Lords. Ay, ay. Then the white staff being delivered to the Lord High Steward by the gentleman nsher of the Black Rod on his knee, his grace stood up uncovered, and holding the staff in both his hands, broke it in two, and declared the commission to be dissolved; and then, leaving the chair, came down to the woolpack, and said, Is it your lordships' pleasure to adjourn to the Chamber of Parliament? Chamber of Parliament. Then the peers and others, returned back to the Chamber of Parliament in the same order they came down, except that his royal highness the duke of Cumberland walked after the lord chancellor. livres sterling. Le criminel qui sait lire de lui refuser. Le juge, qui était réputé par l'ancienne loi ne savoir pas lire lui-même, s'en rapporte encore au chapelain de la prison, qui présente un livre au condamné. Ensuite il demande au chapelain, Legit?' lit-il? Le chapelain répond, ‘Legit ut clericus,' il lit comme un clerc. Et alors on se contente de faire marquer d'un fer chaud le criminel à la paume de la main. On a eu soin de l'enduire de graisse, le fer fume et fait un siflement, sans faire aucun mal au patient réputé clerc.” nefit of clergy. The passage affords an amusing instance of the ease with which bis senten-mande un bénéfice de clergie: on ne peut le tious flippancy compresses into a very small space a copious mass of false statement and impertinent reflection. "On était si savant vers le dixième et onzième siècle, qu'il s'introduisit une coutume ayant force de loi en France, en Allemagne, en Angleterre, de faire | grace de la corde à tout criminel condamné qui savait lire; tant un homme de cette érudi tion était nécessaire à l'état. Guillaume le bâtard, conquérant de l'Angleterre, y porta cette coutume. Cela s'appelloit bénéfice de clergie, beneficium clericorum aut clergicorum.' "Nous avons remarqué en plus d'un endroit, Concerning the doubt (mentioned, p. 640 que de vieux usages perdus ailleurs se retrou- and afterwards), whether homo' included both vent en Angleterre, comme on retrouva dansgenders, see Barrington's Observ. on 10 Ed. S, l'ile de Samothrace les anciens mystères d'Or- stat. 3; 20 H. 6, c. 9, and 1 Edw. 6. phée. Aujourd'hui même encore ce bénéfice de clergie subsiste chez les Anglais dans toute sa force pour un meurtre commis sans dessein, et pour un premier vol, qui ne passe pas cinq cents For more concerning trials of Peers and Peeresses, see the Case of lord Ferrers, vol. 19, p. 886. 552. Proceedings against JOHN HORNE, Clerk, on an Information in the King's-Bench by the Attorney-General, for a Libel: 17 GEORGE III. A. D. 1777. In this Case, the report of the proceedings said present sovereign lord the king prosecutes had upon the Trial at Guildhall, and upon in this behalf, in his proper person comes into the Attorney-General's Motion for Judg-king before the king himself, at Westminster, the court of our said present sovereign lord the ment in the Court of King's-bench at Westminster, was published by the Defendant, Mr. Horne. I have subjoined an account, (compiled from Mr. Cowper's Reports and Brown's Cases in Parliament) of the subsequent proceedings before the House of Lords. 1. THE TRIAL AT GUILDHall. London, to wit. BE it remembered, That Edward Thurlow, esq. attorney general of our present sovereign lord the king, who for our in the county of Middlesex, on Thursday next after fifteen days from the day of St. Martin in this same term, and for our said lord the be informed, that John Horne late of London, king giveth the court here to understand and clerk, being a wicked, malicious, seditious, and ill disposed person, and being greatly disaffect ed to our said present sovereign lord the king and to his administration of the government of this kingdom and the dominions thereunto belonging, and wickedly, maliciously, and seditiously intending, devising, and contriving to stir up and excite discontents and seditions* With the following title: The Trial at among his majesty's subjects, and to alienate large of John Horne, esq., upon an Informa- and withdraw the affection, fidelity, and alletion filed Ex Officio by his majesty's attorney-giance of his said majesty's subjects from his general, for a Libel, before the right hon. William earl of Mansfield, in the court of King's-bench, Guildhall, on Friday the 4th of July, 1777. Published by the defendant 'from Mr. Gurney's short-hand notes. -Nec bellua tetrior ulla est, said majesty, and to insinuate and cause it to be believed that divers of his majesty's innocent and deserving subjects had been inhumanly * As to the operation of these words, see lord Ellenborough's Judgment in the Case of the King against Phillipps, 6 East, 464. 4 wicked, malicious, scandalous, and seditious libel, of and concerning his said majesty's government and the employment of his troops, according to the tenor and effect following; that is to say, King's Arms tavern, Cornbill, June 7, 1775. At a special meeting this day of several members of the Constitutional Society, during an adjournment, a gentleman 'proposed that a subscription should be imme 'present who might approve the purpose, for raising the sum of 100%. to be applied to the relief of the widows, orphans, and aged parents of our beloved American fellow-subjects, murdered by his said majesty's troops in the province, colony, or plantation of the Massachusets-Bay in New-England, in America, belonging to the crown of Great-Britain, and unlawfully and wickedly to seduce and encourage his majesty's subjects in the said province, colony, or plantation, to resist and oppose his majesty's government, on the 8th day of June, in the 15th year of the reign of our present sovereign lord George the third, by the grace of‹diately entered into by such of the members God of Great-Britain, France, and Ireland, king, defender of the faith, &c. with force and arms at London aforesaid, in the parish of St. Mary-le-Bow, in the ward of Cheap, wickedly, maliciously, and seditiously did write and pub-who, faithful to the character of Englishmen, lish, and cause and procure to be written and 'preferring death to slavery, were for that reapublished, a certain false, wicked, malicious, son only inhumanly murdered by the king's' scandalous, and seditious libel of and concern- (again meaning his majesty's) troops at or ing his said majesty's government and the em- near Lexington and Concord, in the province ployment of his troops, according to the tenor ' of Massachusets' (meaning the said province, and effect following: King's-Arms tavern, colony, or plantation of the Massachusets • Cornhill, June 7, 1775. At a special meeting Bay in New England, in America) on the this day of several members of the Constitu- 19th of last April; which sum being imme'tional Society, during an adjournment, a gen- 'diately collected, it was thereupon resolved tleman proposed that a subscription should be 'that Mr. Horne' (again meaning himself the 'immediately entered into by such of the mem- said John Horne) ' do pay to-morrow into the ⚫bers present who might approve the purpose, hands of Mess. Brownes and Collinson, on for raising the sum of 100l. to be applied to 'the account of Dr. Franklin, the said sum of the relief of the widows, orphans, and aged 100/. and that Dr. Franklin be requested to 'parents of our beloved American fellow sub- apply the same to the above-mentioned pur'jects, who, faithful to the character of Eng-pose; John Horne' (again meaning himself - lishmen, preferring death to slavery, were for that reason only inhumanly murdered by the 'king's' (meaning his said majesty's) troops at or near Lexington and Concord, in the pro'vince of Massachusets' (meaning the said province, colony, or plantation of the Massachusets-Bay m New-England, in America,) on the 19th of last April; which sum being im'mediately collected, it was thereupon resolved that Mr. Horne' (meaning himself the said John Horne) do pay to-morrow into the hands of Mess. Brownes and Collinson, on account of Dr. Franklin, the said sum of 100l. and that Dr. Franklin be requested to apply the same to the above-mentioned purpose; John Horne' (meaning himself the said John Horne) in contempt of our said lord the king, in open violation of the laws of this kingdom, to the evil and pernicious example of all others in the like case offending, and also against the peace of our said present sovereign lord the king, his crown and dignity and the said attorney-general of our said lord the king for our said lord the king further gives the court here to understand and be informed, that the said John Horne being such person as aforesaid, and again unlawfully, wickedly, and seditiously intending, devising, and contriving as aforesaid, afterwards, to wit, on the 9th day of June in the 15th year aforesaid, with force and arms at London aforesaid, in the parish and ward aforesaid, wickedly, maliciously, and seditiously printed and published, and caused and procured to be printed and published, in a certain newspaper, intitled, The Morning Chronicle and London Advertiser, a certain other false, : the said John Horne) in contempt of our said 6 ་ in the like case offending, and against the peace of our said lord the king, his crown and dignity: and the said attorney general of our said present sovereign lord the king for our said lord the king further gives the Court here to understand and be informed, that the said John Horne being such person as aforesaid, and contriving and wickedly and maliciously devising and intending as aforesaid, afterwards, to wit, on the 9th day of June in the 15th year aforesaid, with force and arms at London aforesaid, in the parish and ward aforesaid, wickedly, maliciously, and seditiously did print and publish, and cause and procure to be printed and published, a certain other false, wicked, malicious, scandalous, and seditious libel of and concerning his said majesty's government and the employment of his troops, according to the tenor and effect following; that is to say, King's Arms tavern, Cornhill, June 7. At a special meeting this day of several mem inhumanly murdered by the king's' (meaning his said majesty's) troops at or near Lexing ton and Concord, in the province of Massa'chusets' (meaning the said province, colony, | or plantation of the Massachusets Bay in New England, in America) on the 19th of last April; which sum being immediately collected, it was thereupon resolved, that Mr. ◄ Horne' (again meaning himself the said John Horne) do pay to-morrow into the hands of Mess. Brownes and Collinson, on the account of Dr. Franklin, the said sum of 100l. and that Dr. Franklin be requested to apply the 'same to the above-mentioned purpose; John Horne' (again meaning himself the said John Horne) in contempt of our said lord the king, in open violation of the laws of this kingdom, to the evil and pernicious example of all others in the like case offending, and also against the peace of our said lord the king, his crown and dignity and the said attorney general of our said lord the king for our said lord the kingbers of the Constitutional Society, during further gives the Court here to understand and 'an adjournment, a gentleman proposed that he informed, that the said John Horne being a subscription should be immediately entered such person as aforesaid, and contriving and into (by such of the members present who wickedly and maliciously devising and intend. 'might approve the purpose) for raising the sum ing as aforesaid, afterwards, to wit, on the 9th ' of 100l. to be applied to the relief of the widay of June in the 15th year aforesaid, atdows, orphans, and aged parents of our belov. London aforesaid, in the parish and ward afore- 'ed American fellow-subjects, who, faithful to said, wickedly, maliciously, and seditiously did the character of Englishmen, preferring death print and publish, and cause and procure to be 'to slavery, were for that reason only inhuprinted and published, in a certain other news- manly murdered by the king's' (again meanpaper, entitled, The Public Advertiser, a cer- ing his said majesty's)' troops at or near Lextain other false, wicked, scandalous, malicious, ington and Concord, in the province of Masand seditious libel of and concerning his said 'sachusets' (meaning the said province, colony, majesty's government and the employment of or plantation of the Massachusets-bay in Newhis troops, according to the tenor and effect England, in America) on the 19th of last following; that is to say, 'King's Arms tavern, April; which sum being immediately colCornhill, June 7. At a special meeting this lected, it was thereupon resolved that Mr. ' day of several members of the Constitutional 'Horne' (again meaning himself the said John Society, during an adjournment, a gentleman Horne) do pay to-morrow into the hands of proposed that a subscription be immediately 'Mess. Brownes and Collinson, on accourt of entered into (by such of the members present 'Dr. Franklin, the said sum of 100%, and that 'who might approve the purpose) for raising 'Dr. Franklin be requested to apply the same the sum of 100l. to be applied to the relief of to the above-mentioned purpose; John Horne' the widows, orphans, and aged parents of our (again meaning himself the said John Horne) beloved American fellow-subjects, who, faith-in contempt of our said lord the king, in open ful to the character of Englishmen, preferring death to slavery, were for that reason only inhumanly murdered by the king's' (meaning his said majesty's) troops at or near Lexington and Concord, in the province of Massa"chusets' (meaning the said province, colony, or plantation of the Massachusets Bay in New England, in America) on the 19th of last April; which sum being immediately collected, it was thereupon resolved that Mr. Horne' (again meaning himself the said John Horne) do pay to-morrow into the hands of * Mess. Brownes and Collinson, on the account of Dr. Franklin, the said sum of 100l. and that Dr. Franklin be requested to apply the 4 same to the abovementioned purpose; John Horne' (again meaning himself the said John Horne) in contempt of our said lord the king, in open violation of the laws of this kingdom, to the evil and pernicious example of all others violation of the laws of this kingdom, to the evil and pernicious example of all others in the like case offending, and also against the peace of our said present sovereign lord the king, his crown and dignity: and the said attorney-general of our said present sovereign lord the king for our said lord the king further gives the Court here to understand and be informed, that the said John Horne being such person as aforesaid, and contriving and wickedly and maliciously devising and intending as aforesaid, afterwards, to wit, on the 9th of June in the 15th year aforesaid, with force and arms at London aforesaid, in the parish and ward aforesaid, wickedly, maliciously, and seditiously did print and publish, and cause and procure to be printed and published, a certain other false, wicked, malicious, scandalous, and seditious libel, in which said last-mentioned libel are contained, amongst other things, divers false, 6 scandalous, malicious, and seditious matters of ous example of all others in the like case ofand concerning his majesty's government, and fending, and also against the peace of our said the employment of his troops, according to the present sovereign lord the king, his crown and tenor and effect following; that is to say, dignity and the said attorney-general of our 'King's Arms Tavern, Cornhill, June 7. At a said lord the king for our said lord the king 'special meeting this day of several members further gives the Court here to understand and of the Constitutional Society, during an ad- be informed, that the said John Horne being 'journment, a gentleman proposed that a sub- such person as aforesaid, and again unlawfully, 'scription should be immediately entered into wickedly, and seditiously intending, devising, (by such of the members present who might and contriving as aforesaid, afterwards, to wit, approve the purpose) for raising the sum of on the 15th day of July, in the 15th year afore100l. to be applied to the relief of the widows, said, with force and arms at London aforesaid, orphans, and aged parents of our beloved in the parish and ward aforesaid, wickedly, maAmerican fellow-subjects, who, faithful to the liciously, and seditiously printed and published, 'character of Englishmen, preferring death to and caused and procured to be printed and pub'slavery, were for that reason only inhumanly lished, in a certain other news-paper, intitled, 'murdered by the king's' (again meaning his The Public Advertiser, a certain other false, said majesty's) troops at or near Lexington wicked, malicious, scandalous, and seditious and Concord, in the province of Massachusets' libel of and concerning his said majesty's go(meaning the said province, colony, or plan- vernment and the employment of his troops, tation of the Massachusets Bay in New Eng- according to the effect following; that is to land, in America) on the 19th of last April,' say, '' (meaning himself the said John in contempt of our said lord the king, in open Horne) think it proper to give the unknown violation of the laws of this kingdom, to the 'contributor this notice, that I' (again meaning evil and pernicious example of all others in the himself the said John Horne) did yesterday like case offending, and also against the peace pay to Mess. Brownes and Collinson, on the of our said present sovereign lord the king, his account of Dr. Franklin, the sum of 50%. and crown and dignity: and the said attorney ge- 'that I' (again meaning himself the said Jobu neral of our said lord the king for our said lord Horne) will write to Dr. Franklin, requesting the king further gives the Court here to under him to apply the same to the relief of the stand and be informed, that the said John widows, orphans, and aged parents of our be Horne being such person as aforesaid, and loved American fellow-subjects, who, faithful again unlawfully, wickedly, maliciously, and to the character of Englishmen, preferring seditiously intending, devising, and contriving 'death to slavery, were' (for that reason only) as aforesaid, afterwards, to wit, on the 14th day inhumanly murdered by the king's' (again of July, in the 15th year aforesaid, with force meaning his said majesty's) troops at or near and arms at London aforesaid, in the parish Lexington and Concord, in the province of and ward aforesaid, wickedly, maliciously, 'Massachusets' (meaning the said province, and seditiously did write and publish, and cause colony, or plantation of the Massachusets Bay and procure to be written and published, a cer- in New England, in America) on the 19th of tain false, wicked, malicious, scandalous and last April; John Horne,' (again meaning himseditious libel of and concerning bis said ma- self the said John Horne,) in contempt of our jesty's government and the employment of said lord the king, in open violation of the laws his troops, according to the tenor and effect of this kingdom, to the evil and pernicious exfollowing: I' (meaning himself the said John ample of all others in the like case offending, Horne) think it proper to give the unknown and also against the peace of our said lord the ⚫ contributor this notice, that I' (again mean- king, his crown and dignity: and the said ating himself the said John Horne) did yester- torney-general of our said present sovereign day pay to Messieurs Brownes and Collinson, lord the king for our said lord the king further on the account of Dr. Franklin, the sum of gives the Court here to understand and be in50%. and that I' (again meaning himself the formed, that the said John Horne being such said John Horne) will write to Dr. Franklin, person as aforesaid, and contriving and wickedly requesting him to apply the same to the relief and maliciously devising and intending as of the widows, orphans, and aged parents of aforesaid, afterwards, to wit, on the said 15th • our beloved American fellow-subjects, who, day of July in the 15th year aforesaid, with faithful to the character of Englishmen, pre- force and arms at London aforesaid, in the ferring death to slavery, were for that reason parish and ward aforesaid, wickedly, malicionly inhumanly murdered by the king's' ously, and seditiously did print and publish, (meaning his said majesty's) 'troops at or and cause and procure to be printed and pubnear Lexington and Concord, in the province lished, a certain other false, wicked, malicious, • of Massachusets,' (meaning the said province, scandalous, and seditious libel of and concerncolony, or plantation of the Massachusets Baying his majesty's government and the employin New England, in America) on the 19th of ment of his troops, according to the tenor and last April; John Horne,' (again meaning effect following; that is to say,I' (meaning himself the said John Horne) in contempt of himself the said John Horne) think it proper our said lord the king, in open violation of the 'to give the unknown contributor this notice, laws of this kingdom, to the evil and pernici-that I' (meaning himself the said John Horne) VOL. XX. 2 U Then the Information was opened by Mr. Buller. Lord Mansfield. Certainly. Mr. Horne. Gentlemen of the jury. Lord Mansfield. No. Not to the jury. If you make an objection to the irregularity of the proceedings, you must address me. did yesterday pay to Messieurs Brownes and Collinson, on the account of Dr. Franklin, the sum of 50l. and that l' (again meaning himself the said John Horne) will write to Mr. Horne. My lord, with your lordship's Dr. Franklin, requesting him to apply the permission, I believe it is proper for me, at this same to the relief of the widows, orphans, and time, before Mr. Attorney-General proceeds, to aged parents of our beloved American fellow-make an objection; and to request your lordsubjects, who, faithful to the character of ship's decision concerning a point of practice Englishmen, preferring death to slavery, in the proceeding of this trial. Have I your were for that reason only inhumanly mur- lordship's leave? dered by the king's' (again meaning his said majesty's) troops at or near Lexington and Concord, in the province of Massachusets' (meaning the said province, colony, and plantation of the Massachusets-Bay in New EngJand, in America) on the 19th of last April; John Horne' (again meaning himself the said John Horne) in contempt of our said lord the king, in open violation of the laws of this kingdom, to the evil and pernicious example of all others in the like case offending, and against the peace of our said present sovereign lord the king, his crown and dignity: whereupon the said attorney-general of our said lord the king, who for our said present sovereign lord the king prosecutes in this behalf, prays the consideration of the court here in the premises, and that due process of law may be awarded against him the said John Horne in this behalf, to make him answer to our said present sovereign lord the king touching and concerning the premises aforesaid, &c. E. THURLOW.* Friday, July 4, 1777. As soon as the court was opened, the special jury were called over: eleven only appearing, Mr. Attorney General prayed a tales. The box containing the names of the common jury standing open upon the table, the Associate took out a paper, and, shewing it to Mr. Horne, asked, if he had any objection to that man's being sworn on the jury? Mr. Horne replied, "I object to that name, and for this reason: desire that the box may be shut and shaken; and when that is done, I shall have uo objection to any name." The box was accordingly shut and shaken, and a name drawn out; but another of the special jury coming into court, the talesman was not sworn. The following Special Jury were sworn: Afterwards lord Thurlow and Lord Chan cellor. Mr. Horne. I am well aware of it: and f hope that your lordship will, upon this and other occasions, hear me before you suppose me to be in the wrong. I was not going to address my argument nor my objection to the jury; if your lordship will only permit me to request their attention; because I have frequently observed upon trials, that in all cases almost, when application has been made to the judge to decide upon any objection, the jury have been generally supposed to be in a manner out of court; and I therefore now address myself to the jury, only to request their attention, and for no other purpose. Lord Mansfield. Very well. Go on. Mr. Horne. Gentlemen of the jury, what I have said to his lordship, if you heard it, may perhaps make it unnecessary for me to address you. Gentlemen, though what I am going to say to his lordship respects a matter of law and practice of the Court, yet I meant to request your attention, because you may find perhaps that the decision may concern you to hear it. My lord, I understand (and I think I see good reasons why it should be so) that it is the usual practice and wholsome custom of the Court, in trials of this kind, that unless the defendant examines witnesses in his defence, the defendant's answer closes the pleading: and it is not the practice, in that case, that the counsel for the prosecution should reply. But, my lord, in the late trials of the printers, for printing and publishing the advertisement now in question, I observed that Mr. Attorney-General claimed and exercised the peculiar privilege of replying, notwithstanding that no witnesses had been called for the defendant. My lord, with your lordship's permission, I mean to submit my reasons to your lordship in support of my objection to this claim of Mr. Attorney-General in the present trial. Lord Mansfield. You come too early for the objection; because the objection, if there is any foundation in it, should be when he gets up to reply. Mr. Horne. My lord, I own I did expect that Mr. Attorney-General would urge soinething of that kind against what I have said. I stopped, expecting that answer from him; because, my lord, he may, very likely, imagine it to be a part of the duty of his office to baffle me in any manner, and to take all advantages |