Within the pages of the Political Register, William Cobbett transformed an account from Ely into a biting philippic. His article feigned to demand that the militiamen be flogged afresh, turning back upon the loyalists the very reproaches they were wont to level at Napoleon. A year later, that selfsame composition brought him before the Court of King’s Bench: in the eyes of the Crown, it was a seditious libel; in Cobbett’s, a satire directed against a measure championed by Lord Castlereagh.
In June 1810, Cobbett stood in Westminster Hall. The Attorney General, Sir Vicary Gibbs, contended that beneath the cloak of mockery lay an overt incitement to insubordination.
The root of the affair lay in the Isle of Ely. In 1809, local militiamen had raised an outcry over a stoppage from their pay. The Courier attributed their unrest to a deduction made for their knapsacks; Cobbett would later speak of a dispute touching their marching guinea. The prosecution termed it outright mutiny. Five ringleaders were condemned by a court-martial to five hundred lashes apiece; a portion of the sentence was ultimately remitted, yet a part had already been inflicted. The German Legion was summoned to quell the disturbance, and thereafter to see the punishment executed.
The account in the Courier described the arrival at Ely of squadrons of the Legion from Bury, commanded by General Auckland. Cobbett set this intelligence at the very head of his column, taking it as the text for a political sermon. He then caught up the language of the chastisement, causing it to ring out like a command: let the men be flogged again, and every day. The repetition held up to scorn both those who deemed the torment well-deserved and those who rejoiced at the intervention of foreign hirelings.
Nor did he halt at the injustice suffered by the militiamen. His article set those lashes beside the harsh impressment which loyalist writers were accustomed to charge upon Napoleon in levying his troops. If Frenchmen were, as it was said, dragged to the colours in chains and at the point of the bayonet, what must be thought of English soldiers kept to their duty beneath the lash, under the eyes of a legion summoned from Germany? He thus turned the ministry’s own condemnations of French military coercion back upon its head. Nor did he spare the inhabitants of Ely, demanding of them how they could have looked upon such a spectacle without raising a hand.
When the trial opened, Cobbett’s defence commenced even before the pleadings were delivered. A talesman summoned to complete the jury was withdrawn upon an objection from Cobbett, who assigned no cause. Another, Henry Faver, was challenged as an alien. Upon swearing that he was born a British subject, Cobbett offered an apology for his error. These incidents were brief; yet they served to recall what hung in the balance: the trial of a print, conducted before men whose very selection might become a matter of contention and status.
The Attorney General opened the case for the Crown. He argued that the publication charged the King’s government with cruelty, injustice, and tyranny. In deriding the militiamen for submitting to the strokes, Cobbett, Gibbs contended, was reproaching them with having endured the punishment without offering resistance. In asking the townspeople of Ely how they could stand by and look on, he was rebuking them for not having delivered the men by force. The question was therefore not whether a subject might criticise a measure or a minister, but whether this publication was calculated to stir the soldiery against their officers and the populace against the Crown.
Thomas Harvey was called to establish the fact of publication. Cobbett acknowledged that he was both the author and proprietor of the journal; he admitted that the issue had been purchased from the bookseller Budd. Mr. Lukin confirmed that there existed a corps designated as the German Legion. The impugned passage was read aloud before the court. The prosecution thus held its words, their avowed author, and the immediate context to which they referred.
Cobbett then addressed himself to the judge and the jury. The whole issue, he insisted, turned upon intention. The ministry, he asserted, knew full well that his article was a satire levelled against the policy of Lord Castlereagh, not against the King. He made no secret of attacking the minister; what he resisted was the conversion of such an attack into a libel against the royal person. If the Crown could confound the two, he maintained, all stricture upon public measures would become fraught with peril.
He recalled the accusations previously heaped upon him, and the placards that, he averred, had defamed his character. He read a letter from Lord Sidmouth which contradicted a charge that had been levelled against him. He then returned to the affair at Ely: his subject was no covert exhortation to revolt, but the spectacle of young men flogged over a dispute of pay, under the supervision of foreign troops. He declared that the presence of those foreign soldiers had moved his indignation far more than the punishment itself. He maintained, moreover, that a man might oppose the employment of foreign troops without being a Jacobin or an enemy to his country.
To fortify his defence, Cobbett cited former debates in Parliament touching the employment of German horse, and read passages concerning alleged abuses committed by troops in Saxony. He brought forward complaints which he claimed to have heard in places where foreign soldiers had been quartered, as well as a letter from an English officer reproaching the conduct of the Legion at Talavera. These representations were the matter he himself advanced from the bar; Borrow offers no independent verification of them. Cobbett affirmed that he had written under the impulse of honest indignation, and that his own interests were bound up with the preservation of that government he stood accused of seeking to subvert.
Gibbs replied that the text contained something more than a mere expression of opinion. The jury, he said, were bound to consider its reiterations, its tendency, and the season of its appearance: coming hard upon a mutiny and a punishment decreed by law. The article extenuated the conduct of the condemned men and represented the arrival of the Legion as though its initial purpose had been to see them flogged. The Crown maintained that the force had been summoned first to suppress the mutiny, and only afterwards to ensure the execution of the sentence. To Gibbs, the satire was not merely ill-judged; it was an incitement to insubordination.
Lord Ellenborough directed the jury to consider the whole tenor of the publication. A series of repeated expressions, he observed, could not be viewed as words dropped in the heat of the moment; if the composition possessed a pernicious tendency, the jurors were bound to infer the intent from the effect. He declared that he entertained no doubt upon the matter: in his judgment, it was a seditious libel. After a deliberation of some two minutes, the jury returned a verdict of guilty.
Judgment was pronounced in the month of July. The court sentenced Cobbett to pay a fine of one thousand pounds and to suffer two years’ imprisonment in Newgate; Borrow’s transcript adds seven years’ recognizances to keep the peace, stipulating that he should remain in custody until the fine were discharged and the sureties found. The three other defendants were dealt with separately. Thomas Hansard, the printer, received three months’ imprisonment with sureties; Richard Bagshaw and John Budd, booksellers, two months apiece. The court thus visited the author with the heaviest retribution, while carrying responsibility downward to the very men who had set the type or sold the sheets.
Cobbett had sought to ensure that the stripes inflicted upon five militiamen should remain present before the public conscience. In court, the judges saw chiefly the contagion the writing might work upon the ranks and the crowd. A military chastisement had furnished the ground for a state prosecution; and a printed page carried its author to Newgate. The jury had reached their verdict in two minutes. The sentence, for its part, ordained two years in prison, and longer still should the fine and recognizances remain unpaid.