The question is, Whether the writing described in the information is sufficiently 'charged to make it a libel upon his majesty's government?' By the words sufficiently charged' I understand to be meant, Whether it is charged with sufficient certainty ?* But, though the law requires certainty, we have no precise idea of the signification of the word; which is as indefinite in itself, as any word that can be used. Lord Coke, speaking of it, represents it thus [Co. Litt. 330, a. & 5 Co. 121]: 'There are three kinds of certainties: certainty to a 'certain intent in general; certainty to a common intent; and certainty to a certain intent in every particular.' This last is rejected in all cases, as partaking of too much subtlety. The second is sufficient in defence: the first is required in a charge or accusation. 6 Perhaps this account of it does not convey a much clearer idea; but I apprehend it will become intelligible, by considering the grounds of the distinctions, taken in the present case, upon the certainty required in a charge. innuendo or averment to support it can be necessary to raise an apparent meaning. If the application of such opprobrious words be expressly made in the phrase of the libel, no innuendo, or averment to support it, can be wanting to raise an express application. It is a well known rule, that judges are to understand a libel as others do, without straining to find a | loop-hole to palliate the offence, which in some measure would be to encourage scandal. It would be a ridiculous absurdity to say, that a writing, understood by the meanest capacity, cannot possibly be understood by a judge and jury; therefore judges will not resort to every possible construction, only to avoid the natural one; much less give a different sense to the words, by supposing circumstances which, if they exist, should be proved. The words complained of conveyed, in their natural and apparent meaning, a gross reflection, the imputation of an heinous and hateful crime, upon the employment of the national force, and consequently upon his majesty's government, of which the employment of that force is an important part. These words, the king's troops,' in a The charge must contain such a description common and obvious sense, mean that national of the crime, that the defendant may know force which the law takes notice of and autho-what crime it is which he is called upon to anrises. The literal meaning of the words was swer; that the jury may appear to be warconfirmed by the context, and it was impossible ranted in their conclusion of guilty' or not to believe that any English reader had put ano-guilty' upon the premises delivered to them; ther interpretation upon them, much less had and that the Court may see such a definite any such reader mistaken them to mean flocks crime, that they may apply the punishment or companies of strollers, &c. as the objection which the law prescribes. idly supposed. The application of these op- This, I take to be what is meant by the difprobrious words to the king's government, and ferent degrees of certainty mentioned in the the employment of his troops, not only appear-books: and it consists of two parts; the matter ed in the phrase of the libel itself, but was expressly charged in the information, and proved even by the defendant's witnesses, and found by the jury; that matter therefore was also concluded. The averments suggested in the defendant's argument were by no means necessary to constitute a state of this crime; for supposing there had been no rebellion, or troops employed to suppress it, or engagement by the king's troops, or slaughter made of the rebels, the guilt of this calumny would not have been diminished by its total want of foundation or colour of truth. After hearing counsel on this writ of error, the following Question was put to the Judges; "Whether the writing contained in the infor mation is, in point of law, sufficiently charged to be a libel upon his majesty's government ?". (Brown's Cases in Parliament, vol. 4, p. 370.) And, on Monday, May 11, 1778, Lord Chief Justice De Grey delivered the unanimous opinion of all the judges in the affirmative, and gave the reasons as follow: My lords, I have conferred with the Lord Chief Baron, and the rest of my brethren the judges, upon the question which your lordships have propounded to us; and I am deputed to deliver their opinion to your lordships upon it, to be charged, and the manner of charging it. As to the matter to be charged, whatever circumstances are necessary to constitute the crime imputed, must be set out; and all beyond are surplusage. And therefore, in the instance of the prosecution for perjury which has been cited, it was necessary to set out the oath, as an oath taken in a judicial proceeding, and before proper persons, in order to see, whether it was an oath which the Court had jurisdiction to administer. In the prosecution of a constable for not serving the office [5 Mod. 96], it is necessary to set out the mode of his election; because, if he is not legally elected, he cannot be guilty of a crime in not serving the office. Where the circumstances go to conthe crime is a crime independently of such cirstitute a crime they must be set out: where cumstances, they may aggravate, but do not contribute to make the offence. To apply these principles to the case of a libel it may happen, that a writing may be so expressed, and in such clear and unambiguous words, as that it may amount of itself to a libel. In such a case, the Court wants no circumstances to make it clearer than it is of itself: and therefore, all foreign circumstances intro * Respecting certainty, see the "Esta ri vra Advertisement, part 2, ch. 6, and a Note to Eunomus, Dialogue 2, p. 46. duced upon the record would be only matter of supererogation. But, if the terms of the writing are general, or ironical, or spoken by way of allusion or reference; although every man who reads such a writing, may put the same construction upon it, it is by understanding something not expressed in direct words; and it being a matter of crime, and the party liable to be punished for it, there wants something more. It ought to receive a judicial sense, whether the application is just: and the fact, or the nature of the fact, on which that depends, is to be determined by a jury. But a jury cannot take cognizance of it, unless it appears upon the record; which it cannot do without an averment. Thus much is sufficient to be said, in regard to the matter that is necessary to be averred. Secondly, as to the manner of making the averment: there are cases, where a direct and positive averment is necessary to be made in specific terms; as, where the law has affixed and appropriated technical terms to describe a crime; as in murder, burglary, and others. It is likewise true, that in all cases, those facts which are descriptive of the crime, must be introduced upon the record by averments, in opposition to argument and inference. In the case of a libel which does not in itself contain the crime, without some extrinsic aid, it is necessary that it should be put upon the record, by way of introduction, if it is new matter; or by way of innuendo, if it is only matter of explanation. For an innuendo means nothing more than the words, id est,'scilicet,' or 'meaning,' or 'aforesaid,' as explanatory of a subject matter sufficiently expressed before; as, such a one, meaning the defendant, or such a subject, meaning the subject in question. But as an innuendo is only used as a word of explanation, it cannot extend the sense of the expressions in the libel beyond their own meaning, unless something is put upon the record for it to explain. As in an action upon the case against a man for saying of another, He has 'burnt my barn,' [4 Co. Barham's case], the plaintiff cannot there, by way of innuendo, say, meaning his barn full of corn;' because, that is not an explanation of what was said before, but an addition to it. But if in the introduction it had been averred, that the defendant had a barn full of corn, and that in a discourse about the barn, the defendant had spoken the words charged in the libel of the plaintiff; an innuendo of its being the barn full of corn would have been good: for by coupling the innuendo in the libel with the introductory averment, 'his barn full of corn,' it would have made it complete. And I conceive, that this kind of extrinsic matter may be introduced upon the record, either by direct averment, or by recitals, or by general inference; and that such introductory matters and explanatory innuendoes so made to appear upon the record de all amount to sufficient averments. An innuendo is an averment, that such a one, means such a particular person; or, that such a thing, means such a particular thing: and when coupled with the introductory matter, it is an averment of the whole connected proposition, by which the cognizance of the charge will be submitted to the jury, and the crime appear to the Court. The libel in the present case says, That the subscription proposed to be entered into was 'for the relief of the widows, orphans, and aged parents of our beloved American subjects, who, faithful to the character of Englishmen, ' and preferring death to slavery, were for that reason only inhumanly murdered by the king's troops.' It is not necessary to consider, whether this libel comes within the description of a libel, which constitutes a crime of itself, without any assistance of other circumstances; or what our opinions upon that question might be; because, we are all of opinion, that there is sufficient matter expressed with sufficient certainty to constitute the crime. But, two questions have been made upon the introductory part of the information: First, Whether, the interior subsequent matter being introduced by the words of and concerning 'his majesty's government, and the employment of his troops,' these words amount to a sufficient averment to put it legally upon the record? And secondly, Whether, admitting it to be legally put upon the record, the sense of it must be understood to be a libel upon his majesty's government? And first, Whether it is legally put upon the record in point of form?'-It is put upon the record by these words:- That the de'fendant wrote and published such a libel, of ' and concerning his majesty's government and 'the employment of his troops.' This is an averment; for the fact is, that he wrote and 'published the libel;' and the circumstance connected with the fact, and which therefore makes a part of it, is, that he wrote and pub lished the paper or libel, of and concerning 'his majesty's government and the employ 'ment of his troops.' If the jury, upon the defence set up, bad found, that the libel was not published relative to the king's government, or the employment of his troops, the information was not proved: for it contains an entire proposition. And if it had appeared, that the paper related to a voluntary act of the troops only, and not to an employment of them by government, the information would be false: because the prosecutor would have failed in the proof of the proposition, that it was written, of and concerning the king's government and 'the employment of his troops.' This is no new doctrine: the cases cited at the bar shew it. In Tutchin's case,* one part of the libel was this: The mismanagements ' of the navy, have been a greater tax upon 'the merchants, than the duties raised by go'vernment.' It might have been said there, What navy? Whose navy? was it the navy of *See it in this Collection, vol. 14, p. 1095. 6 From these cases it is clear, that the words tion of the new matter. And therefore in the present case, it is, in point of form, a sufficient averment upon the record, that the paper was written of and concerning the king's govern 'ment.' England, or did it mean only the merchant the information in the introductory part say, ships? The information charged, that the de- that it was a libel of and concerning the jusfendant had written a scandalous and seditious tices of Suffolk.' But when the information libel; in which the information stated in the came to state any of the orders in the adverintroductory part, ' of and concerning the royal tisement, it added this innuendo, ‘meaning navy of this kingdom and the government of an order of the justices of peace for the county the said navy, it is written so and so.' When ' of Suffolk.' But these innuendoes could not the information came, in stating the libel, to the supply the want of an averment in the introword navy,' by an innuendo, it explains it ductory part, of its being written of and conthus: meaning the royal navy of this king-cerning the justices; because they were not dom; which, being coupled with the aver-explanatory of, but in addition to, the former ment in the introductory part of it, made the matter; and the Court were of opinion, that sense and the charge complete.-Again, in ano- the information having omitted the words, of ther part of the same information for another and concerning the justices' in the introduclibel, one part of the libel was thus: There is tory part, such omission was fatal: and judganother plot against you:' and afterwards, ment was accordingly arrested. it is a plot preparatory to your trial.' What trial? The introductory part of the informa-of and concerning' are a sufficient introduction charged, that this libel was written, of and concerning the defendant, and a prosecution to be had against him for divers seditious libels by him, before that time, composed and published.' The information afterwards explains you' thus; meaning 'the defendant.' This, connected with the averment in the introductory part, was a sufficient explanation of the charge. The defendant was found guilty of the several libels in the information. He moved in arrest of judgment; but not upon the ground of the insufficiency of the averments: for it was sufficiently understood, that' of and con'cerning the royal navy, &c.' was good without any other additional averments. In the case of Rex v. Matthews, which was an indictment upon stat. 6 Ann. c. 7, the words of the libel were these; From the solemnity of 'the Chevalier's birth, and if hereditary right 'be any recommendation, he has that to plead ' in his favour.' It was there said, What Chevalier? Who is he? What recommendation? And to what thing?-In the introductory part, the information charged the libel to have been written, of and concerning the Pretender,' and of and concerning his right to the crown of Great Britain.' And it was held, that the innuendoes in the body of the libel, explaining the words Chevalier, &c.' to mean the Pretender and his bereditary right to the crown of Great Britain, when connected with the averments in the introductory part, of its being written, of and concerning the Pretender and 'his right to the crown of eat Britain,' were a sufficient explanation make good the charge. 6 * 6 But secondly, it has been argued upon the further charge respecting the troops, that it does not import that these troops were so employed by act of government. And therefore, though it should be held to have been written, of and concerning the king's government,' yet it does not appear to be so, relative to the act of the troops.' It has been further argued, that in giving their opinion upon this point, 'The judges can take no knowledge of any thing that is said or written, but what they can collect from the record;' and likewise, That every accusation taken from the record must be plain and clear, and is not to be strained by any forced meaning or construc'tion.' But, as the crime of a libel consists in conveying and impressing injurious reflections upon the minds of the subject; if the writing is so understood, by all who read it, the injury is done by the publication of these injurious reflections, before the matter comes to the jury and to the Court. And if courts of justice were bound by law to study for any one possible or supposable case or sense, in which the words used might be innocent, such a singularity of understanding might screen an offender from punishment, but it could not recal the words, or remedy the injury. It would be strange to say, and more so to give out as the law of the land, that a man may be allowed to defame in one sense, and to defend himself by another. Such a doctrine would indeed be pregnant with the 'nimia subtilitas,' which my lord Coke so The true rule to go by, is laid down by my lord King in the case of Rex versus Matthews, which is this: That the court and jury must ' understand the record as the rest of mankind do.' In the case of Rex versus Alderton, [Sayer's Reports, 280], the libel was an advertise. ment, reciting certain orders made for col-justly reprobates. lecting money on account of the distemper amongst the horned cattle, advertised by the clerk of the peace for the county of Suffolk; and it charged, that by these orders the money collected had been improperly applied. The information charged this to be a libel on the justices of Suffolk. In the body of the libel, it was not said, by order of the justices,' nor did * See it in this Collection, vol. 15, P: 1323. This being the rule, and the accusation such as I have before stated, it remains to be seen only what the words in the present case are. They are these: That the defendant, of and 'concerning the king's government and the ' had done.' ⚫ employment of his troops,' said, 'that inno-ing, in support of his argument, relied on the cent subjects had been inhumanly murdered authority of Mr. Justice Blackstone's Comby the king's troops, only for preferring death mentaries, it appears that lord Ellenborough to slavery. Do these words import in their mixed with general expressions of praise others natural and obvious sense, that the king's troops extremely depreciatory of that work. "He were employed by the act of government, in-would say that at the time of writing his Comhumanly to murder the king's innocent sub-mentaries, judge Blackstone was extremely jects? There can be no doubt but that the ignorant of criminal law."" Blackstone when king's government comprehends all the exe- he compiled his lectures was comparatively an cutive power of the state, both civil and mili- ignorant man, he was merely a fellow of All tary; that he employs all the national force, Souls College, moderately skilled in the law. and that his troops are the instruments with His true and solid knowledge was acquired which part of the executive government is to afterwards; he grew learned as he proceeded be carried on. The introductory part of this with his work.""There were many things information charges, that the subject of the in Blackstone's work which, as a lawyer, he writing in the present case was, The troops, was bound to say were mis-statements, among and the king's troops, and the business they them was the proposition to which the noble lord had referred." Lord Erskine, however, It has been truly said, that the king's troops powerfully vindicated the Commentaries; may, like other men, act as individuals: but The work shewed the author's deep rethey can be employed as troops by the act of searches into all the principles of our legal government only. If the averment therefore constitution, and as informations er officio were amounts to this, that, in the discourse which part of the ancient law, it was from history and was beld, the words were said of and concern-writers of authority which were open to him, ing the king's government;' the natural inport of them, without any forced or strained meaning, appears to us to be this; I am speaking of the king's administration of his government relative to his troops, and 1 say, that our 'fellow subjects, faithful to the character of Englishmen, and preferring death to slavery were for that reason only inhumanly murdered by the king's order; or the orders of his officers.' The motive imputed tends to aggravate the inhumanity of the act, and consequently, of the imputation itself: because it arraigns the government of a breach of public trust, in employing the means of the defence of the subject in the destruction of the lives of those who are faithful and innocent. As to any other circumstances not stated in the information; if those which are stated, do of themselves constitute an offence, the rest supposed by the defendant, whether true or false, would have been only matter of aggravation, and not any ingredient essential to the constitution of the crime, and therefore not necessary to be averred by the record. Upon the whole of the case therefore, we are unanimously of opinion, that the record contains all facts and circumstances necessary to warrant the conclusion of the jury. And 'that it likewise contains all facts and circum⚫stances necessary for the information of the Court to give their judgment upon the occa⚫sion.' Whereupon it was ordered and adjudged, That the judgment, given in the court of King'sbench for the king, be affirmed, and the record remitted, &c.-(Cowper's Reports, p. 682.) In the course of the debate July 17, 1812, respecting lord Holland's bills relative to informations ex officio, (see New Parl. Deb. vol. 23, p. 887, 1069, et seq.) lord Holland hav that their true nature was to be traced; from his not having attended the courts, he might not know the modern practice, but he knew the grounds upon which such informations had been first adopted and finally retained, when their expediency came to be considered; and he appeared to him to be correct, when he said, 'that the objects of them, were properly such enormous misdemeanors as tended to endanger or disturb the government, and in which a moment's delay might be fatal; in such cases, the law had given to the crown the power of an immediate prosecution without waiting for any previous application to any other tribunal.' He entirely agreed with his noble and learn. ed friend that this was not quite a correct view of the use of informations in our own times, nor even when the Commentaries were written; but to arraign the work on that account, would be trying it not by the principles of the law, but by the very abuse complained of." Indeed, whatever be the authority of Mr. Justice Blackstone's opinions at the time of his death, to that authority, and not merely to the weight of his opinions when he compiled his lectures, are his Commentaries as he left them entitled. Nine editions of Blackstone's Commentaries were published in his life-time, and it appears from Hargrave's Jurisconsult Exercitations, vol. 1, p. 381, that the tenth edition, though published after Blackstone's death, bad been corrected by him. which Mr. Horne said so much in this case, is Not unconnected with the law of libel upon the dictum of lord Ellenborough in the case of Dubost v. Beresford, (2 Campbell's Nisi Prius Rep. 511,) being an action for destroying a picture, which was publicly exhibited, but which it appeared was highly defamatory of a gentleman and his wife who was the defendant's sister. Lord Ellenborough, C. J. B. R. said "If it was a libel upon the persons introduced into it, the law cannot consider it valuable as a picture. Concerning appeal of murder, spoken of in p. 716, see the cases of Spencer Cowper, vol. 12, p. 1106, and Thomas Bambridge, vol. 17, p. 397. In Vol. 16, which is just published, of the New Parliamentary History (p. 42.) it appears that the attempt at the time of the Revolution to take away Informations in the court of King's Bench, (see p. 678) was mentioned by Mr. Nicholson Calvert in his speech on March 4, 1765, in the House of Commons, upon moving for leave to bring in a Bill for the relief of his Majesty's subjects, touching Infor mations in the King's-bench, by and in the name of his Majesty's Attorney-General.'. "Much doubt has been formerly entertained by those who where most eminently distinguished for their knowledge of the criminal laws of this country, whether any criminal informations were lawful. The constructions of Magna Charta, cap. 29, some ancient statutes, and books of the law, declare and agree, That no man can be charged, but by indictment or presentment. In the case of the King and Berchet and others, 1 and 2 William and Mary, reported in 5th Mod. 463, and there called Prynne's case, sir Francis Winnington averred that lord chief justice Hale had often said, That if ever informations came in dispute, they could not stand, but must necessarily fall to the ground.'-It is admitted, however, that the court of King's-bench in that case held, that informations lay at common law. "The present question therefore will be, Who are the officers known to the law, and described in the law books, as the persons with whom only this right of exhibiting informations ex officio rested?—It may be clearly collected, from the authority of the legislature, and the law books, that these officers were only the king's attorney-general, and the king's coroner, to which latter is always added, in such liament, no law book, mentions any other officer, cases, the title of attorney also—No act of paras having this power in any case, or under any circumstances. From the king's coroner this power was taken away by the statute 4 and 5 William and Mary, cap. 18, and was then left in the attorney general only.-Serjeant Hawkins in his second volume of Pleas of the Crown, fol. 268, observing upon that statute's taking away this power from the king's coroner and attorney only, says, from whence it follows, that informations exhibited by the attorney general remain as they were at common law. "Such informations can only be exhibited in the court of King's-bench, of which court the king's attorney general and the king's coroner and attorney, commonly called the master of the Crown-office, are officers upon record, and have their known seats and places there as such. On the writ of error in Wilkes's Case, (See Vol. 19, p. 1126) in support of the first error assigned, viz. "That it does not appear by the said records, that the said sir Fletcher Norton, "Sir Bartholomew Shower, in his Reports knight, by whom the said informations against fol. 114, in the same case above mentioned in 5 the said John Wilkes were exhibited, had any Mod. argues and observes, upon the statute 31 lawful power, warrant, or authority, according Elizabeth, cap. 5, and its proviso in sect. 3, proto the law of the land, to exhibit the said in-viding "That that act shall not extend to any formations in the records aforesaid specified; and, therefore, that the said informations are not sufficient informations in law, whereon to convict the said John Wilkes of the offences in and by the same informations charged upon him, and to ground the aforesaid judgments against him," the following reasons were alleged in his printed Case, signed by his counsel (Glynn and Davenport.) "I. Because the said informations are exhibited and filed by the said sir Fletcher Norton, as his Majesty's Solicitor General, ex officio, when, by virtue of such his office, he had no general authority so to do. "II. Because it does not appear, that he had any special authority so to do. such officers of record as have, in respect of their offices, theretofore lawfully used to exhibit informations,' that it is the judgment of parliament, that there were officers to exhibit them, and those that are meant must be the attorney and his deputy the coroner, for I know, says he, no other.-It may be thought that sir Bartholomew Shower is inaccurate in calling the coroner deputy to the attorney, because the coroner has a superior seat in the court of King's-bench to the attorney.-But sir Bartholomew Shower must be understood to speak of the coroner, as deputy only in this instance, be not having equal power with the attorney over the information when exhibited; for the coroner cannot put a stop to it even though he |