great humanity as a prisoner." Now from this account you see, that they had erected in effect their standards; each had their troops in battle array; they were ready to fight. Who (from this evidence) fired first, he cannot tell; that is, originally the first. He heard that the provincials charged; but whether the one or the other fired first, he cannot tell; when the two bodies were in the field, each expecting the other to attack. This is the account given by the defendant's witness: that it was the king's troops, by order of the commander and the government, that were engaged in this fray, in which those lives were lost! Then if there is nothing particular, but it is a consequence of the general dispute, of the cause of this most lamentable and unhappy war, no good man but must lament it, and wish them reclaimed. If it is barely the consequence of that which has led to further hostilities since, you will read this paper, and judge for yourselves. You will judge whether it conveys a harmless, innocent proposition for the good and welfare of this kingdom, the support of the legislative government, and the king's authority according to law; or whether it is not denying the government and legislative authority of England, and justifying the Americans; averring that they are totally innocent; that they only desire not to be slaves; not disputing to be subjects, but they desire only not to be slaves; and that the use that is made of the king's troops upon this occasion (for you will carry your mind back to the time when this paper was wrote) was to reduce them to slavery. And if it was intended to convey that meaning, there can be little doubt whether that is an arraignment of the government and of the troops employed by them or not. But that is a matter for your judgment. You will judge of the meaning of it; you will judge of the subject to which it is applied, and connect them together; and if it is a criminal arraignment of these troops, acting under the orders of the officers employed by the government of this country, to charge them with murdering innocent subjects, because they would not be slaves, you will find your verdict one way: but if you are of opinion that the contest is to reduce innocent subjects to slavery, and that they were all murdered (like the cases of undoubted murders, of Glenco, and twenty other massacres that might be named) why then you may form a different conclusion, with regard to the meaning and application of this paper. Without giving you any reason, you will easily guess why I pass over a great deal that has been said, that ought not to have been said: but there is one thing that is relative to the subject, and therefore it ought to be said: that was, a doubt (upon one of the former trials upon the printers) that occurred to the jury, in which they had a difference of opinion; and they agreed to come in and leave it to my decision. I had told them (as I told you) that one of the points to guide your verdict was, whether you understood the meaning of the writing to be as charged by the information. One of them understood, or doubted, whe ther (this was in the case, you see, of a printer, of a third person) whether actual proof of a seditious intention (distinct from the inference from the act itself) was necessary to be proved. The other thought that a seditious intent was by law to be inferred from the seditious act; and they came in and proposed their doubts. And I told them what I tell you (and what I believe never was doubted, and what was not questioned upon that occasion, though I desired they would move the court upon it, if they had any doubt) that it is not necessary to prove an actual intent, which is the private operation of a man's mind; but a jury were to exercise their judgment from the nature of the act, as to the intent with which it is done.* As, if a man writes and publishes a seditious libel, a libel that has a seditious tendency, that is a ground to a jury from whence to inter(when it is without any justification, without any excuse)-that is a ground from whence to infer a seditious intent. Just as if a man murders another without any justification of that act, it is a sufficient ground for the jury to infer that he did it maliciously. That answer was given to the jury. Gentlemen, here I conclude every thing I shall trouble you with, by way of charge, be cause you will exercise your judgment, as t have said before, upon the paper and the information, by reading them, which you may have to carry out with you. But merely for the sake of the audience, as something has been so much mentioned in the cause (for I don't give you any reason for taking no notice of any thing out of it) I think proper to state it in so particular a manner, that when you come to see it misrepresented, you may all of you remember what it is, and what it was, and upon what ground it passed; and that is, with regard to the Attorney General's Reply. You see, as the case is, it is entirely out of this cause: for the defendant has called witnesses; and I thought it right that he should know it early, that he might not abstain from calling witnesses to avoid the reply, and in that manner be surprised. Now I will tell you what I take to be the practice with regard to that matter. The nature of a reply is the plaintiff's answer to new matter advanced by the defendant. The plaintiff knows his own case; he knows his own witnesses; he opens it; he observes upon his witnesses; and he draws such conclusions from them as he thinks proper, to persuade a jury to encrease the damages. The defendant, if he only makes observations upon the same evidence, and only draws conclusions from the same evidence to the jury, to lessen the damages; why there, there is nothing new, there is no new matter at all: and by the practice, *This seems to be somewhat inconsistent with what lord Mansfield laid down to be the law when delivering the judgment of the Court in Woodfall's Case. for the expedition of business in civil causes, and in prosecutions in the name of the king, with common informers, the practice is, that they don't reply where that is the case. But, potwithstanding that, if the defendant was to start a point of law, the other must be heard. If he was to throw out to the jury, to catch and to surprise them, allegations of fact which he called no witnesses to prove-you recollect how many millions of facts you bave had urged to-day, for which no witnesses were called(how many extrinsic to the cause)—there the counsel for the plaintiff mayset the jury right, and lay them out of the cause, and shew that they are absolutely irrelevant and immaterial. But, in solemn trials, in state prosecutions, where the Attorney General attends, I never knew it denied but that he had a right to reply.* I was many years solicitor-general: I was attorney general: I have known it often, where nothing has been said for the defendant that they thought called for a reply. I never knew it denied to the attorney general, where he insisted upon being heard in reply: and I believe the present Attorney General has replied several times. This is so much the law of the land, that (if my memory does not fail me) in the most solemn cases (and as I speak from memory only, if there should be any slip in it, I hope I shall be excused) and, to the best of my memory in the trial of my lord Byron (if any gentleman can correct me, I shall be very glad to be corrected—I dare say there are some here that were of counsel in that cause) in the trial of lord Byron,† who called no witnesses, no evidence, the Attorney General replied. The House of Commons, as the public prosecutor for the nation, insist upon it as an absolute right, that they are to reply. It is a great while ago; but, if my memory does not fail me, I think I replied for the House of Commons upon the trial of lord Lovat, though be called no evidence. I speak from memory, it is many years back; and therefore if I am mistaken, I do it with that reserve and qualification to be set right.---This has nothing at all to do with the cause; but it at least explains, to those who want to understand it, the light in which I see that matter, and the ground upon which I determined it. [The Jury withdrew about five o'clock, and returned into court about half an hour after six; and gave in their verdict, that the defendant was Guilty.] FURTHER PROCEEDINGS ON THE TRIAL Wednesday, November 19, 1777. The Attorney General moved for judgment against Mr. Horne. Lord Mansfield. Is the defendant here? Mr. Daniel, the defendant's attorney, answered, that he was. The Information was read by order of the Court. and respect to your lordships, and iu full confiMr. Horne. My lords, with great submission dence and security of protection by the laws of my country, I presume to offer to your lordships that I am not, upon this information, a proper object for the judgment of this court. And, my lords, I cannot mention what I have to say in arrest of the judgment which Mr. Attorney-General has prayed against me, without first acknowledging the obligations which I have, and the thanks which I owe, to my prosecutor, and to my judge: for, my lords, it is to them, and to the arguments which they used in order to obtain a verdict from the jury, it is to them that I am indebted for that argument which must prevent the judgment. At the same time, my lords, it is but justice in me to declare, that whatever ill-founded doubts might, my mind concerning any personal enmity, at the beginning of the trial, have barboured in hostility, or prejudice towards me, before the close of the trial they were all entirely effaced: for enmity, my lords, is not a supine and careless, but an active and curious principle, prompting men to neglect nothing which may tend to produce the desired mischief. And your lordships, I am persuaded, will see reason to believe with me, that, so far from any unme, neither my prosecutor, nor my judge, nor common diligence having been used against my jury had ever so much as once cast an eye over the information brought against me; for your lordships will instantly perceive, by looking at the record, that I am not therein charged with any crime. My lords, when first I saw the charge in the information, I thought of it the same which I now offer to your lordships; and therefore, fearing nothing but the inattention of the jury, the greater part of my defence consisted of mo. tives pressed upon the jury for their attention : and when I hoped I had secured that point (the only favour, as I then declared to them, which I had to request) I then proceeded to shew that there was not any crime in that which was alleged against me; keeping my eyes always fixed upon that with which alone I had to do, namely, the charge in the information; and I desired the jury to take the information out of court with them. mation wants those necessary averments, which cannot by any means be intended. For your lordships will find, by looking at the record, that in each of the various counts which this information contains, it is simply averred, that I did write and print and publish, and cause and procure to be written and printed and published, to the tenor and effect following. Your lordships will therefore be pleased to examine the record; and I have not the smallest doubt that your lordships will do me that justice which my jury, through want of attention, did not. Attorney General. My lord, if I underBut, my lords, when I heard the reply of Mr. stand the effect of this motion, it is, that the Attorney-General, and the address of the judge matter of the information, as charged, does not to the jury, I was no longer at a loss to under- state a crime. That indeed is the necessary stand how it happened that I could not see in form of the objection to be made in this stage of the charge against me that criminal matter the business; for, in this stage of the business, which they imagined it to contain: for, my every thing is to be taken to be solemnly true lords, I then heard, for the first time, that there which that information has stated as essential was an insurrection or rebellion in the colony to the constitution of the crime, and which the of Massachuset's-Bay; that certain persons-jury consequently have found. Now, my lord, and those persons denominated king's troops- it is said, that nothing is to be assumed but were employed by his majesty and by the go- what appears upon the record; and that the invernment for the purpose of quelling that information wants some averments. I was very surrection or rebellion; that in this their employment and service an engagement ensued between the said rebels or insurgents and the said king's troops so employed; that in this engagement certain of the said insurgents or rebels were slain by the said king's troops; and that my advertisement and the charge of murder, said to be contained in it, related to the said insurgents or rebels so slain by the said king's troops so employed. And, my lords, the judge did very fairly, and very plainly and precisely, and in express words shew to the jury, that on these circumstances did depend the whole criminality of the charge against me. attentive to collect, if I possibly could, what species of averment it was that the information was supposed to want. But I missed it, if it has been stated on the part of the defendant. What kind of averment inserted in this information would have supplied it, and have made it a perfect description of the crime? I shall take up the information itself to shew, in the course of the argument, that there is enough stated in it to make the crime. The information does not end, as is supposed on the part of the defendant, merely in these words,-that he had written and published, and caused and procured to be written and published, according to the tenor and effect following." The inNow, my lords, though the jury did, through formation states expressly that he had-" writwant of attention, forget to consider that ten and published a certain false, wicked, malithese circumstances were neither proved nor cious, scandalous, and seditious libel of and charged; your lordships, I am sure, who are concerning his majesty's government and the to look to nothing but to the record itself; your employment of his troops, according to the lordships, I am sure, will not fail to consider, tenor and effect following." So that the matthat no indictment or information can be cured ter found by the jury, and upon which your or made good by any implication, argument, lordship is either to pronounce judgment, or to supposed notoriety, or intendment whatever say that, stated so upon the record, it amounts Nothing can be assumed or intended against to no crime in estimation of law, is, that he did me, but what is expressed in the record itself. write that false, wicked, malicious, scandalous, If therefore in the whole range of possible ocand seditious libel of and concerning the king's currences there can any one be imagined in government and the employment of his troops. which it would not be criminal to say that the I own I expected that he would have gone king's troops (no technical term, my lords, farther, and that he would have endeavoured to troupeaux,-flocks-companies-even deser- prove that such words as are included under ters may be comprehended under that term)—the tenor and effect following, delivered in writif therefore any one possible occurrence can be imagined (and I suppose there are a great mány, the judge who tried me helped me to some, above twenty)-if any one can be imagined, in which it would not be criminal to say that the king's troops have committed murder, then your lordships cannot, upon this information, proceed to judgment; because the infor ing to be printed and published concerning the king's government and concerning the employment of his troops, were, in themselves, so manifestly innocent, that it was necessary for a court of justice, upon this record, to say that, notwithstanding the jury has found a libel published according to the tenor and effect following, yet there is, in truth, no libel. sons. which were necessary to the information. And, my lords, it was not out of any satirical inclination that I imputed the omission of those averments to carelessness; I had other reaFor, indeed, I know very well (and upon reflection I dare say your lordships will know very well) why those averments were omitted. My lords, the truth is, that Mr. Attorney-General found himself between Scylla and Charybdis. If he inserted these averments, he split on one side, on the proof. My lords, the advantages are very numerous and great which I should have derived from those averments. The information would have been destroyed, for want of proving what was averred; therefore he did not chuse to aver them. By the nature of bis answer to me, I am persuaded he was aware of it: and, from certain intelli Your lordships will observe what it is that be had said concerning the king's government, and concerning the employment of his troops; that" our beloved American fellow-subjects, faithful to the character of Englishmen, preferring death to slavery, were, for that reason only, inhumanly murdered by the king's troops, at or near Lexington and Concord in the province of Massachuset's-Bay, in New England, on the 19th of last April." This therefore is what he has said concerning the government and concerning the employment of the troops; that they were to commit murder upon the king's subjects, only because they were, something better than innocent,-meritorious, in being faithful to the character of Englishmen, and in preferring death to slavery. If it be possible to state that these words (uttered and applied in the manner in which this record ap-gence, I know that there was a consultation on plies them, to the public government of the country, and the employment of the troops) are innocent words, then the argument might have taken some foundation. But to say that there is any want of averment in this-till I hear what averment could have made this charge more plain, more distinct, as a charge of murder upon the king's subjects, against the employment of the troops, against a national exertion of public force; it cannot, in my mind, by words be made more strict and plain than it now stands upon the record. the drawing up of the information against me. It was proposed to alter the information; but having obtained verdicts upon the other informations, it was, upon consultation, agreed by the learned gentlemen, the king's counsel, that the information against me should be literally the same. I know it from certain information, which I obtained without the least treachery in my informants; for the gentlemen who caused me to know it, had not, in what they said, the least notion that they were telling me any thing. My lords, before I beard Mr. Attorney-General's answer, I was a little apprehensive that The effect of these words I industriously avoid to speak of now the degree of favour might meet with some difficulties. I was that belongs to them will be the subject of far- sure I ran no hazard in the principle of my ther discussion: the only question that is at objection. I thought, indeed, that I might present before the court, is simply this; whe-perhaps be puzzled in the application of it, by ther the libel, as stated in the record, does or does not contain sufficient matter of slander. REPLY. Mr. Horne. I should be very happy, my lords, at all times to pay to Mr. Attorney-General all those compliments which are personally and officially due to him; and I would rather have risqued the chance of exposing myself, than not pay to him the compliment of a reply; if indeed I could have found in his answer any thing to which even the appearance of a reply could be given. However, I will do for him what I can. Mr. Attorney-General has said, that he could not discover from any thing which I had ad, vanced, what omitted averments were sug gested by me to be necessary to the information. My lords, though Mr. Attorney-General may have missed them, your lordships, I am sure, did hear me very plainly and distinctly: and though I did not formally say, such and such averments are necessary to the information; yet when I told your lordships, that in the reply of the Attorney-General, and in the address of the judge to the jury, I then heard, for the first time, that there was a rebellion in Massachuset's-Bay, and that certain persons were employed to quell that rebellion; your lordships, I am sure, and the whole court very well understood that those were the averments cases of law, or by precedents that I had never before heard of. Now, my lords, though Mr. Attorney General has not favoured me with any, and though I cannot myself give you an adjudged case; yet your lordships will forgive me, unused to these matters, if I read to you the opinion of a learned judge in a matter exactly similar to this. It is in the case of lord Russell. The opinion I mean is that of Sir Robert Atkins. His words are remarkably fortunate for me; and it being that kind of law obvious to persons who pretend to understand no more than what common sense will direct them to, I did happen to have read that book long ago. I beg leave to read some little of it, because it literally applies. He takes notice of that part of the indictment where it is averred against lord Russell, that he was at a consultation for the purpose of seizing the king's guards. He says, 'guards' [there is no difference between guards and troops,-except indeed that troops is a much wider word than guards. Troops! we say a troop of strolling players.] "The guards-What guards? What, or whom does the law understand or allow to be the king's guards, for the preservation of his person? Whom shall the court that tried this noble lord, whom shall the judges of the law that were then present, and upon their oaths, whom shall they judge or legally understand for it may be of and concerning good, as well as bad. The word concerning' means, looking at together; and that is the only, and the single meaning of the word concerning.'* Now, my lords, if Mr. Attorney General should succeed in this his prayer, he will be a very fortunate, though not a very reasonable gentleman. My lords, a proof of all those matters which should have been averred (which I am founded in saying by the opinion of the judge, who pressed them upon the jury as motives for their verdict, and which I firmly believe he would not have done, if he had not believed that they were contained in the information) a proof, my lords, of all those circumstances was supplied for the Attorney General by the judge on the trial; for he produced no evidence of them himself: and he will be very fortunate, indeed, if he can now prevail upon the Court to supply likewise the deficiencies in the information. by these guards? They never read of them in all their law-books. There is not any statute law that makes the least mention of any guards. The law of England takes no notice of any such guards; and therefore the indictment is uncertain and void." He says, "the love of his subjects is, next under God, the best guard of kings." He says, "The very judges that tried this noble lord were the king's guards, and the kingdom's guards, and this lord Russell's guard against all erroneous and imperfect indictments from all false evidence and proof" (What immediately follows does HOL, indeed, apply in my case)" from all strains of wit and oratory"-(there has been none here, my lords)—“ misapplied and abused | by counsel. It had been fit for the court that tried this noble lord on this indictment, to bave satisfied themselves from the king's counsel, what was meant by these guards. But admit the seizing and destroying of those who are now called the king's life-guard, had been the guard Lord Mansfield. Whatever the degree of intended within this overt fait," or open deed, guilt may be, how strongly soever it may have (these, my lords, are the averments which are been proved, or whatever observations may similar to those that I propose-these are the have arisen in this case; yet if the defendant averments which Mr. Attorney-General en- has a legal advantage from a literal flaw, God quired after) "yet (he says) the indictment forbid that he should not have the benefit of it. should have set forth, that de facto the king It is most certain, that at the trial the informahad chosen a certain number of men to attend tion was considered to be words spoke of and upon and guard his person, and set forth where concerning the king's government and his emthey did attend, as at Whitehall, or the Meuse, ployment of his troops; that is, the employor the Savoy, &c. and that these were the ment of the troops by government. Upon that guards intended by the indictment to be seized ground the defendant called a witness, Mr. and destroyed; that by this setting forth, the Gould. The Attorney General rose to object court might have taken notice judicially, what to him; but it was very clear that he was a and who were meant but to seize and destroy proper witness; and he acquiesced immediatethe king's guards, and not shew who and what ly, because it was extremely material to shew is meant, makes the indictment very insuffi- what the subject-matter was to which the libel cient." My lords, Mr. Attorney-General (I related-if it was the employment of the troops beg the court's pardon, I shall take up very little under proper authority that came within the of their time) the Attorney General says, he ex- charge in the information.-Had it been a lawpected I should have said that the matter con- less fray (which I believe I said at the trial,) tained in the information is no libel. I should had it been a lawless fray it would not. perhaps have said so, if libel had been such a Though the saying so might have been a libel technical term that I could have known what of the individual's, yet it would not have been it meant and if it was such a definite and this libel: it would not have been this libel of technical term, then perhaps my objection the king's troops employed by him. Now at would not have all that weight with you which first, and at present, it seems to me, that "of I now believe it will. The sending of a wooden and concerning the king's government and the gunt was adjudged by this court to be a libel. employment of his troops," pins it down. But There are many other things that might be I doubt a little upon it. There is some weight adjudged libels. It is impossible for me to in the objection, whether in the form of drawsay what libel means. It is not a technical ing there should not have been innuendoes. In term; and perhaps if it had been, the Attorney-common reason and understanding, it is chargGeneral would not have had quite so much difficulty to make this information good: but not being a technical term, it makes those other averments the more necessary. Mr. Attorney General has then tried to help the deficiency of the averments in the information by, of and concerning-" of and concerning his majesty's government and the employment of his troops."-I believe there is no crime comprehended in of and concerning;' * See vol. 9. p. 730. † Qu. by Thicknesse to lord Orwell, VOL. XX. ed; but whether technically charged or not, I do not know; and therefore as to this point, without prejudice we will take some time to consider of it; to see whether precedents can be found which require this technical scrupu * In maintenance of this argument, Mr. Horne published his Letter to Mr. Dunning on the English particle,' (as to which, see Boswell's Life of Dr. Johnson, vol. 3, p. 378, 8vo edition) the contents of which he afterwards incorporated into chapters 6, 7, and 8, of the Έπεα πτερόεντα. ; D |