reach of accommodation which those occasions | right upon great, trying, and important occa rendered necessary to him. In this respect, sions. He obtained popularity, because be therefore, imprisonment is not only as with re- despised all other means of aiming at it, but spect to the person not an adequate punishment that of doing right upon all occasions. From to the offence, but the public are told, and told the temper of those times, from the vehemence by a pamphlet which bears the reverend gentle- and designs of that faction that opposed him, man's name (may be his name may have been sir John Holt would have been reviled; if the forged to it; but by a pamphlet that bears that revilers of that day had not observed in the name) that it will be no punishment. And greatness of his spirit and character, that it your lordships (according to the usual style was impossible to reach him: and he has prewith which he has affected to treat justice, served a name which was highly honoured from the beginning to the end) are told that during his life, and which will live as long as you cannot punish him in that way and the English constitution lives. Citing him, therefore, if that is a species of punishment therefore, in support of this as a proper punishwhich cannot affect him, as your lordship has ment to be inflicted upon this sort of offence, is been before told in a manner to be relied upon, giving, in my apprehension, the greatest auhe has made it manifest that your lordships thority for it.* judgment in that part of the punishment, operates nothing with respect to him personally; and consequently that it will lose its whole force and efficacy as with respect to that example which the public justice ought to hold aut to the world. My lord, in pronouncing an opinion upon the objections started by the defendant, I would desire no better, no more pointed, nor any more applicable argument than what that great chief justice used, when it was contended before him that an abuse upon government, upon the administration of several parts of government, amounted to nothing, because there was no abuse upon any particular man. That great more: they are an abuse upon all men, Government cannot exist, if the law cannot restrain that sort of abuse. Government cannot exist, unless when offences of this magnitude, and of this complexion, are presented to a court of justice, the full punishment is inflicted which the most approved times have given to offences of much less denomination than these, of much less, I am sure it cannot be shewn, that in any one of the cases that were punished in that manner, the aggravation of any one of those offences were any degree adequate to those which are presented to your lordship now. If offences were so punished then, which are not so punished now, they lose that explanation which the wisdom of those ages thought proper to hold out to the public, as a restraint from such offences being committed again. It was my duty also to consider this as with view to the public conviction. I stated in the third place to your lordships, the pillory to have been the usual punishment for this species of offence. I apprehend it to have been so in this case for above two hun-chief justice said, they amounted to much dred years before the time when prosecutions grew rank in the Star-chamber, and to those degrees which made that court properly to be abolished. The punishment of the pillory was inflicted, not only during the time that such prosecutions were rank in the Star-chamber, but it also continued to be inflicted upon this sort of crime, and that by the best authority, after the time of the abolishing the Star-chamber, after the time of the Revolution, and while my lord chief justice Holt sat in this court. In Jocking over precedents for the sake of the other question, I observed that Mr. Tutchin (an author of some eminence in his day) was angry with Holt, the lord chief justice, for transferring, as he called it, the punishment of bakers to authors. That was upon a personal conceit which such an author as Tutchin thought himself entitled to entertain of the superior dignity of that character all along. He thought that the falsifying of weights and measures was a more mechanical employment than the forging of lies; and that it was less gentleman-like to rob men of their money than of their good name. But that is a peculiarity which belongs to the little vanity that inspires an author. I trust therefore, when I speak of Jord chief justice Holt, and of the time in which he lived, I speak (for all, but particularly for this) of as great an authority as ever sat in judgment upon any case whatever. His name was held high during his life, and has been held in reverence in all subsequent times. He deserved popularity, by doing that which was See Tutchin's Case, vol. 14, p. 1099, where the pillory is stiled the punishment of bakers; and for more concerning the pillory, see vol. 8, p. 401; vol. 7, p. 1209; vol. 14, p. 446; vol. 19, p. 809.. I am to judge of crimes in order to the prosecution: your lordship is to judge of them ultimately for punishment. I should have been extremely sorry, if I had been induced by any consideration whatever to have brought a crime of the magnitude which this was (of the magnitude which this was when I first stated it) into a court of justice, if I had not had it in my contemplation also that it would meet with an adequate restraint; which I never thought would be done without affixing to it the judg.. ment of the pillory. I should have been very sorry to have brought this man here, after all * Dr. Johnson appears not to have concurred in this opinion of Mr. Attorney General. "I hope," said he, " they did not put the dog in the pillory for his libel, he has too much literature for that." Boswell's Life of John Son, vol. 3, p. 378, 8vo edition. sense; but be allowed the a sort of understanding. My lords, he shifted his ground in his reply. He first, out of kindness and compliment to me, supposed what I had written to be beneath common sense: my lords, he afterwards found it proper to make it beyond common sense. At first I was a fool: at last I was a madman. My lords, at first he thought it(I forget his expression) but he thought it can the aggravations that lie has super-induced anger at any thing that has passed. The genupon the offence itself, if I had not been per-tleman on the trial has stripped me of common suaded that those aggravations would have induced the judgment of the pillory. The punishment, however, to be inflicted for this crime rests finally with your lordship. If the Court is of opinion that that judgment is not to be pronounced, it will be my humble duty to submit with the most perfect acquiescence. I have no interest in the business, but as the officer of the public. I am nothing near so good a judge of the interest which the public have in the busi-dour (I think he said) to the names of persons ness as your lordships sitting in this court; but when I am stating a matter to the Court for judgment, I must state it as I feel it; and I feel it so. And if it were my province to do more than to state it so, I should still continue to think of it as I do at present. Mr. Horne. My lords, though your lordships' judgment is to be pronounced upon my. self, I shall attend to hear it with the indifference and curiosity of a traveller; which I was early instructed to do in such circumstances as these, long before I could imagine I should ever be in them. My lords, I am a little the more at a loss to address your lordships, because (and I am not ashamed to be laughed at for my disappointment) I acknowledge that I eame this morning into the court in the full assurance, that I should find less difficulty to go out of it than I did to come in. My lords, I had no notion at all that evidence could supply the defects of the information; or that it would be attempted to be so supplied by evidence. I did not, it is true, at the time 1 objected to the deficiencies of the information, I did not amongst other things add evidence. I believe I am time enough now to move any thing in arrest of judgment; and if I am, I desire that your lordships would understand me now to object to the supplying of the defects of an information by any evidence whatever. My Jord, I apprehend that your lordship had directed Mr. Attorney General and myself (1 ought, if what he has said of me be any thing like truth, to beg bis pardon for coupling my unworthy name with his) but, my lord, I thought that he and I were directed, if we could, to produce precedents. I own to your lordship, I did not well understand the direction when I received it; because I had laid before you a sacred principle, with which I was much better acquainted than with precedents; and one for which I would willingly give up all the precedents that ever existed. My lords, I shall no doubt be very irregular in the order of what I shall say to your lordships; and I should not have said a word, if there were not in Mr. Attorney General's harangue some things that might easily stir a man to anger, if he was not as little susceptible of it as I am. My lords, I feel not the least * See in the case of Patrick Hurly, vol. 14, p. 446, a counsel insisting that the pillory is the punishment for a cheat, alluded to, though distantly, to suppose that what I had written was false. To save others from some scandal of imprudence or impropriety, he thought it candour to impute falsehood to me. My lords, when that was proved to be true, he only said, that he did not mend the matter indeed, whichever side of the case I took, nothing could mend the matter. It is not my business, my lord, to take the smallest notice of what fell from your lordship; nor shall I mention a number of things, which I might justly be permitted to mention, of wilful and gross misrepresentations of the evidence upon the trial: I should not have mentioned it at all; but Mr. Attorney General has hinted, though not specified, misrepresen tations by me of the proceedings of the trial. My lords, he has endeavoured to alarm me with monstrous fines, with long imprisonment, with infamous punishment. My lords, infamy is as little acquainted with my name as with that gentleman's or with your lordships. I feel no apprehensions from the pillory. I do feel some little pain that a gentleman, taking advantage of my situation, should say and offer those things, unfounded in appearances even of truth, against me, which neither he nor any man like him dare to insinuate in any other station but this. He has attempted likewise to insinuate, my lords, a species of robbery. When he did so he was guilty of falsehood. He said, that my witness did not prove that the 50. was paid into the bankers. My lords, he literally proved it. My lords, he represents me as speaking the language of" if you dare to punish me;"and he says, "it is a language addressed to the lowest of the mob." Judeed I think so too: but it is his own language, not mine. My lords, he has dwelt upon my occasions, my desperate situation, my want of character and fortune. My lords, it is may misfortune that from my cradle I have had as effeminate an education and care and course of life as Mr. Attorney General. It is my misfortune that there was not a greater want of fortune and as for my occasions, my means have always been beyond them. I should rather, my lords, if I was speaking in extenuation or to mitigate your punishment, I should rather close in with Mr. Attorney General, and acknowledge my. self that desperate, helpless wretch that he has represented me: perhaps it would be the most effectual motive to your lordships' compassion. My lords, he has talked to your lordships of my patrons. I have had in my life, and very early in my life, the greatest of patrons; aye! with all their power, greater than any that now hear me. My lords, I renounced my patrons, because I would not renounce my principles; repeatedly, over and over again, of different descriptions, and in different situations. My lords, I am proud, because I am insulted; or else I certainly should not have held any of this language. My lords, Mr. Attorney General through a blameful carelessness has told you a story of a theological, polemical dispute between my self and a parishioner. I can easily conceive that he let himself fall into that mistake for the sake of drawing a smile from your lordships and the court upon the reverend gentleman. But in this, like the rest, my lords, there is not a syllable, not the smallest foundation of truth. 1 never had a theological, polemical dispute. My lords, I am free to acknowledge, that no theological disputes that ever I read, and I have endeavoured to read all that ever happened, none of them ever interested me in the manner that the present disputes do interest me. My lords, I was not made to be a martyr. I have opinions of my own; but I never intended to suffer for them at the stake. My lords, he has endeavoured to insinuate that all that I wrote, and all that I said, was for the sake of a paradeful triumph over jus. tice and he has talked again and again of the mob. My lords, the mob have conferred no greater favours upon me than upon Mr. Attorney General. I have been repeatedly followed by very numerous mobs in order to destroy me, single and alone, for a great length of way; not once, or twice, or three times, but four and five times; two or three thousand at my heels. I am sensible of the ridicule of the situation, even whilst I mention it. These are the only favours that I have ever received from the mob; these are the only favours that I have ever solicited; and I protest to your lordships I had much rather hear the mob hiss than halloo: for the latter would give me the head-ach, the first gives me no pain. My lord, I have heard of those who have expressed more wishes for popularity than ever I felt. I have heard ́it said, and I think it was in this court, that they would have popularity: but it should be that popularity which follows, not that which is sought after." My lords, I am proud enough to despise them both. If popularity should offer itself to me, I would speedily take care to kick it away. My lords, as for ambition, and bodies of men, and parties, and societies, there is nothing of it in the case. There is no body of men, with whom I can think, that I know of. There is no body of men with whom I am connected. There is no man or men from whom expect help, or assistance, or friendship, of any kind, beyond that which my principles or services may deserve from them individually. Private friendships I have, like other men; but they are very few: however, that is recompensed to me, for they are very worthy. My lords, Mr. Attorney General has said, that I represented imprisonment as no kind of inconvenience to me. As no kind of inconvenience, my lords, will not certainly be true; because the great luxury of my life is a very small but a very clean cottage: yet, though imprisonment will be so far inconvenient to me, the cause of it will make it not painful. My lords, I find that not only I have a sort of understanding very different from that of Mr. Attorney General, but my notions of law, and my notions of humanity, are equally dif ferent from his. My lords, between the time that I had last the honour of appearing before you and the present time, it happens very unfortunately for Mr. Attorney General that he has proved, that not only my notions of law and decency, but my notions of propriety and humanity, are widely different from his and I mention it, my lords, because it goes immediately to the doctrine now attempted to be esta blished. Mr. Attorney General has heard a person, as great as himself, between that time and this, justify the legality, the propriety, the humanity of the tomahawk and the scalping knife. Between the last time I appeared here and this time, these have been the sorts of king's troops justified, by a high officer of the law,* to be employed, as legal, proper, mild, and hu mane. My lords, Mr. Attorney General has said, that I declared upon the trial that I had a certain employment which made it necessary for me to be confined as long as your lordships should or would confine me. That is not true. My lords, I did say that I had an employment, had something to do, that would confine me to my room longer than your lordships would confine me. 1 believe I said more-I neither intended when I said it to affront you, nor will attempt at this time to appease you-I said longer than your lordships dare to confine me; those were the words: and I said it, because I did believe and do still believe that your lordships dare not wilfully do injustice. My lords, as for that certain employment, I did not say it was necessary. It is an employment of amusement merely; an employment that I meant to make public; but not for the sake of gain or praise. My lords, when first I began my life, I was encouraged to worthy and to virtuous actions by the temptation of praise: I have long since learned, my lords, to be able to do those actions which I think virtuous, in despite of shame. My lords, Mr. Attorney General bas done, See New Parl. Hist. vol. 18. 3 E what I have before heard attempted to be done with very great sorrow: he has attempted to reinstate the Star Chamber. The fault he finds with it is only its rankness," before the prosecutions grew so rank in the Star Chamber, and which rankness caused it to be abolished." -I don't recollect the words of that act by which it was abolished; but I am sure that its rankness alone is not the reason given. If the gentleman would lend me his memory, I would then repeat them-none of the powers, nor any like them (your lordships know better the words, I don't recollect the words) but nothing like them was ever to be put in use again in that or in any other court, as well as I can remember. Mr. Attorney General has talked of the personal conceit of Tutchin concerning authors. I thought myself, till a strong zeal made me act otherwise, as little likely to become an author as any of those gentlemen who hear me. I have never been a contractor with any news-papers; he knows I have not. If I desired the printer of the Public Advertiser to give me up always to justice, my lords, I cannot easily conceive how Mr. Attorney General could find any thing to justify his oratory upon that subject. Is that a defiance of a court of justice? Is that flying in the face of the justice of the country? To be willing to abide its sentence; not to withdraw myself from its censure: not to wish even to avoid any enquiry into my conduct; is that to be that bold-faced audacious man that defies the justice of his country? My lords, if it is, I can only again deplore that a gentleman, who must have great understanding, and great talents and abilities, from the office which he holds, that the understanding of that gentleman should be so very different from mine. My lords, I have already appeared in this situation often enough; and if I had, as he imagines I have, any luxury or pleasure in holding myself forth in public; if I had, it would long before this have been satisfied.-There are many other things which I might say to your lordships; but as I trust, and fully trust, that I shall still find a remedy, my lords, against the present decision, I shall forbear saying one syllable in extenuation of what the Attorney General has been pleased to charge me with; and leave your lordships to pronounce your judgment without the least consideration of me, without the smallest desire that you should abate a hair from what you think necessary for the justice of my country. I shall leave it entirely to your lordships' discretion. upon your own cross-examination of one of the witnesses, you gloried in the publication of it; that you avowed you did not desire to be screened; and that you avowed yourself the author of it. Since that indeed, in this court, you attempted to gloss over parts of this libel, and to confine its tendency to a possible private charge upon the king's troops, and not concerning his majesty's government; to treat the word 'troops' as being indeterminate in its signification, and not carrying with it the construction which the information avers, and which the jury have found, of its "concerning the king's government and the employment of those troops by his authority." You have said very truly that evidence is not to supply any defect in an information. There is no defect in the information: the information sets forth the libel at large; and the information charges that libel to be "of and concerning his majesty's government," as I before mentioned. Upon that the court has now decided agreeably to the finding of the jury; and no man can really mistake the malicious meaning and insinuation of it. It is a libel which contains a most audacious insult upon his majesty's administration and government, and the conduct of his loyal troops employed in America. It treats those disaffected and traitorous persons who have been in arms and in open rebellion against his majesty, as faithful subjects-faithful to the character of Englishmen : and it falsely and seditiously asserts, that for that reason only they were inhumanly murdered by his majesty's troops at Lexington and Concord. By this same libel subscriptions too are proposed and promoted for the families of those very rebels who fell.in that cause, traitorously fighting against the troops of their lawful sovereign. This is the light in which this libel must appear to every man of a sound and impartial understanding; this is the plain and the unartificial sense of it. The contents of this libel have been too effectually scattered and dis persed by your means, as charged in the several counts of the information, and they have been inserted in divers and different newspapers. The contents are too well known, and I trust abhorred, to need any repetition from me, for the sake of observing farther upon their malice, sedition, and falsehood. The court have considered of the punishment fit to be inflicted upon you for this offence: and the sentence of the court is,That you do pay a fine to the king of 2007., that you be imprisoned for the space of twelve months, and until that fine be paid; and that upon the determination of your imprisonment, you do find sureties for your good behaviour for three years, yourself in 400!. and two sureties in 2001. each. Mr. Justice Aston. John Horne, clerk, you stand convicted, upon an information filed against you by his majesty's attorney-general, Mr. Horne, My lord, I am not at all aware of writing and publishing, and causing to be of what is meant by finding sureties for the printed and published, a false, wicked, and sedi- good behaviour for three years. It is that part tious libel, of and concerning his majesty's go- of the sentence that perhaps I shall find most vernment and the employment of his troops. difficulty to comply with, because I don't unThe libel has been openly read in court from derstand it. If I am not irregular in entreatthe record; and, upon the report of his lord-ing your lordship to explain it to me:-your ship who tried this information, it appears that, lordships, I suppose, would chuse to have your sentences plainly understood, and I know not the nature of this suretyship. Lord Mansfield. It is a common addition. Mr. Horne. And, it may be, a hardship. common satisfaction, was an employment by his majesty, or by any person in authority under him. It was equally consistent with a supposition, that the troops in the instance complained of employed themselves in acting without, or even Mr. Just. Aston. Not to repeat offences of contrary to the orders of those to whose orders this sort. Mr. Horne. Of this sort? Lord Mansfield. Any misdemeanour. they ought to have conformed. Nor did it follow, that because the advertisement was found to have been written concerning his ma imported an intention to arraign that govern Mr. Just. Aston. Whatever shall be con- jesty's government, that it therefore necessarily strued bad behaviour. Mr. Horne. If your lordships would imprisonment. Armies are properly considered as among me for these three years, I should be safer; because I can't foresee, but that the most meritorious action of my life may be construed to be of the same nature. Lord Mansfield. You must be tried by a jury, by your country, and be convicted. You know it is a most constant addition. You know that yourself very well.-Where are the tipstaves? To reverse this judgment, Mr. Horne brought a writ of error in parliament, and on his behalf it was argued by Mr. Lee and Mr. Dunning, that it is a principle in the law of England, that, in criminal prosecutions, the information or indictment must contain in itself a certain and explicit charge of the offence intended to be imputed to the defendant, and no defect of certainty in the charge can be helped or supplied by any proof, and still less by presumption or intendment, either in the jury who give the verdict, or in the court which pronounces judgment upon it. It is equally true, that all penal charges ought to be taken most favourably for the subject, in every stage of the prosecution; so that if it appears doubtful whether the fact alleged in the information or indictment be necessarily criminal, or may possibly be innocent, the prosecution shall fail; and though the jury find a general verdict, such verdict ought not to be construed by the court to find any thing beyond the plain and certain allegations in the indictment or information. In this case the jury had found that the king's troops, mentioned in the advertisement, meant his majesty's troops;' for this, and the publication by the defendant, were facts charged, and therefore might be properly said to have been found. If it should be admitted, which was not found, that the troops meant his majesty's army in America, there was nothing in the information that extended the imputation on those troops to his majesty or his ministers, unless it was in the introductory words, which had been resorted to as charging the advertise'ment to be written, of and concerning his majesty's government, and the employment of his troops.' If the jury were to be understood to have found it to be so written, (though from the that company passage kept with the words 'false, wicked, malicious, scandalous, seditious,' it might more properly be considered as a matter of inference than of charge,) it would not of necessity follow, that the employment of the troops with which Mr. Herne expressed his dis no the instruments of government, and are properly employed, whenever they are so employed in the defence of a just government. Whoever writes therefore concerning his majesty's armies, may be said to write concerning his majesty's government. But the suposed libel carried no imputation against his majesty, or his government; unless it should be understood to mean, that the misbehaviour which it was supposed to impute to the troops was in an instance wherein they were acting in due obedience to legal orders, under an authority derived from his majesty; but this was where charged, and consequently not found. In order to have supported the information in the manuer in which probably the prosecutor wished to have it understood, he ought to have shewn by proper averments, that there was at the time a rebellion existing in America; that the troops were sent thither to suppress it; that they were in the act of exerting themselves, in obedience to proper orders, towards this object; and that though the loss of lives was among the consequences of that exertion, it was no murder, nor in any sense a violation of law, but, on the contrary, perfectly justified by the occasion. Why averments to this effect were not to be found in the record, it was not difficult to conjecture, to those at least who understand that averments must be proved; and it might not be thought certain that a jury would be found who would assent to the truth of these propositions. It would be no answer to say that all this was notorious; or that at the trial it was proved; for if it were so, which was by no means admitted, it was perfectly immaterial, if the principle be, as it was conceived to be, that the judges are to receive or use no other knowledge of the facts essential to constitute a criminal charge, but what they collect from the record. On the other side it was contended by the Attorney General Thurlow and Solicitor General Wedderburn, that the crime of a libel consists in opprobrious words or signs, written, made, exhibited, or published, concerning some person, or other subject, which it is criminal so to revile. The accusation must therefore state the opprobrious words or signs, and they must be applied to the person or thing supposed to be reviled: but no technical form of words is necessary for that purpose. If the natural and apparent sense of the words themselves be opprobrious, and require no other medium to fix such meaning upon them, no |