common attorney or an advocate employed

against you in a cause.

Mr. Horne. But this, my lord, differs widely. In what I shall call Mr. Attorney General to, he acts neither as attorney nor as advocate.

Lord Mansfield. State the question. Mr. Horne. My lord, I have many questions to ask him. He has paraded upon his honour, his conscience, and his duty. He is not acting as an attorney or an advocate in the cause. When he files an information, he is then acting as a judge or a jury; and if he has not acted in it with that integrity with which he would have done upon oath, so much the worse for him. One chief reason why I desire to examine him is, to obtain this: that I may point out a means by which an accusation in future shall not be brought against a man with. out an oath, at least from somebody. My lord, one question I mean to ask him is concerning that accusation which be has now brought: how it came to be brought? how it came to be dropped? and some other circumstances attending it. He has talked so much of the fairness, and the conscience, and the integrity of his motives in doing it, that I am sure it will look very comical if he refuses to swear to those declarations. If he will not swear to these motives, without his oath I cannot believe it: and if, contrary to my expectations, he does swear to it, after his oath I shall be left to exercise my owu judgment.

Att. Gen. To any matter so impertinent as that! If that gentleman had had any question of fact to have asked me relative to his defence, I would not have objected to have sworn to it; although I stand in the place of prosecutor in this cause, where in point of form I might: but I put myself upon this, that I will not be examined to questions so impertinent as those that have been now proposed.

Mr. Horne. My lord, the gentlemen of the jury will please to observe then, that here is an accusation without an accuser. Your lordship smiles! Upon my word, my lord, I do not think it a thing to be laughed at. If I had the honour to be talking with your lordship over a table, I should speak of it with the same seriousness, and not as a quibble. I hope the gentleman will upon oath justify that information, for the integrity of which he has been baranguing.- He will not!-Well, then, I must do without the evidence of the Attorney General.

Lord Mansfield. I cannot force him to be examined.

Mr. Horne. No, my lord, nor do I believe any body else could.Please to call lord George Germaine.

[Lord George Germaine was called by the Cryer, but did not appear.]

Mr. Horne. He is gone to Germany too,* I suppose, with general Gage.

See his trial before a Court Martial, A, p. 1760.

Mr. Alderman Oliver sworn.

Examined by Mr. Horne.

Mr. Horne. My lord, I call this witness to prove the truth of the assertions contained in the advertisement.

Sir, I must desire you first to speak to the particulars of a meeting called, during an adjournment of the Constitutional Society, in the year 1775. Was there a meeting called by you in June 1775?-I believe there was; upon your application.

Are you sure of it?—I am.

Did you know the purpose for which it was called before it met?—Yes; I did.

Did you approve of that purpose?—I did. Was a proposal made to subscribe any money, and for the purposes mentioned?Yes, it was; and by you.

A sum of money was subscribed?—There was.

Did you contribute part of it? I did. Was such a direction, as in the advertisement, given to me?-There was.

There is another advertisement of 50%. I believe I need not read it; it is well understood. Did I receive that 50/. from you in the name of an unknown contributor?-Through me.

Was that 50%. given for the purposes mentioned?--It was.

By whom?-Sir Stephen Theodore Janssen. I was also a subscriber to the same purpose.

I mentioned in the course of my defence what may otherwise perhaps be represented as not true. Did I send by you, upon a relation from you of a motion made for an act of parliament to take away the right of appeal from the subjects in cases of murder, did I, or not, send that message which you heard me represent in my defence?---You sent a message by me; and I dare say, from your accuracy of memory and your truth, you did deliver a message for the Attorney-General, Whether I thought that it would be of the same effect,-I did mention to Mr. Rose Fuller the determination of Mr. Horne to go all lengths in opposition to that act which was to destroy the right of appeal in cases of murder; and I do believe in my conscience his application prevented any further steps being taken upon it.

The fact, as I represented it, the witness says is true.---Certainly so.

William Lacey sworn.

Examined by Mr. Horne.

[A receipt for 100%. shewn to the witness.] Is that your hand-writing?—It is. Do you recollect that 100/. for which that is your receipt, being paid in at your house?I do.

In the name of Dr. Franklin ?-On his account.

Do you know by whom that was paid ?—I have it in my book in the name of Mr. Horne. Do you recollect me to have paid it myself? -I do not: but it was paid.

troops the crime of murder. Now I stated it, as imputing it to the troops ordered, as they were, upon the public service. And imputing to that service the crime and the qualification of murder, was an expression scandalous and seditious in itself; reflecting highly upon those troops; reflecting highly upon the conduct of them; and reflecting upon them to all the purposes and conclusions which this information states. But, it seems, I did not argue it sufficiently! I confess very fairly, that to argue such propositions as those (according to that gentleman's notion of arguing them sufficiently) is far beyond all the compass of all the talents and abilities that I have in the world. I cannot speak four hours in order to demonstrate to you, that taxing people with the crime of murder, and taxing the conduct of people with that imputation, is a scandal upon the parties so reflected on. If there be a man of more diffusive talents, of better talents at speaking, who can expend four or five hours by enlarging upon that proposition in that manner, I do not envy him his talents; for my lungs would not be sufficient, if my talents were. I trusted that I had sufficiently demonstrated that position.

:

Now, on the other side, what is the kind of answer that is made to this? In the first place, he is to prove that it was murder! Asserting that it was murder over and over again in the speech, is the palliation, and is the defence of this! But he is to prove that it was murder! I confess very fairly, that this is the first hour in which it ever entered into my imagination, that that species of proof could be allowed to a defendant! I am not at all sorry that it has been allowed for the consequence has been to refute more than half the speech, and more than half the application of it; therefore I am not sorry that it has been allowed. But I will never, so long as I live, accede to this as a proposition of law, that a man shall be at liberty in a libel to charge you with the crime of murder, and when he is indicted for that libel (or otherwise brought into judgment for it by information,) that it should be competent for him to put you to try, whether you have been guilty of murder or no. I did say, what common sense dictates, what the law of every civilized state under heaven prescribes (and there is not a maxim of law to be fetched from any country or age that contradicts that,) that the man that calumniates, and does not accuse, deserves to be punished with exemplary severity. He told you a long story of murders supposed to have been committed in St. George's Fields, where he took to himself the merit of having prosecuted that murder. As far as that part of the story goes, I don't quarrel with him. If he, seeing a transaction which he took to be murder, thought himself bound to prosecute that transaction, honestly, candidly, and with humanity and fairness to the prisoner, as well as to the fr ends of the deceased; if he did that, I do not quarrel with him but whoever, in the moment of prosecuting that murder, published

in the newspaper (either by advertisement or otherwise) matter that was likely to cause an impression upon the minds of the people at large, or upon the minds of the jury, before they heard that prosecution tried, did a most abandoned and a most wicked thing. Is that the way that people are to be tried for their lives? Are they to be brought before a jury in a regular course of trial, to be heard for themselves upon the evidence then laid before them? and is the integrity of a libeller to interpose, by writing down their reputation; and by endeavouring to instil into people, where they cannot be heard, where they have no opportunity to contradict, and where witnesses cannot be examined either on one side or the other, an impression that they are guilty, without the form, without the essence of trial? If therefore there was such an advertisement as that published, that advertisement I hold to be a most wicked one. Prosecuting men that are thought to be guilty, is a fair and an honest action. In this case, what is the excuse here? That they cannot be prosecuted. Supposing the accident of the distance from that side of the water and other accidents should so far intervene as to prevent the possibility of trying those men, even if they had been guilty of murder, would it follow as a conclusion upon that, that they shall be libelled? and that it shall be in the power of any man alive to raise impressions behind their backs, by publishing in the newspaper imputations to their disadvantage, which they cannot contradict or refute? calumniating them, accusing them of murder? The time would undoubtedly come in which they would be to be tried for it, if guilty and to be tried for it under that sort of impression! I am amazed that any man of common sense could (even in his own case) imagine, that it would be tolerable doctrine in the ears of people that have lived for years in a civilized country, that that was the true way of prosecuting upon the subject of murder! He told you a story of Glenco, which, if I understand him right, went directly the reverse. They were to be tried. Unless he means to compare the authority of the Morning or London Evening Post to the councils of the whole nation! if he means to make that comparison (which he did not make, and which is too absurd for me to do for him ;) making that, a degree of idle analogy would seem to arise; but without that, absolutely none.

Now with respect to the rest, he has offered by evidence also to establish, that this must necessarily be a murder; and the fate of those people, it seems, is to be tried by the effect of that evidence! And what does that evidence amount to? Why, that the king's troops, under the command of general Gage, were in an hostile country; and that it was impossible for them to go upon any service (ordered by that general and conducted by his officers) without an attack: that the moment they went out of Boston alarm guns were discharged, in order to raise the power that possessed the country on

the other side upon them, and to make the attack upon them. And this is the medium by which it is to be proved, that the soldiers who were ordered by their commander to advance from their post at Boston into that country, were guilty of murder; because they were surrounded upon the 18th and 19th of April, in consequence of those alarm guns, with an armed force on the other side, in order to withstand and oppose their operations, they being at that time in an hostile country! Why, if I had meant, if I had thought it consistent with law or with reason, to enter into a discussion of that question with him, whether he is a tibeller | or not, for having charged them with murder by a printed paper, instead of charging them in a more direct way; if I had thought it necessary to establish the case against him in the strongest and most precise manner, it would have been by calling just such a witness as that, in order to prove that the troops were themselves attacked; and that, upon the moment of their going out of the place, they were surrounded with hostile attack. But necessity, it seems, necessity, according to the notion of law, is that which self defence prescribes, that a man must go to the wall who is attacked. He must fly first; and if he can escape by flight, then he shall not justify himself by turning and repelling the attack! What sort of understandings does he imagine the audience to be composed of, when he represents an expedition and attack of this sort in that manner? That the king's troops, when they heard the alarm guns and were attacked, were to fly, to get to the wall, and drop their arms! this is the notion of military disposition in an hostile country! and this is the law that the learned gentleman has learned from the State Trials, the source of his reading! and which he has set forth with a dexterity, and a species of understanding, and a sort of eloquence, which is peculiar to him. And I must say now, it is more than I ever beard before. If I had the honour of a conversation with him nine years ago, I had forgot it. I did not take notice of the conversation perhaps enough to retain it. I had still less an idea that his abilities were so conspicuous. But this species of eloquence I take to be peculiar to himself; as it could not have been delivered by a counsel; it would have been absolutely impossible by a counsel used to practice; it would have been impossible to a counsel, used to feel the weight of his arguments, used to feel the ridicule of applying such kind of arguments as these, and deterred by that means from doing it. No counsel would have thought himself warranted to do this. He would not have had conceit enough to think his own understanding so superior to all that heard him, as to suppose he could pass such a proposition upon his auditory, that the conduct of an army, in an hostile country, was to be like the case of a man indicted for murder to fly to the wall, for fear they should do some mischief! This is the sort of defence he has thought fit to make upon this subject;

and it gives me a ground for saying, that, if I was short in applying the charges of the infor. mation as I should have done, it is now completely applied.

All that part of the defence which went perfectly wide and foreign to all practical application to the case, I will now entirely drop. At the same time I cannot do it without making this observation; that, whatever be the degree of veracity claimed by and due to that gentleman, in the particular words that he thinks proper to impute to the various people whose words he has thought fit to quote; as far as my memory goes of the transactions which I do remember; as far as conjecture goes with regard to those I have not a perfect memory of; I believe, that this failing at least belongs to his representation of them: that taking, as he has done, particular passages, for the sake of remembering them to the disadvantage of the speaker, he has stripped them of their context. He has therefore made it impossible to recollect the whole, in order to see whether they would, or not, turn out such nonsense as he has imputed to those several speakers. It may be true, for aught I can tell; though if any body had asked me, whether I ever spoke upon that subject he mentions in the House of Commons, I should have said no, directly; for I believe I did not. I believe Mr. Oliver will not say, that he brought any such idle message as that to me. I should have treated it with ridicule. I have no objection to converse with Mr. Oliver upon any subject he thinks proper. He does me honour by it. But if he had brought me such a message from a person in Mr. Horne's situation, respecting my conduct in parliament, a little laughing at the message he must have excused. But he does not say he brought me such a message. I don't know that 1 bore any part in that de bate. But he says, be took down some words; and that I said, it was a Gothic custom. If I got up to make a speech upon a proposition of law of that magnitude and extent, of such a variety of reading that that proposition was open to, and contented myself with sitting down, and saying, it was a Gothic custom; I should not have had any pretensions to the ear of that House. If I made any discourse about it; which I suppose I did, as he says I did; I suppose it is as idle, as foolish a kind of speech as it is possible for any man to make. I should not wonder if I was refused all audience there in all times to come, provided my speeches were just those which I have had the ―(not misfortune, for I think it very natural) as I have heard to-day. Other people have shared exactly the same fate. Is it a fair thing, with respect to any judge, with respect to any court of justice? Is it a fair thing to state one fiftieth part of a cause depending before them with an observation which the other forty-nine parts would never have justified upon it? Is it the part of a good citizen, of a man that reverences the laws of his country, of a man that wishes any thing but anarchy to rise in a coun