe application to your lordship for this rule ; for tne application was made in TrinHy-term, thft report bears 'date in August, considerably after the expiration of that term, so that every thing was subsequent to that original application to the Court for an information.
The prosecutors of this rule have not had the smallest opportunity to answer in any r6- specbthe affidavits, and it rests wholly upon the affidavit of Mr. Baillie, and the others, without the smallest opportunity of being heard agidnst them.
I take it from them, that all the specific charts asainst every one of them are false ; and tney have as good a ri^ht to say they are false as they have to say they are true. The affidavits contradict each other.
I have no doubt volumes of affidavits of other very respectable people might be pro- duced to contra(hct every one of the charges in the affidavits, and with respect to some of them, they are exceedingly mistaken and mis- represented, which is as much as decency will permit a counsel to say of those that fall kn- mediately within my knowledge.
But supposing them all true, or false, it matters not — it is said it was only a complaint to persons competent to redress grievances, ana meant as a remonstrance or memorial-, and in the first place, it was not meant to be public, only to a set of gentlemen competent to redress the grievances.
I do not think it is proper to lessen or di- minish the right of application for redress of nievances, to any persons competent to re- lieve them ; but I do not know now any man presenting a petition or memorial to any set of men, has a right to say, You are a pack of fools or knaves. If such a thing is done, it is not within the right of petitioning ; that is mv idea with respect to this pubfication. Te
$IJ rupeding the Royal HospUal at GreentvicL. A. D* 1778;
[68
wbatn does he ddiver it? Not to persons ca- pable of vedres6-<-he delivers it to persons who laye no authority to amove — he tells you the directors are knaves; Can the directors •move themselves, or their fellow directors ? Certainly not : and therefore it was not com- petent to apply to them for redress, in any VBSpecty of tnat particular grievance, which, he says, was occasioned by a pack of knaves OF Ibols, having found their way into an hos- fiital by meenB of parliamentary influence. I mve nothing to do with Uie ground upon which tb^ were appointed to the office tney ^^joy? 1 know nothung of it ; but sure I am, IfcAt -soame of jthe persons, I see in the list of the direction, are directors, that were in be- Ibre the first lord of the Admiralty had any office in this country. I believe some have been thiete for thirty years or more— this aecmed to be the great ground upon which the gentlemen have eone : I shall leave Mr. Morgan to defend himself in the way he thinks fit, concerning his oonduct at Oreen- wich Hospital ; I have nothing to do with that pert of the taoatter.
Ctmrt, That is not kind. Blr. Neamham. I was not present, I can- not say a syllable upon the ill language they talk off in respect to Mr. Baillie.
Cauri, You are concerned to defend an attack made upon special pleading.
Mr. Newnhinn. I have nothing to do with that in this case ; there were some complaints 4^ Mr. Baillie's heat, which has been conspi- cuous to^y; but we have nothing to do with it; if they have, by warmth or heat, be- haved amiss to Mr. Baillie, I am persuaded, the gentlemen are sorry for it ; I have no doubt there was a sood deal of ill knouage, but I am peFBuadea such langjuage coukl not have fidlen without provocation. Upon the part of the present application to the Court, I am to submit to your lordship the present fircsefaitors think themselves aggrieved and il^treated, and upon that ground they apply for an infiarsaation, denying in a general way every fiict that tends to criminate them, or |hat is made part of the charge.
Mr. Macdonald. I am of counsel upon the lame side, and I have |;reat acloiowledgments to make, and thanks io express, to the ^entle- inen who hf^e gone before me, for domg, in a great measuie, lAy duty for me ; it remains Cor me to state amongst the rest, how ex- tremefy ill Mr. Stuart liAS been treated ;. and all the nbjections in the afiklavit of Mr. Bail- lie, and eveiy other objection that has been made, do not extend to the case of Mr. Stuart. Two classes of peracmsy architects and other officers, have moved for an infonnatio&, for bdng cahimnialed by this officer of the house, Cflpedallj Mr. Stuart, who is more particu- hngr ooaceroed Mr. Baillie has thought r, in a separate capacity, to affect him in and oGcupalion in life. I shall before your lordsmp those passages that biB> aA4 ahftw tuthe ia ralumraated.
For Mr. Stuart my more iaimediaie addovs will be ; but I shakl say something, with yeiir lordship'ir permission, respecting the general point.
It is very well worth obeerv^tion, and I in- quest your lordship's attention to the season at which Mr. Bailhe chose to publish this ac- count—just at that season when eneoumssa- ment to seamen was most necessary, and ixff means of this book setting into their, hands, or the examination of jpeo^ who could com- municate it, your lordship must see the con- sequence. Certainly the motive is clear ; and the directors, as individuals, )iad a vei^ propiv motive for bringing this be^re the public. It icertainly tends to discountenance aea^aen from entering into his majesty's servioe, if such a spirit, a& this book might occasion, should dimise itself amongst such a body of men— it was nartacularly dangerous at that point of time, tne beginmng of March laat : it certainly was not a proper time to make siirjt an aiiplication by publishing such a book. I shall not go through every wing that has been suggested upon the other side ; but it strikes me, the gentlemen have siven the go-by to the principal question, and directed their at- tack in a quarter not before the Court -^where it is not my business to defeiKl. The argu- ment the gentlemen on Uie other side went upon, was ridicule, which has been used with success, from every hand that it came ; and the eloquence that has distin^ushed Mr. Erskineeave me great satisfaction! In the course of my life I never felt greater pleasure than in hearing my old school-fellow, and one of the earliest friends of my infancy, deliver himself with such great ability, ai)d I can only say of him qualis ub incepto, Mr.Bearcroiitold y6ur lordship it was a statement of facts to r^ fresh the memory of the governors and direc- tors, and not meant to be published at the booksellers or stationers by a public sale. As to public or private, is it possiole for any bodj that reads a single page of it, or looks into any part of it, not to see that the publication was meant for general inspection, and meant at least to be seen by idi those whose rank and situation of life make them sovemors? and then it can hardly be supposed the ooiif- tents of it should not be perfectly (>ublic : aa to publication there *is little doubt it is to he considered as such, and that it is a libel ; as to the pubhshing it every where, though per*- haps it is not so universally publish^ as if there had been a sale of it ; but it ;haviaig been given to all the goyemors, thei%can be no doubt it would be &iown to your lo^shipi^ and that sill the kingdom must soon know of it. It is said it does not charge the dkrectees with firaud by any manner of means. What does it do in jthecaae of the butcher and of Ellis ? If your lordship turns to almost any one pagjein that book, the veiy word ^ifraudr occurs in ahnost every instance, cooruptioii must appear in the facts themselves ; that ip the prindfial idea, and that an e&tira-aubordi-
63]
18 GEORGE III. The Case of Captain Thomas Baillie, |^G4
once.
tioninjg the case of the Seven Bishops with the least £gree of lenity ; it was upon resisting an illegal order which had been made, and it became the catechism of almost every subject in the kingdom ; it appears there were certain specific acts required of them which were iUe- eal. Was any specific act required of Mr. BailMe ? In^ the next place what was said to ibe a libel in them, was couched in terms more decent than any fh&t ever aopeared be- fore in the history of England, and that could not have been proved without their confes- sion, which was saueezed out of them by the privy council, not oy any proper process ; the names of the counsel then were Saunders, Pollexfcn, Sommers, and others. Is this deli- vered in that cautious and delicate way? Does it contain such form and at the same time such proper language for subjects in the exertion of their duty, with a due regard to the ccmstitutiou ? Is that Mr. Baillie*s case ? No, on the contrary, every page is full of the harshest terms ; it is not Viierely stating them as matters of flippancy, and a little warmth which an honest intention might naturally produce, but there are innumerable passages expressed in the strongest terms. Your lord- ships have the book, and I might put it to the test to see whether the language is not li- bellous.
I think the construction put upon the affi- davits is denied by Mr. Erskine pointedly. I have not any idea but in your lordships' judg- ment Mr. Stuart falls under a very different description from the rest; in so far as the ■buildings, decorations, and alterations of buildings have been altered, it was owing to bad design that he says the buildings have been altered, and it must be so when you con- vert a palace into an hospital; he says altera- tions have been made because the number of pensioners have been enlarged, and he denies any unnecessary works bemg done with a view to enrich himself, and 1^ expressly de- clares all he has been concerned with has been in his apprehension necessary.
Court. The charge against Mr. Stuart is, he wants to have it a palace instead of an Hos- pital.
Mr. Macdonald, That he wanted to 4o so for his own profit I think it is.
nation to the direction of others was the case with all but a few of the particular managers of the Hospital, some of whom are contrac- tors, and then that the directors are from want of ability or integrity, imfit to be direc- tors of that Hospital, and that many other frauds might be proved ; and it is not proved to be simply confined' to those persons who are guilty of actual fraud.
But as for Mr. Murphy — to relieve Mr. Bail- lie, whom they had frightened with the terri- ble name of Mr. Morgan the special pleader, 80 as to h^ve almost thrown him into convulr sions, — ^he compares his case to the Seven Bishops ; that must be flattering indeed to hiin, to be compared with seven bishops at I should make an apology for men-
Court. He has sworn positively he did not mean that, you will find the words don't cany it.
Mr. Macdonald. The words in my appre-' hension chai^ Mr. Stuart with acceding to the enlargement of the building to his own profit, and vastly to the injury of the pen- sioners of the Hospital; if I understand it, it charges Mr. Stuart
Court. It charges him with making great rooms instead of 1 odgin^ for poor men ; other people might be of a difierent opinion, and may think there should be a mixture of both.
Mr. Macdonald. Is this no charge upon Mr. Stuart, that for the purpose of a ^ob he recommends a friend to clean the paint- ings in the hall ? he says a friend of his wUl clean it for 1,000/. Is not that meant as an impuftation, when it is said it might be done tor 250/.? but his proposals were sent in two months after Mr. Stuart's pro-- position was accepted. It is one of the most beautiful things in this kingdom, and as to the equity of this recommendation, if it was to be done by the yard it would amount to four or five times that sum ; besides it is material into whose hands it goes -. it is not so much for the mere labour as the price you pay for a man's art in the business. Is it no imputation upon Mr. Stuart that he goes hand in hand with such persons f My lord, Mr Stuart swears he did it not with any view but to preserve that profitable part of the building ; if it should be considered as no merit, certainly there is no foundation for any imputation, and in that case, as upon liis part against Mr. Baillie, I dare sa^ he would be as well satisfied if it is not, as if the information is filed, if no merit is allowed,
Srovided there was no imputation. I will not etain your lordship upon a subject of this sort any longer, I will only just bee leave to state to your lordship the state of the suspen- sion of Mr. Baillie ; when so much confiision had been bred in the Hospital bv these dis»- putes, and in some measure by tne publica- tion of Mr. Baillie, and when the Hospital was in confusion, the lords of the Admiralty, finding the business of the Hospital almost stopp^, they thought fit to suspend Mr. Baillie, only leaving mm in possession of his apartments : in other cases they would not. when a person is suspended, have permitted the use of their apartments without a very particular application. There he remains still; what will become of Mr. Baillie afler this application, remains in the breasts of the lords of the Admiralty, the directors have no- thing to do with the necessity the lords of ti^e Admiralty thought themselves under U> sus* pend Mr. Baillie. At Mr. Bculhe's request they thought fit to have a committee to en« quire into it, this is appointed by a general court, the persons named were of respectable characters; upon the enquiry being made, they make their report, which respect them* selves and their ownservants, the surveyoTi
m
TopeeHng the Royal Hospital at Greenixich* A. D. 1778.
[66
tbe dx-penny receiver, the chaplain,* and the others. How was it possible to do this in any other mode ? The directors are in a manner the masters, for a time, of the servants of the Hospital, their good or ill conduct is to be enimined by them, they are the persons to complain of abuses; could it be by persons out of the Hospital a complaint could be made ? Certainly not In the first place they would not understand the business; in the neit place it is said it was not proper to com^ plain to these boards, or to bring it before them, for Mr. Baillie says the directors are accused, and they are not to be made judges. It is true every one of the directors were ac- cused in a lump, they were accused of .sur- reoderinf their powers to a few that do at- tend, ana sufficing them to waste the finances of the Hospital in every way they could for their own profit. It was impossible that could be the case; they made a report upon this enquky, and I tnink they falsify every part if not the whole of these charts. My lord, bow was it possible a publication of this sort should make its appearance at the Hospital, and not extend itseltmuch farther ; then pub- lishing it at such a critical moment, it was readering it impossible for the servants of tHe Hospital to carry on their respective business ID their departments, when they were charged vith supplying the men with bad food, bad raiment, and every tiling else wrong, every species of charge that could disgust these men that are entitled to national protection and compas^n ; these gentlemen have had strange pictures drawn of them, and some very ably; Mr. Mylne and Mr. Cooke in particular. Mr. Mylne is as ingenious an artist as any can be, and when Mr. Mylne and Mr. Stuart are attacked in such a way as this, charged with such a breach of duty to this Hospital, and those thinzs imputed to them that might diminish them much in the esteem of every body, and more especially the rev. Mr. Cooke has been treated as a man of his profession ought not to be ; finding these men stigmatiz^ in this way, it was im- possible for the directors to do otherwise tlian they did. Your lordship sees the hbel itself isfer beyond any comment upon it; if your lordship sho\dd think it of an injurious nature and libellous, your lordship will make this rule absolute, as the suspension of Mr. Baillie can "oake DO difference as to these gentlemen, vho are accused of doing wrong as members of a public body in their public papacity.
Mr, Dunning made an apolo^ for troubling ^ Court, as he observed sufficient had been »idby the gentlemen before him, to explain tl»e ground upon which they hoped the rule would be mane absolute, ana he should sp^e ninaself the trouble of saying more, as^it would al become him to trespass upon the time of
lerTaiU of the Hoapital are a)»» di-
*T1ieie **"*»»• Orig. Ed,
VOL XXI,
the Court, especially considering the [opinion he entertained of the matter and abilities the
fentlemen had shewn who went before him ; e should therefore leave it to his friend Mr. Morgan, who stood in a particular situation to explain the matter more fully in defence of himself and his cUents.*
The Earl of Mansfield :
There has ^eat heat appeared upon this motion, and this motion has taken up a great deal of time unnecessarily, and it is not to be wondered at, for the arguments have gone into a variety of matter, not at all before the Court, and have chargecl persons who are not here to defend themselves, and not being here they have no opportunity to reply to them, upon vague assertions, not used upon one side more than another. Mr. Morgan has bee^ even with the chaises of that sort without any affidavit at all ; but it is charged by affidavits by way of answer, to which there has been no opportunity of making a reply, 'and it has opened a large field, which we can- not possibly go into.
This is an application for an information for a libel, and it has been truly said, it is an ap- plication for an extraordinary interposition of the Court, and that interposition must be guided by all the circumstances of the appli- cation, and the answer that is given to it.
It aon*t follow because tfaft matter is a libel; it don't follow, because that libel is published, that therefore this Court should grant an information.
The parties have a right to go to a grand jurv by way of indictment. They have a right to bring an action; and therefore the Court always weighs the circumstances, and particularly the state of the case l^d before them when the application is made.
And it is expected when the application is made, that the true and full state of the case should be then laid before the Court; because if there is that in it kept behind, which, if it had been disclosed, would have prevented the rule fi-om being made at all ; all the ex-^ pence that is occasioned by it, is owing to those who have kept any thing behind.
In this book, as it is called, I have no doubt but there is a great deal of that^ which, in its own nature, is defamatory and hbellous.
It charges these officers with fraud, with abuse of office, with incapacity, with neglect- ing the interest of the Hospital, and breaking the duly of their trust i I nave no doubt but
* N. B. See Mr. Mor)|ran's evidence in the Hooto of Lords IB defence of himself and client^.
As four eiument connitet of disUngnished merit and abilities had followed each other on the part of the prosecotors, it it thoaght unnecesaar y to lengthen these proceedings, already too ToluminonSp wiUi tho speeches of the rest of their ooansel, for however ingcnions their argoventa might have been, tbet were eTideoUy onfooBded in iact and law, tbej aro therefore omitted for the si^e of brevity. ^On^« Edit,
F.
67]
18 GEORGE III. The Case ofCapkin Thomas BaUlie,
C0S
that in its own nature, many of the particular parts pointed out] bv those who apply, are in their own nature, defamatory and libellous. And wit}i regard to Mr. Stuart and Mylne^ whom captain Baillie vindicates by his affi- davit, and says, he never meant to charge, personally with doing any thing wrong ; yet most undoubtedly there is an insinuation in it ; no man can read it that don't understand it as they do.
If a charge is made, that they that had ac- coimts to pass, were sitting as directors; it certainly infers they made a bad use of sitting upon their own accounts.
If a charge h made of the computation being much too large, with respect to a man that was to have the paintings of the Hospital retouched and coloured for uie benefit of^the Isociety; it carries certainly an inference of something wrong and improper in it.
Tims it stands in general^ barely upon the view of the subject matter of this book.
With regard to the publication, it is most certainly true, the distinction taken at the bar is sound and well founded. In a proceeding (in a court of justice) of the parties^ that are under the control ot the Court, notning can be a libel ; because if it is scandalous or