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great humanity as a prisoner.” Now from this writing to be as charged by the information. account you see, that they had erected in effect One of them understood, or doubted, whetheir standards ; each bad their troops in battle ther (this was in the case, you see, of a array; they were ready to fight. Who (from printer, of a third person) whether actual proof this evidence) fired first, he cannot tell; that of a seditious intention (distinct from the inis, originally the first. He heard that the pro- ference from the act itself) was necessary to vincials charged; but whether the one or the be proved. The other thought that a seditious other fired first, he cannot tell; when the two intent was by law to be inferred from the sedibodies were in the field, each expecting the tious act; and they came in and proposed their other to attack. This is the account given by doubts. And I told them wbat I tell you (and the defendant's witness : that it was the king's what I believe never was doubted, and what troops, by order of the commander and the go was pot questioned upon that occasion, though I vernment, that were engaged in this fray, in desired they would move the court upon it, which those lives were lost! Then if there is if they had any doubt) that it is not necessary nothing particular, but it is a consequence of to prove an actual intent, which is the private the general dispute, of the cause of ihis most operation of a man's mind; but a jury were Jamentable and unhappy war, no good man to exercise their judgment from the nature of but must lament it, and wish them reclaimed. the act, as to the intent with which it is done.* If it is barely the consequence of that which As, if a man writes and publishes a seditious has led to further bostilities since, you will read libel, a libel that has a seditious tendency, that this paper, and judge for yourselves. You is a ground to a jury from whence to interwill judge whether it conveys a harmless, in- (when it is without any justification, without nocent proposition for the good and welfare of any excuse) -that is a groupd from whepee to this kingdom, the support of the legislative inter a seditious imtent. Just as if a man government, and the king's authority according murders another without any justification of to law; or whether it is not denying the go- that act, it is a sufficient ground for the jury to vernment and legislative authority of England, infer that he did it maliciously. That answer and justifying the Americans; averring that was given to the jury. they are totally innocent; that they only de Gentlemen, here I conclude every thing I sire not to be slaves; not disputing to be sub- shall trouble you with, by way of charge, bea jects, but they desire only not to be slaves ; and cause yon will exercise your judgment, as 1" that the use that is made of the king's troops have said before, upon the paper and the inforupon this occasion (for you will carry your mation, by reading them, which you may have mind back to the time when this paper was to carry out with you. But merely for the wrote) was to reduce them to slavery.' And if sake of the audience, as something bas been it was intended to convey that meaniog, there so much mentioned in the cause (for I don't can be little doubt whether that is an arraign- give you any reason for taking no notice of ment of the government and of the troops em any thing out of it) I think proper to state it ployed by them or not. But that is a matter in so particular a manner, that when you come for your judgment. You will judge of the to see it misrepresented, you may all of you meaning of it; you will judge of the subject remember what it is, and what it was, and to wbich it is applied, and connect them toge- upon what ground it passed; and that is, with ther; and if it is a criminal arraignment of regard to the Attorney General's Reply. You these troops, acting under the orders of the see, as the case is, it is entirely out of this officers employed by the government of this cause : for the defendant has called witnesses; country, to charge them with murdering in- and I thought it right tbat he should kpow it nocent subjects, because they would not be early, that he might not abstain from calling slaves, you will find your verdict one way: but witnesses to avoid the reply, and in that manner if you are of opinion that the contest is to re be surprised. Now I will tell you what I take duce innocent subjects to slavery, and that they to be the practice with regard to that matter. were all murdered (like the cases of undoubted The nature of a reply is the plaintiff's answer murders, of Glenco, and twenty other mas. to new matter advanced by the defendant. The sacres that might be named) why then you plaintiff knows bis own case; he knows his may form a different conclusion, wiih regard to own witnesses; be opens it ; he observes upon the meaning and application of this paper. his witnesses; and he draws such conclusions
Without giving you any reason, you will from them as he thinks proper, to persuade a easily guess why I pass over a great deal that jury to encrease the damages. The defendant, has been said, that ought not to have been it he only makes observations upon the same said: but there is one thing that is relative evidence, and only draws conclusions from the to the subject, and therefore it ought to be said : same evidence to the jury, to lessen the da. that was, a doubt (upon one of the former trials mages ; why there, there is nothing new, there upon the printers) tbat occurred to the jury, in is no new matter at all: and by the practice, wbieb they had a difference of opinion ; and they agreed to come in and leave it to my de * This seems to be somewhat inconsistent cision. I had told them (as I told you) that with what lord Mansfield laid down to be the one of the points to guide your verdict was, law when delivering the judgment of the Court whether you understood the meaning of the in Woodfall's Case.
for the expedition of business in civil causes, [The Jury withdrew about five o'clock, and and in prosecutions in the name of the king, returned into court abont half an hour after with common informers, the practice is, that six; and gave in their verdict, that the defenthey don't reply where that is the case. But, dapt was Guilty.] potwithstanding that, if the defendant was to start a point of law, the other must be beard. If he was to throw out to the jury, to catch FURTHER PROCEEDINGS ON THE TRIAL and to surprise them, allegations of fact which he called do witnesses to prove-you recollect
OF John HORNE, Esq. UPON AN how many millions of facts you bave bad urged INFORMATION FILED Ex OFFICIO to-day, for which no witnesses were called
BY HIS MAJESTY'S ATTORNEY GE(how many extrinsic to the cause)—there the
NERAL, counsel for the plaintiffmayset the jury right, and
FOR A Libel, IN lay them out of the cause, and shew that they Court KING's-BENCH, are absolutely irrelevant and immaterial. But,
WEDNESDAY THE 19TH AND MON, in solemo trials, io state prosecutions, where the Attorney General attends, I never knew it
THE 24TH OF NOVEMBER, denied but that he had a right to reply. I was 1777. [PUBLISHED BY
THE DE. many years solicitor-general: I was attorney
MR, GURNEY'S general : I have known it often, where nothing has been said for the defendant that they
SHORT-HAND Notes.] thought called for a reply. I never knew it
Wednesday, November 19, 1777. denied to the attorney general, where he insisted upon being heard in reply: and I be
The Attorney General moved for judgment lieve the present Attorney General has replied against Mr. Horne. several times. This is so much the law of the
Lord Mansfield. Is the defendant bere ! land, that (if my memory does not fail me) in the most solemn cases (and as I speak from
Mr. Daniel, the defendant's attorney, anmemory only, if there should be any slip in it, swered, that be was. I hope I shall be excused) and, to the best of The Information was read by order of the my memory in the trial of my lord Byron (if Court. any gentleman can correct me, I shall be very glad to be corrected—I dare say there are some Mr. Horne. My lords, with great submission here that were of counsel in that cause) in the and respect to your lordships, and iu full confitrial of lord Byron,t who called no witnesses, dence and security of protection by the laws of no evidence, the Attorney General replied. my country, I presume to offer to your lordThe House of Commons, as the public prose ships tbat I am not, upon this information, a cator for the nation, insist upon it as an abso- proper object for the judgment of this court. lute right, that they are to reply. It is a great And, my lords, I cannot mention what I have while ago; but, if my memory does not fail 10 say in arrest of the judgment wbich Mr. At. me, I think I replied for the House of Com torney-General has prayed against me, without mons upon the trial of lord Lovat,f though first acknowledging the obligations which I be called no evidence. I speak from memory, have, and the thanks which I owe, to my proit is many years back; and therefore if I am secutor, and to my judge: for, my lords, it is mistaken, I do it with that reserve and qualifi. to them, and to the arguments wbich they used cation to be set right.--- This bas nothing at all in order to obtain a verdict from the jury, it is to to do with the cause ; but it at least explains, them that I am indebted for that argument to those who want to understand it, the light which must prevent the judgment. At the in which I see that matter, and the ground same time, my lords, it is but justice in me to upon which I determined it.
declare, that whatever ill-founded doubts might,
at the beginning of the trial, have barboured in * So in Dr. Hensey's Case; although the my mind concerning any personal enmity, prisoner bad given no evidence at all, yet Yorke hostility, or prejudice towards me, before the solicitor general, on the part of the crown, was close of the trial they were all entirely effaced: heard in reply to the matters which had been for enmity, my lords, is not a supine and carealleged in defence of the prisoner. See vol. less, but an active and curious principle, i9, p. 1342.
prompting men to neglect nothing which may So in lord Wintoun's case; though the pri iend to produce the desired mischief. And soner called no witnesses, the managers for the your lordships, I am persuaded, will see reason Commons replied. See vol. 15, pp. 864, et to believe with me, that, so far from any unseg.
common diligence having been used against + See the report of it in this Collection, me, neither my prosecutor, por my judge, por vol. 19, p. 1178; by which it appears that lord my jury bad ever so much as once cast an eye Byron called no witnesses por evidence, but over the information brought agaiost me; for moreover that the Attorney General did not your lordships will instantly perceive, by look, reply.
ing at the record, that I am not therein charged See it in this Collection, vol. 18, p. 530. with any crime.
My lords, when first I saw the charge in mation wants those necessary averments, which the information, I thought of it the same whicb cannot by any means be intended. For your I now offer to your lordships; and therefore, lordships will find, by looking at the record, fearing nothiog but the inattention of the jury, that in each of the various counts which this in the greater part of my defence consisted of mo. formation contains, it is simply averred, that I tives pressed upon the jury for their attention : did write and print and publish, and cause and and when I hoped I had secured that point (the procure to be written and printed and published, only favour, as I then declared to them, which to the tenor and effect following. I had to request) 1 then proceeded to shew that Your lordships will therefore be pleased to there was not any crime in that which was al. examine the record; and I have not the Jeged against me; keeping my eyes always smallest doubt that your lordships will do me fixed apon that with which alone I had to do, that justice which my jury, through want of namely, the charge in the information ; and I attention, did not. desired the jury to take the information out of court with them.
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 bappened 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 Jords, 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, iny lord, and those persons denominated king's troops, it is said, that nothing is to be assumed but were employed by bis majesty and by the go- wbat appears upon the record; and that the invernment for the purpose of quelling that in- formation wants some averments. I was very surrection or rebellion; that in this their em attentive to collect, if I possibly could, what ployment and service an engagement ensued species of averment it was that the information between the said rebels or insurgents and the was supposed to wait. But I missed it, if it said king's troops so employed; that in this has been stated on the part of the defendant. engagement certain of the said insurgents or What kind of averment joserted in this infor. rebels were slain by the said king's troops; and mation would have supplied it, and have made that my advertisement and the charge of mur it a perfect description of the crime ? I shall der, said to be contained in it, related to the said take up the information itself to shew, in the insurgents or rebels so slain by the said king's course of the argument, that there is enough troops so employed.
stated in it to make the crime. The informaAnd, my lords, the judge did very fairly, and tion does not end, as is supposed on the part of very plainly and precisely, and in express words the defendant, merely in these words,--that he shew to the jury, that on these circumstances bad “written and published, and caused and did depend the whole criminality of the charge procured to be written and published, accordagainst me.
ing to the tepor and effect following.” The inNow, my lords, though the jury did, through formation states expressly that he had—“ writ. want of attention, forget in consider that ten and published a certain false, wicked, malithese circumstances were neither proved nor cious, scandalous, and seditious libel of and charged; your lordsbips, 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 Jordships, 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 do 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 oc and seditious libel of and concerning the king's currences there can any one be imagined in goverument and the employment of his troops. which it would not be criminal to say that the 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)— ihe tenor and effect following, delivered in writif therefore any one possible occurrence can ing to be printed and published concerning the be imagined (and I suppose there are a great | king's government and concerning the employ. mány, the judge who tried me helped me to ment of his troops, were, in themselves, so manisome, above twenty)--if any one can be ima. festly innocent, that it was necessary for a court gined, in which it would not be criminal to say of justice, upon this record, to say that, notthat the king's troops have committed murder, withstanding the jury has found a libel pubthen your lordships cannot, upon this informa- lished according to the tenor and effect followson, proceed to judgment; because the infor- ing, yet there is, in truth, no libel.
her own nexpected that he would have gone
Your lordships will observe what it is that whicb were necessary to the information. be had said concerning the king's government, | And, my lords, it was not out of any satirical and concerning the employment of his troops ; | inclination that I imputed the omission of those that “ our beloved American fellow-subjects, avernents to carelessness; I had other reafaithful to the character of Englisbmen, pre
For, indeed, I know very well (and ferring death to slavery, were, for that reason upon reflection I dare say your lordships will only, inbumanly murdered by the king's troops, know very well) why those averments were at or near Lexington and Concord in the pro omitted. My lords, the truth is, that Mr. Atxince of Massachuset's-Bay, in New England, torney-General found bimself between Scylla on the 19th of last April.” This therefore is and Charybdis. If he inserted these averments, what he has said concerning the government he split on one side, on the proof. My lords, and concerning the employment of the troops ; tbe advantages are very numerous and great that they were to commit murder upon the which I should have derived from those averking's subjects, only because they were, some ments. The information would have been dething better than innocent, -meritorious, in stroyed, for want of proving what was averred ; being faithful to the character of Englishmen, therefore he did not chuse to aver them. By and in preferring death to slavery. If it be the nature of bis answer to me, I am persuaded possible to state that these words (uttered and he was aware of it: and, from certain intelliapplied 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 the drawing up of the information against me. country, and the employment of the troops) are It was proposed to alter the information ; but innocent words, then the argument miglit have having obtained verdicts upon the other infortaken some foundation. But to say that there mations, it was, upon consultation, agreed by is any want of averment in this--till I hear the learned gentlemen, the king's counsel, that what averment could have made this charge the information against me should be literally more plain, more distinct, as a charge of murder the same. I know it from certain information, upon the king's subjects, against the employ- which I obtaived without the least treachery in ment of the troops, agaiost a national exertion my informants; for the gentlemen who caused of public force; it cannot, in my mind, by me to know it, had not, in what they said, the words be made more strict aud plain than it least notion that they were telling me any thing. Dow stands upon the record.
My lords, before I beard Mr. Attorney-GeThe effect of these words I industriously neral's answer, I was a little apprehensive that avoid to speak of now : the degree of favour I might meet with some difficulties. I was that belongs to them will be the subject of far sure ) ran no bazard 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 tbis ; whe- perhaps be puzzled in the application of it, by ther the libel, as stated in the record, does or cases of law, or by precedents that I had never does not contain sufficient matter of slander. before heard of. Now, my lords, though Mr. REPLY.
Attorney General has not favoured me with
any, and though I cannot myself give you an Mr. Horne. I should be very happy, my adjudged case; yet your lordships will forgive lords, at all times to pay to Mr. Attorney-Ge me, unused to these matters, if I read to you neral all those compliments which are person. the opinion of a learved judge in a matter ally and officially due to him ; and I would ra exactly similar to this. It is in the case of lord ther have risqned the chance of exposing my Russell. The opinion I mean is that of Sir self, than not pay to him the compliment of a Robert Atkins. " His words are remarkably reply; if indeed I could bave found in bis an- fortunate for me; and it being that kind of law swer any thing to which even the appearance obvious to persons who pretend to understand of a reply could be given. However, I will do no more than wbat common sepse will direct for bim what I can.
mind then to, I did happen to have read ihat book Mr. Attorney-General has said, that he could leng ago. I beg leave to read some little of it, not discover from any thing which I had ada because it literally applies. He takes police of vanced, what omitted averments were sug- that part of the indictment where it is averred gested by me to be necessary to the informa- against lord Russell, that he was at a consultion. My lords, though Mr. Attorney-General tation for the purpose of seizing the king's may have missed them, your lordships, I am guards. He says, "guards' (there is ro dif. sure, did hear me very plainly and distinctly : ference between guards and troops-except and though I did not formally say, such and indeed that troops is a much wider word than such averments are necessary to the informa- guards. Troops! we say a troop of strolling tion ; yet when I told your lordships, that in players.] the reply of the Attorney-General, and in the " The guards—What guards? What, or address of the judge to the jury, I then heard, whom does the law understand or allow to be for the first time, that ibere was a rebellion in the king's guards, for the preservation of bis Massachuset's-Bay, and that certain persons person? Whom shall the court that tried this were employed to quell that rebellion; your noble lord, whom shall the judges of the law lordships, I am sure, and the whole court very that were then present, and upon their oaths, well understood that those were the avermenis whom shall they judge or legally understand
by these guards? They never read of them in , for it may be of and concerning good, as well all their law-books. There is not any statute as bad. "The word concerning' means, looke law that makes the least mention of any ing at together; and that is the only, and the guards. The law of England takes no notice single meaning of the word • concesaing.' of any such guards; and therefore the judict Now, my lords, if. Mr. Attorney General ment is uncertain and void.” He says, “the should succeed in this his prayer, he will be a love of his subjects is, next under God, the best very fortunate, though not a very reasonable, guard of kings." He says, “ The very gentleman. judges that tried this noble lord were the king's My lords, a proof of all those matters which guards, and the kingdom's guards, and this should have been averred (which I am foanded lord Russell's guard against all erroneous and in saying by the opinion of the judge, who imperfect indictments from all false evidence pressed them upon the jury as motives for their and proof” -(What immediately follows does verdict, and which I firmly believe he would hol, indeed, apply in my case) —" from all not have done, if he had not believed that they strains of wit and oratory"-(there has been were contained in the information) a proof, my none here, my lords)—“ misapplied and abused lords, of all those circumstances was supplied by counsel. It had been fit for the court that for the Attorney General by the judge on the tried this noble lord on this indictment, to bave trial; for he produced no evidence of them satisfied themselves from the king's coupsel, himself: and be will be very fortunate, indeed, what was meant by these guards. But admit ibe if he can now prevail upon the Court to supply seizing and destroying of those who are now likewise the deficiencies in the information. called the king's life-guard, had been the guard Lord Mansfield. Whatever the degree of intended within this overt fuit,” 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 avermeuts wbich Mr. "Attorney-General en bas a legal advavtage 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, thai de facto the king It is most certain, that at the trial the informahad chosen a certain number otten to attend tion was considered to be words spoke of and opoo and guard his person, and set forth where concerning the king's government and bis em. they did attend, as ai Whitehall, or the Meuse, ployment of bis troops; that is, the employor the Saroy, &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 ; ļhat by this setting forthi, the Gould. The Attorney General rose jo 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 js meant, makes the indictment very insuffi- what the subject-natter was to which the libel
My lords, Mr. Attorney-General (1 related-if it was the employment of the troops beg the courl's pardon, I shall take up very little under praper authority that came within the of their time) the Attorney General says, he ex. charge in ite information.-Had it been a lawpected I should have said ibat 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 bot. perhaps have said so, if libel had been such a Though the saying so might have been a libel iechoical term that I could have knows 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 guot 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 ine 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 charg. General would not have had quite so much ed; but whether technically charged or not, I difficulty to make this information good: but do not know; and therefore as to this point, not being a technical term, it makes those other without prejudice we will take some time to averments the more necessary.
consider of it; to see whether precedents can Mr. Attorney General has then tried to help be found which require this tecbaical scruputhe deficiency of the averments in the information by, of and concerning—of and concern * In maintenance of this argument, Mr. ing his majesty's government and the employ- Horne publisbed his · Letter to Mr. Dunning ment of his troops."-] believe there is no on the English particle,' (as to which, see Boscrime comprebended in of and concerning ;'well's Life of Dr. Johnson, vol. 3, p. 378, 8vo
edition) the contents of which he afterwards * See vol. 9. p. 730.
incorporated into cbapters 6, 7, and 8, of the + Qu. by Thicknesse to lord Orwell, “Επεα πτερόεντα. VOL. XX,