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common attorney or an advocate employed
Mr. Alderman Olider sworn. against you in a cause. Mr. Horne. But this, my lord, differs
Examined by Mr. Horne. widely. In what I shall call Mr. Attorney Mr. Horne. My lord, I call this witness to General to, he acts neither as attorney noras prove the truth of the assertions contained in advocate.
the advertisement. Lord Mansfield. State the question.
Sir, I must desire you first to speak to the Mr. Horne. My lord, I have many ques- particulars of a meeting called, during an adtions to ask him. He has paraded upon his journment of the Constitutional Society, in the honour, his conscience, and his duty.' He is year 1775. Was there a meeting called by not acting as an attorney or an advocate in the you in June 1775 ?-I believe there was ;
When he files an information, he is upon your application. then acting as a judge or a jury; and if he has Are you sure of it?--I am. not acted in it with that integrity with which Did you koow the purpose for which it was he would bave done upon oath, so much the called before it met?-Yes; I did. worse for bim. One chief reason why I desire Did you approve of that purpose ?-I did. to examine him is, to obtain this : that I may Was a proposal made to subscribe any point out a means by which an accusation in money, and for the purposes mentioned ? future shall not be brought against a man with | Yes, it was ; and by you. out an oath, at least from somebody. My lord, A sum of money was subscribed ?- There one question I mean to ask him is concerning was. that accusation which he has now brought : Did you contribute part of it?-I did. how it came to be brought? bow it came to be Was such a direction, as in the advertisedropped ? and some other circumstances at ment, given to me?--There was. tending it. He has talked so much of the fair. There is another advertisement of 50l. I pess, and the conscience, and the integrity of believe I need not read it; it is well understood. his motives in doing it, that I am sure it will Did I receive that 50l. from you in the name of Jook very comical if he refuses to swear to an unknown contributor ?-Through me. those declarations. If be will not swear to Was that 50l. given for the purposes menthese motives, without his oath I cannot be- tioned? --It was. lieve it: and if, contrary to my expectations, By whom ?..-Sir Stephen Theodore Janssen. he does swear to it, after his oath I shall be left I was also a subscriber to the same purpose. to exercise my owu judgment.
I mentioned in the course of my defence Att. Ger. To any matter so impertinent as what may otherwise perbaps be represented as tbat! If that gentleman bad had any question not true. Did I send by you, upon a relation of fact to have asked me relative to his defence, from you of a motion made for an act of parliaI would not have objected to haye sworn to ment to take away the right of appeal from the it; although I stand in the place of prosecutor subjects in cases of murder, did I, or not, send in this cause, wbere in point of form I might : that message which you heard me represent in but I put myself upon this, that I will not be my defeoce ?---You sent a message by me; examined to questions so impertinent as those and 1 dare say, from your accuracy of memory that bave been now proposed.
and your truth, you did deliver a message for Mr. Horne. My lord, the gentlemen of the the Attorney-General. Whether thought jury will please to observe then, that here is an that it would be of the same effect,-- I did menaccusation without an accuser. Your lordship tion to Mr. Rose Fuller the determination of smiles! Upon my word, my lord, I do not Mr. Horne to go all lengths in opposition to think it a thing to be laughed at. If I had that act which was to destroy the right of apthe honour to be talking with your lordship peal in cases of murder ; and I do believe in over a table, I should speak of it with the same my conscience his application prevented any seriousness, and not as a quibble. I hope the further steps being taken upon it. gentleman will upon oath justify that informa The fact, as I represented it, the witness tion, for the integrity of which he has been says is true.---Certainly so. baranguing. He will not !-Well, then, I
William Lacey sworn. must do without the evidence of the Attorney General.
Examined by Mr. Horne. Lord Mansfield. I cannot force him to be examined.
[A receipt for 1001. shewn to the witness. ] Mr. Horne. No, my lord, nor do I believe Is that your band-writing ?-t is. any body else could. Please to call lord Do you recollect that 1001. for which that is George Germaine,
your receipt, being paid in at your house? [Lord George Germaine was called by the I do. Cryer, bnt did not appear.]
In the name of Dr. Franklin !--On his acMr. Horne. He is gone to Germany too, count. I suppose, with general Gage.
Do you know by whom that was paid ?-I
have it in my book in the name of Mr. Horne. See bis trial before a Cuurt Martial, A, D. Do you recollect me to bave paid it myself? 1760.
-I do not: but it was paid.
you koow of any other sum paid ?-No: Mr. Horne. May I give it to the jury? I have got a copy as it stands in my book Lord Munsfield. No; I suppose they bave bere.
all read it years ago. Is tbere any thing besides the 100l. put in ? Mr. Horne. My lord, that is my misfortune No.
that it is so long ago. No 501. P-No. Where is Mr. Chetham ?-He is in Ireland.
[Mr. Horne begins to read it.] He is a clerk in your house?-He was. And used to receive money occasionally ?
Lord Mansfield. You must not read it. Yes.
Mr. Horne. I bave proved the publication by
the printer. Do
you koow his hand-writing :- I believe 1 should.
Lord Mansfield. It will have a different conLook at that receipt.
sequence, if you only mean to prove that there
was such an affidavit published. If you mean [A receipt for 501. was shewn to the witness.] to make that use of it, then you may produce Lacy. I believe that to be his writing.
the affidavit, or have it read. If you mean to
prove the contents of it, they must come from Mr. Horne. Call Mr. Gould.
the witness, and then you will bave a right to
bave it read. Mr. Eduard Thoroton Gould sworn. Mr. Horne. I mean both to prove the conExamiued by Mr. Horne.
tents true, and the publication of the affidavit:
that indeed, I have already proved. Did you in the year 1775 serve in a regiment of foot belonging to his majesty ?-I did.
Lord Mansfield. Then you may read the Were you present at Lexington and Concord affidavit, if you make use of the publication
of it. on the 19ih of April 1775?-I was.
Mr. Horne. I make use of both; that it How came you to be therei-As a subaltern officer, ordered there.
was so published, and charged, and that it is
true. Ordered by whom?-General Gage.
At what time did you receive those orders ?--- • The Public Advertiser, Wednesday, May I don't recollect immediately the time.
31st, 1775.' Was it on the 1916, 18th, or 17th of April ?--I believe it was on the 18th in the evening.
[The affidavit read.] Did you receive them personally from gene Are the contents of that affidavit true? ral Gage ?---No such thing.
They are; it was made at the time I was. Whom then ?--- From the adjutant of the re wounded and taken prisoner. giment.
Pray, do you know that the Americans upon When did you set out from Boston for Lex- that occasion scalped any of our troops ?--I ington?-I cannot exactly say the time in the heard they did; but I did not see them. morning, but it was very early, two or three You saw none?- I did uot. o'clock.
From whom did you hear it?--From a capThat is in the night in April, was it dark ?.- tain that advanced up the country. It was.
Were you, at the time when the orders were Did you march with drums beating ?-No, given to you to go to Lexington and Concord, we did not.
apprehensive of any attack by those Americans Did you march as silently as you could ?-against whom you went ?-We were as soon as There were not any particular orders given for we saw them ; we found them armed. silence.
Before you went from Boston ?-That day Was it observed ?-Nor it was not observed, not particularly by me.
How many miles is Lexington or Concord Were you taken prisoner at Lexington or from Boston ?- The farther is about 25 miles, Concord, or either of them ?-At the place the vearer is about 12. called Mopottama, in my return from Lex Did you know, bad you any iotelligence that ington.
the Americans of Lexington and Concord were, I shall ask you no questions that you dislike; at that time, marching, or intending to march give me a hint if there is any one you wish to to attack you at Boston ?-We supposed that decline-Did you make any affidavit:-Yes, I they were marching to attack us, from a condid.
tinued firing of alarm guns, cannon, or they Will you please to read that ? [Giving the appeared to be such from the report. wituess the Public Advertiser, May 31, 1775.] Lord Mansfield. Did you say cannon ?I believe that to be the exact substance of Cannon. the affidavit that I made.
Lord Mansfield. When was that ?--As soon
as we began the march, very early in the Lord Mansfield. It cannot be read without morving. the Attorney-General consents to it.
Mr. Horne. But did you hear those alarm Altorney General. I don't consent.
guns before your orders for the march were Lord Mansfield. If he consents to it, I bave given, or before your march begau ?-No. no objection.
But after you had begun your march?
Yes; after we began our march the alarm guns, having stated to you as one of the plainest, and began firing
clearest, and shortest propositions that ever was Did you suppose those alarm guns to be in laid before a jary. Gentlemen, it is certainly true, consequence of your having begun the march? the charge in the information consists in this, that -I cannot say.
he did write and publish, and cause and procure I will not desire you to suppose (though the to be written and published, a certain false, gentleman has supposed that they were coming wicked, malicious, scandalous, and seditious to attack bim) but do you know of any intelli- libel. I was afraid, when my speech was geoce whether the persons who fired the alarm loaded with the imputation of having thrown guns, whether those were the persons who out invectives in the terms of the information, were killed at Lexington and Concord ?-No; that the information had not been sufficiently I do pot.
explicit upon the true nature and quality of Mr. Horne. How those orders came you the libel which it offered to bring before you. I cannot tell, therefore I do not mean to examine admit that the information is explicit, that it is
direct, and that it perfectly and justly qualifies One of Jury. Pray who did the alarm guns the nature of the charge that is brougbt before belong to; to tbe Americans or our corps ? you
of scandalous and seditious. It is likewise From the provincials.
inferred that this is concerning his majesty's Mr. Horne. What do you mean by an alarm government, and the employment of bis troops ; gun? Alarm may be misunderstood.-Gould. The information has therefore undertaken to That is, what they term in the country an aların say, that the scurrilous matter which follows gun; it is a notice given to assemble the country. was delivered in writing, concerning the king's
After you had begun your march, you beard government, and concerning the employment these alarm gups ?--Yes.
of the troops. If it was delivered concerning Mr. Horne. My lord Percy, I thank your either, it is sufficient: that it was delivered lordship for your attendance. I will not concerning both, I take vow (by this time at trouble your lordship with any questions. ! least) to be perfectly clear. shall noi ask your lordship those questions 1 Then the matter of the libel is this : that at intended, since general Gage has not thought the Constitutional Society it was proposed a proper to attend: be is gone to Germany I un- subscription should be immediately entered derstand, and will not be back, I suppose-into for raising the sum of a hundred pounds, tbese three or four days!
to be applied in the manner in which it proLord Mansfield. Then you bave done? ceeds to specify afterwards. And the gentleMr. Horne. Yes.
man bas been at the trouble to prove, that that REPLY.
was not merely a conceit and device of his, in
order to introduce the charge that follows; but Altorney General. May it please your lord- that the charge which follows was (in point of ship, and gentlemen of the jury;
fact) introduced upon the previous act; which, The gentleman bas chosen to take the con- according to my poor conception of the thing, duct of bis defence bimself; and in the course does not deserve softer epithets than that which of the conduct of it, he has proceeded in as followed. It is no alleviation at least of the singular a way as I believe ever any cause was libel that he has published upon the governconducted that was ever tried in any court of ment, that it took such a commencement as it justice. He certainly bas done more than the did, and proceeded in such conduct as has been wisdom, than the propriei y, than the decency imputed. I thought it a cavdour, an article of of any counsel would have permitted him to du fairness to pames mentioned or even alluded tu on a similar occasion ; and if I conjecture bis in the most distant '
way, to suppose that it had aim aright, from the manner in which he has not been exactly in the way he thongbt fit to attempted the defence, he has more cast about state it. But whether it were or were not, in to be stopped in a great variety of parts, for the what view has he even said to you, that that sake of inaking it a topic of complaint, than circumstance, true or false, goes an inch toseriously stated them, as hoping they could be wards qualifying the virulence and indecency deemed by any by-stander (and more particu- of the libel that immediately follows it? The larly by you that are to judge of them) at all next words that he puts in are—" to be applied pertinent to bis defence. I did not recollect op to the relief of the widows, orphans, and aged the outset that I had so totally passed over the parents of our beloved American Sellow-subterms of this charge, much less that I had sojects, wbo, faithful to the character of Englishprofusely enlarged upon subjects foreign and men, preferring death to slavery, were, for that impertinent to that charge, as to lay me open reason only, inbumanly murdered by the to any reflections upon that account. It is not king's troops at or near Lexington and Conto my purpose, and therefore I will trouble cord, in the province of the Massachusets." you with no reflections upon those various Let us a little see, what is the nature of the stories (histories of various adventures in many observations he makes upon it. In the first parts of the world) with which he has thought place, that I left it exceedingly sbort. And the proper to interlard the speech le bas made to objection to my baving left it short was simply you upon this subject; which before I sit this: that I had stated no more to you but this, down, I hope I shall be perfectly justified in that of imputing to the conduct of the king's
troops the crime of murder, Now I stated it, I in the newspaper (either by advertisement or as imputing it to the troops ordered, as they otherwise) matter that was likely to cause an were, i pon the public service. And imputing impression upon the minds of the people at to that service the crime and the qualification large, or upon the minds of the jury, before of murder, was an expression scandalous and they heard that prosecution tried, did a most seditious in itself; reflecting highly upon those abandoned and a most wicked thing. Is that troops ; reflecting bigbly upon the conduct of the way that people are to be tried for their them; and reflecting upon them to all the lives ? Are they to be brought before a jury in purposes and conclusions which this joforma a regular course of trial, to be heard for themtion states But, it seems, I did not argue it selves upon the evidence then laid before them ? sufficiently! I confess very fairly, that to ar- and is the integrity of a libeller to interpose, by gue such propositions as those (according to writing down their reputation; and by endeathat gentleman's notion of arguing them suffi- vouring to instil into people, where they cannot ciently) is far beyond all tbe compass of all the be heard, where they have no opportunity talents and abilities that I have in the world. Ito contradict, and where witnesses cannot be cannot speak four bours in order to demon- examined either on one side or the other, an strate to you, that taxing people with the impression that they are guilty, without the crime of murder, and taxing the conduct of form, without the essence of trial ? If therepeople with that imputation, is a scandal upon fore there was such an advertisement as that The parties so reflected on. If there be a man published, that advertiseinent I hold to be a of more diffusive talents, of better talents at most wicked one. Prosecuting men that are speaking, who can expend four or five bours thought to be guilty, is a fair and an honest by enlarging upon that proposition in that action. In this case, what is the excose here? manner, I do not envy bim his talents; for my That they cannot be prosecuted. Supposing luogs would not be sufficiept, if my talents the accident of the distance from that side of
I trusted that I had sufficiently demon- the water and other accidents should so far iostrated that position.
tervene as to prevent the possibility of trying Now, on the otber side, what is the kind of those men, even if they had been guilty of answer that is made to this? In the first place, murder, would it follow as a conclusion upon be is to prove that it was murder ! Asserting that, that they shall be libelled ? and that it that it was murder over and over again in the sball be in the power of any man alive to raise speech, is tbe palliation, and is the defence of impressions behind their backs, by publishing this! But be is to prove that it was murder! I in the newspaper imputations to their disadconfess very fairly, that this is the first hour in vantage, which they cannot contradict or rewhich it ever entered into my imagination, that fute? calumniating them, accusing them of that species of proof could be allowed to a de- murder? The time would undoubtedly come in fendant ! I am not at all sorry that it has been which they would be lo he tried for it, if allowed : for the consequence has been to re- guilty: and to be tried for it under that sort of fute more than balf the speech, and more than impression! I am amazed that any man of ball The application of it ; tberefore I am not common sense could (even in his own case) sorry that it has been allowed. But I will imagine, that it would be tolerable doctrine in never, so long as I live, accede to this as a pro- the ears of people that have lived for years in a position of law, that a man shall be at liberty civilized country, that that was the true way in a libel to charge you with the crime of mur- of prosecuting upon the subject of murder! He der, and when he is iodicted for that libel (or told you a story of Glenco, which, if I underotherwise brought into judgment for it by in- stand bim right, went directly the reverse. formation,) that it should be competent for him They were to be tried. Unless he means to to put you to try, whether you have been guilty compare the authority of the Morning or Lonof murder or po, I did say, what common don Evening Post to the councils of the whole sense dictates, what the law of every civilized nation! if he means to make that.comparison state uoder heaven prescribes (and there is not (which he did not make, and which is too aba maxim of law to be fetched from any country surd for me to do for him ;), waking that, a or age that contradicts that,) that the map that degree of idle analogy would seem to arise ; calumniates, and does not accuse, deserves to but without that, absolutely none. be punished with exemplary severity. He told Now with respect to the rest, he has offered you a long story of murders supposed to bave by evidence also to establish, that this must been committed in St. George's Fields, where necessarily be a murder; and the fate of those be took to bimself the merit of baving prose- people, it seems, is to be tried by the effect of cuted that murder. As far as that part of tbe that evidence! And what does that evidence story goes, I dou’t quarrel with him. If be, amount to? Wby, that the king's troops, under seeing a transaction which he took to be mur the command of general Gage, were in an der, thought himself bound to prosecute that hostile country; and that it was impossible for transaction, honestly, candidly, and with bu- them to go upon any service ordered by that manity and fairness to the prisoner, as well as general and conducted by his officers) without to be fr ends of the deceased ; if he did that, I an attack : that the moment they went out of do not quarrel with lain : but whoever, in the Boston alarm guns were discharged, in order moment of prosecuting that murder, published to raise the power that possessed the country on
the other side upon them, and to make the at- and it gives me a ground for saying, that, if I tack upon them. And this is the medium by was short in applying the charges of the infor. which it is to be proved, that the soldiers who were
mation as I should have done, it is now com ordered by their commander to adrance from pletely applied. their post at Boston into that country, were All that part of the defence which went guilty of murder ; because they were sur perfectly wide and foreign to all practical applirounded upon the 18th and 19th of April, in cation to the case, I will now entirely drop. consequence of those alarm guns, with an At the same time I cannot do it without making armed force on the other side, in order to with this observation ; that, whatever be the degree stand and oppose their operations, they being of veracity claimed by and due to that genat that time in an hostile country! Why, if Itleman, in the particular words that he thinks had meant, if I had thought it consistent with proper to impute to the various people whose Jaw or with reason, to enter into a discussion of words he has thought fit to quote; as far as that question with him, whether be is a libeller my memory goes of the transactions which I or noi, for having charged them with murder do remember; as far as conjecture goes with by a printed paper, instead of charging them in regard to those I have not a perfect memory a more direct way; if I had thought it neces-of'; I believe, that this failing at least belongs sary 10 establish the case against him in the to his representation of them: that taking, as strongest and most precise manner, it would he has done, particular passages, for the sake have been by calling just such a witness as that, of remembering them to the disadvantage of in order to prove that the troops were themselves the speaker, he has stripped them of their con. attacked ; and that, upon the moment of their text. He has therefore made it impossible to going out of the place, they were surrounded recollect the whole, in order to see whether with bostile attack. But necessity, it seems, they would, or not, turn out such ponsense as necessity, according to the notion of law, is that he has imputed to those several speakers. It which self defence prescribes, that a man must may be true, for aught I can tell; though if go to the wall who is attacked. He must fly any body had asked me, whether I ever spoke first; and if he can escape by fight, then he upon that subject he mentions in the House of shall not justify himself by turning and repella Commons, 1 should have said no, directly ; ing the attack! What sort of understandings for I believe I did not. I believe Mr. Oliver does he imagine the audience to be composed I will not say, that he brought any such idle of, when he represents an expedition and attack message as that to me. I should have treated of this sort in that manner ? That the king's it with ridicule. I have no objection to controops, when they beard the alarm guns and verse with Mr. Oliver upon any subject he were attacked, were to fly, to get to the wall, thinks proper. He does me honour" by it. and drop their arms ! this is the notion of mili- But if he had brought me such a message from tary disposition in an hostile country! and this a person in Mr. Horne's situation, respecting is ihe law that the learned gentleman has iny conduct in parliament, a little laughing at learned from the State Trials, the source of his the message he must have excused. But he reading! and which he has set forth with a does not say he bronght me such a message. dexterity, and a species of understanding, and I don't know that I bure any part in that de. a sort of eloquence, which is peculiar to bim. bate. But be says, be took down some words ; And I must say now, it is more than I ever and that I said, it was a Gothic custom. If I beard before. If I had the honour of a con got up to make a speech upon a proposition of versation with him nine years ago, I had forgot law of that magnitude and extent, of such a it. I did not take notice of the conver variety of reading that that proposition was sation perhaps enough to retain it. I had open to, and contented myself with sitting down, still less an idea that his abilities were so con and saying, it was a Gothic custom; I sbonld spicuous. But this species of eloquence I take not bave bad any pretensions to the ear of that to be peculiar to himself; as it could not have House. If I made any discourse about it; been delivered by a counsel; it would have which I suppose I did, as he says I did; Í been absolutely impossible by a counsel used suppose it is as idle, as foolish a kind of speech to practice; it would bave been impossible to as it is possible for any man to make. I should a counsel, used to feel the weight of his argu- not wonder if I was refused all audience there ments, used to feel the ridicule of applying in all times to come, provided iny speeches such kind of arguments as these, and deterred were just those which I have had the (not by that means from doing it. No counsel misfortune, for I think it very natural) as I have would have thought himself warranted to do heard to-day. Other people bave shared exthis. He would not have had conceit enough actly the same fate. Is it a fair thing, with to think his own understanding so superior to respect to any judge, with respect to any court all that heard 'him, as to suppose he could of justice? Is it a fair thing to state one fifpass such a proposition upon his auditory, that tieth part of a cause depending before them the conduct of an army, in an hostile country, with an observation which the other forty-nine was to be like the case of a man indicted for parts would never have justified upon it? Is it murder to fly to the wall, for fear they should ihe part of a good citizen, of a man that revedo some mischief! This is the sort of defence rences the laws of his country, of a man that he has thought fit to make upon this subject; wishes any thing but aparchy to rise in a coun