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 Jord Russell's guard against all erroneous and imperfect indictments from all false evidence and proof" (What immediately follows does not, 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 have 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 intended within this overt fait," or open deed, (these, my lords, are the averments which are similar to those that I propose these are the averments which Mr. Attorney-General enquired after)" yet (he says) the indictment should have set forth, that de facto the king | had chosen a certain number of men to attend upon and guard his person, and set forth where they did attend, as at Whitehall, or the Meuse, or the Savoy, &c. and that these were the guards intended by the indictment to be seized and destroyed; that by this setting forth, the court might have taken notice judicially, what and who were meant but to seize and destroy the king's guards, and not shew who and what is meant, makes the indictment very insufficient." My lords, Mr. Attorney-General (I beg the court's pardon, I shall take up very little of their time) the Attorney General says, he expected I should have said that the matter contained in the information is no libel. I should perhaps have said so, if libel had been such a technical term that I could have known what it meant and if it was such a definite and technical term, then perhaps my objection would not have all that weight with you which I now believe it will. The sending of a wooden gunt was adjudged by this court to be a libel. There are many other things that might be adjudged libels. It is impossible for me to say what libel means. It is not a technical term; and perhaps if it had been, the AttorneyGeneral 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. 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. Lord Mansfield. Whatever the degree of guilt may be, how strongly soever it may have been proved, or whatever observations may have arisen in this case; yet if the defendant has a legal advantage from a literal flaw, God forbid that he should not have the benefit of it. It is most certain, that at the trial the information was considered to be words spoke of and concerning the king's government and his em ployment of his troops; that is, the employment of the troops by government. Upon that ground the defendant called a witness, Mr. Gould. The Attorney General rose to object to him; but it was very clear that he was a proper witness; and he acquiesced immediately, because it was extremely material to shew what the subject-matter was to which the libel related-if it was the employment of the troops under proper authority that came within the charge in the information.-Had it been a lawless fray (which I believe I said at the trial,) had it been a lawless fray it would not. Though the saying so might have been a libel of the individual's, yet it would not have been this libel: it would not have been this libel of the king's troops employed by him. Now at first, and at present, it seems to me, that "of and concerning the king's government and the employment of his troops," pins it down. But. I doubt a little upon it. There is some weight in the objection, whether in the form of drawing there should not have been innuendoes. In common reason and understanding, it is charg 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, 3 D Josity over and above that certainty which is sufficient to every reader: and we will go on with the rest, de bene esse, as we could not pronounce judgment upon it now, and will consider of it till he comes up again, if we find sufficient to satisfy us to over-rule the objection. [Lord Mansfield then read his notes of the evidence given upon the trial as follows.] Lord Mansfield. This is an information filed by the Attorney General against John Horne; and it was for publishing the advertisements that have been read from the information. Thomas Wilson proved the advertisements in question, the manuscripts, to be the band of Horne; and Henry Sampson Woodfall, be published the advertisements. He swears that the defendant gave him a paper the 7th of June, to publish in his own and send to the other papers; and that the defendant paid the fees. Then he produced two advertisements to publish. The defendant cross-examined him, and he assented to the question of the cross-examination, by saying, "By your desire I inserted these advertisements, and published them as your act and deed. You never desired to be screened; but you desired to be given up. You said, they should not want full evidence." William Woodfall proved likewise a paper given him by the defendant to be inserted in The London Packet and Morning Chronicle; which were the advertisements in the record. Therefore, upon the fact of printing and publishing there is no doubt at all. The defendant called a witness to prove, that really and in truth there was a subscription, and that the money was actually raised; and he likewise called William Lacey, who proved that 100. was paid to him, and by him remit ted to Dr. Franklin : that was 1001. and no And then the defendant called Thoroton Gould. And he said, that at Lexington, on the 19th of April 1775, he was a subaltern officer. He was ordered there by the adjutant of general Gage, the commander in chief of his majesty's troops, and governor of the province: and he, together with the other troops, set out; and between two and three in the morning he was taken prisoner: that he heard the provincials charged our troops." We found them armed. We supposed they were marching to attack us, from a continual firing of alarm cannon, early in the morning, as soon as we began to march. Notice or alarm guns are to raise the country." Upon this evidence the jury fonnd him guilty. more. Lord Mansfield. Mr. Attorney General, have you any thing to say? 1 Att. Gen. Mr. Horne, I suppose, will say what he can in extenuation. Lord Mansfield. Mr. Attorney General, have you any thing to say? Att. Gen. It belongs to the defendant, I apprehend, to state what he can to the Court in his extenuation. Mr. Horne. I shall state nothing in extenua | tion till your lordship's decision has told me that there was a crime. I do not know where the crime lies at present. My objection goes, that there is no crime in the information. It is impossible for me to extenuate that which I do not acknowlege. Lord Mansfield. Have you no affidavits of circumstances, or any thing? Mr. Horne. None in the world. Lord Mansfield. Let him be committed. Mr. Horne. Will your lordship commit me before it appears whether I am even accused of any crime? Lord Mansfield. No, then you may come up on Monday.-You came voluntarily now? Mr. Horne. I did. Lord Mansfield. Then come up voluntarily again.-If you should find any precedents on either side, I wish you would give them to us. [This recommendation to bring precedents the defendant, two or three times. was repeated to the Attorney General and to not himself very likely to produce precedents.] To which Mr. Horne replied, that he was King's Bench, Monday, Nov. 24, 1777. other day in the case of The King and Horne, Lord Mansfield. In reading my notes the evidence that was given by him at the trial, and I overlooked the reference to a written piece of I am told I did not state it; and therefore I will state it now. He produced to captain Gould the Publie Advertiser of the 31st of May 1775, which purported to be the copy of an affidavit made by captain Gould, while he was a prisoner in ed in that paper: and he asked him whether the custody of the rebels at Medford, and printthe contents were truly printed. I told him, that if he meant to prove the facts to be true as above, it could not be proved by affidavit, the they could not be proved by affidavit: but that man being present; and even if he was absent, if he meant to shew that, at that time, there existed a public account of it in the paper; that might be of use to restrain or qualify the meaning of the paper that was in question by the information.. He said, he desired it to be read in that light; and in that light it was read, and is as follows: « I Edward Thoroton Gould, of his majesty's own regiment of foot, being of lawful age, do testify and declare, that on the evening of the 18th instant, under the orders of general Gage, I embarked with the light infantry and grenadiers of the line commanded by colonel Smith, and landed on the marshes of Cambridge, from whence we proceeded to Lexington. On our arrival at that place we saw a body of provin cial troops armed, to the number of about 60 or 70 men. On our approach they dispersed, and soon after firing began; but which party fired first, I cannot exactly say, as our troops rushed on shouting and huzzaing previous to the firing, which was continued by our troops so long as any of the provincials were to be seen. From thence we marched to Concord. On a hill near the entrance of the town we saw another body of the provincials assembled. The light infantry companies were ordered up the hill to disperse them. On our approach they retreated towards Copcord. The grenadiers continued the road under the hill towards the town. Six companies of light infantry were ordered down to take possession of the bridge, which the provincials retreated over. The company I commanded was one. Three companies of the above detachment went forward about two miles. In the mean time the provincial troops returned, to the number of about 3 or -400. We drew up on the Concord side of the bridge. The provincials came down upon us; upon which we engaged and gave the first fire. This was the first engagement after the one at Lexington. A continued firing from both parties lasted through the whole day. I myself was wounded at the attack of the bridge, and am now treated with the greatest humanity, and taken all possible care of by the provincials at Medford. "EDWARD THOROTON GOULD.” There was a motion made the other day in arrest of judgment, and many objections, I understood, that were taken to shew that the charge, as it stands upon this record, is insufficient in law to support any judgment: that there was no averment as to the state of the Massachuset's colony at that time; either that there were riots, insurrections, or rebellious: that there were no averments that the king had sent any troops; that there was no averment that there was any skirmish or engagement; or how it began; or the nature of it: how it began, or how it went on, or ended: and that it was not averred that the employment of the troops was by the king's authority. The only objection that had colour in it was, what I mentioned last-that the employment of the troops was not averred to be by the king's authority. I thought then, and said, that the averment of the words being written of and concerning the king's government," was an answer; but no precedent was cited or alluded to on either side. I fancy the Attorney-General was surprised with the objection. But there was no precedent; and I could not say upon my memory whether precedents might not require some technical form of expression as to that medium through which words are averred to be written of the king's government. And if any flaw had happened formally, technically, or verbally, that were not at all founded in the sense or reason of the thing, I should in this case be of the same opinion that I was in the case of an outlawry-that the defendant ought to have the benefit of it: and therefore I desired that we might think of it for some time, that precedents might be searched, and the books looked into. We have fully considered of it, and the precedents have been looked into, and we have fully considered the information, and all the objections that were mentioned, and all the objections that we could think of; and we are all clearly of opinion, without any doubt, that the information is sufficient. An indictment or information must charge what in law constitutes the crime, with such certainty as must be proved; but that certainty may arise from necessary inference; in the manner settled in the case of The King and Lawley in Strange. Plain words, in a libel, speak for themselves. If they are doubtful, their meaning must be ascertained by au inuendo. Here the words are plain; they want no inuendo. They are averred to be written" of and concerning the king's government and the employ. ment of his troops." The obvious meaning is, that the employment of the king's troops must be under his authority; and it necessarily isso, if the words also relate to and are written of and concerning the king's government. This must now be taken to be true; because the verdict finds it. Had the question arose upon a demurrer, it must equally have been taken to be true. The gist of every charge of every libel consists in the person or matter of and concerning whom or which the words are averred to be said or written. In the King against Alderton the information was held bad, because it was not laid in the information, it was not laid that the libel was of or concerning the justices of Suffolk. Where the words are averred to be written of the king's government where-(there are several precedents)—or of the government of the kingdom, or of the government, suppose, of the navy; as to any thing further as to which they are also written, through the medium of which they calumniate the king's government, there is no form of expression technically necessary. And it cannot be; because there may be cases where the king's government might be calumniated through an imputation upon the gross licentiousness of his troops. The question to be tried is, whether the words laid are written of the king's government. It may vary the degree of mischief, guilt, or malice; but it is totally immaterial as to the constitution of the crime upon the record, whether the words refer to something that has existed, or are an entire fiction. Had Lexington been left out; or had any other place been mentioned, where there had been no skirmishes, or engagement, instead of Lexington; it would without any inuendo have been equally a libel. It is the duty of the jury, to construe plain words and clear allusions to matters of universal notoriety, according to their obvious meaning, and as every body else who reads must understand them. But the defendant may give evidence to shew that, in the case in question, they were used in a different, or in a qualified sense. If · no such evidence is given, the obvious meaning to every man's understanding must be decisive. Before this trial, five several juries had found those words, from their necessary meaning, to be of and concerning the king's government. Here, in this case, the defendant gave evidence: and the evidence he gave demonstrated that the words related to troops acting under the king's authority; and consequently related to the king's government. And I am the more confirmed that upon this occasion there is little colour of doubt of any flaw in the information, that in those five trials that I allude to, in one or other of them, a great variety of counsel of learning, eminence, and ability, were employed. They were called upon to pry with all the sharpness that they had into the information, to pick a hole in it: there were three judg-| ments given upon conviction upon them; and no counsel saw or imagined there was any flaw in it. Therefore we are all satisfied that the information is sufficient. Att. Gen. The defendant has been convicted on the oaths of twelve of his countrymen with having written, printed, and published, and caused to be written, printed, and published, a certain false, wicked, malicious, scandalous, and seditious libel of and concerning the king's government and the employment of his troops; asserting, that the national force of this country has been employed in the murder of the king's subjects, for as meritorious an attribute as can be imputed to man: and he has specified the time and place at which that was done. [ The charge, as contained in the information, rests within a narrow compass. might have stated, perhaps, and proved a different crime to have arisen upon it; but I did state that which, according to my judgment, was a crime of such quality, was a crime of such heinousness, and of such a size, as fairly called for the highest resentment which any court of justice has thought proper to use with respect to crimes of this denomination. My lord, although the crime, upon the state of it in the information, rests within the compass which I have now mentioned; yet, as it now comes before the Court, the matter that now requires the consideration of justice does not lie within that narrow compass. The defendant himself has thought it important to the situation which he wishes to hold with a certain body of men in this country, not to leave it just in the place in which the information does: he has thought it essential to his views (which I don't enter into particularly what they are), but he has thought it essential to his views, to prove how much he meant by writing in that manner to the public; and also to prove how much he meant, and how directly, how pointedly, and how confidently, to insult the public justice of the country, by not only committing as high a crime as could be committed within the description of misdemeanor against the public authority and welfare, but by stating himself to have committed that crime with a view of insulting the public justice of the country. My lord, if it had been essential to us to prove that that crime, and that that case which is specified in the indictment, was the subject of a murder committed under public authority by the na tional forces of the country, he has himself thought proper to state and to prove by his witnesses, that he meant the attack made by the king's troops upon a body of rebels. Your lordship has taken notice of the addition of this affidavit that was introduced into the cause. The effect of that evidence was to prove that which was but too well known before, namely, that in the time there specified, the 19th of April, 1775, the rebels had arrayed themselves in arms; had formed magazines; had taken stations in the country in which they had placed themselves; were ready to surround the forces of the king, as far as their abilities could do it, upon any motion to be made by these forces; that upon the instant, very early in the morning, (and whether accidentally or other wise let that be decided by the witnesses) the king's troops, marching in perfect silencethat, upon the instant of that happening, the first demonstrations that were made upon the part of the rebels was the firing alarm-guns; understood exceedingly well by the witness, and exceedingly well explained by him: it proved that he understood them perfectly, namely, by the rebel troops instantly surrounding them. I state that to have been industriously proved on the part of the defendant, in order to mark that he meant to fly at the very highest subject, and to offend in the most heinous manner in which it was possible for him to contrive to offend. My lord, he did not think it enough to have proved that such was the intention of the paper with which he was at that time charged; but he also thought it incumbent upon him to produce witnesses to prove another part of the contents of that paper; namely, that he had attended a solemn meeting; at which meeting he, with certain other persous there assembled, had contributed money to the amount of about 100l. and that the purpose for which they contributed it, was the comfort and relief of those whose merits with them was stated to consist in no other particular than the circumstance of their relation to those rebels that stood in arms against the king's forces: he brought witnesses to prove the fact. That the money was actually paid, is not the thing that 1 pin upon: let it be doubted whether the 50l. came actually to the hauds of the banker; or that the money was afterwards applied to any of the purposes that are there stated. To be sure, there was not proof alleged upon that subject. Whether it is to go to those people, or whether it is to go to any other purposes similar to those, in the intention of those who subscribed the money (that is, the insulting and affronting government and the king,) it is a matter of very little consequence to the point I am now speaking to. He was at the pains to prove that they went through that business that I am stating to your lordships in order to afford comfort and relief to those who stood in that species of relation to rebels; which, as far as it goes, is to excite that rebellion, by offering that degree of encouragement to those who shall happen to perish in such a flagitious offence: as far as it goes, it amounts to that. The libel therefore that now stands before your lordship, which the occasions of the defendant of a different sort (which 1 shall have occasion to speak more particularly to presently) obliged him to aggravate, obliged him to go to the extent that I have now stated, is such a one that I believe it will be totally impossible for the imagination of any man, however shrewd, to state a libel more scandalous and base in the fact imputed, more malignant and hostile to the country in which the libeller was born, more dangerous in the example, if it were suffered to pass unpunished, than this which I have now stated to your lordship. Your lordships have seen that the libel is such, that it is impossible by any epithets to aggravate it. I depend entirely upon the state which I refer to which your lordship has delivered to the Court.-I depend upon that for the most emphatical description of every circumstance that tends to create criminality, which is possible to be alleged not only against this, but against any other libeller whatsoever.* My lord, such was the nature of the libel. The next question that I meant to trouble your lordship upon, is the conduct of the present defendant in the article of publishing the libel; and, subsequently to that publication, in the article of avowing it, holding it up, maintaining it to the world, thrusting it in the face of justice, and proclaiming- Sic honor et nomen divinis vatibus.' It is a language addressed to the lowest and most miserable mortals. There is no man of any value in point of understanding in this country, that does not know that the information contained in it is false, absurd, impossible, even below the worth of refutation; but it is addressed to the lowest of the mob and to the bulk of the people, who it is fit should be otherwise taught, who it is fit should be otherwise governed in this country. My lord, the occasions of this reverend gentleman to keep up the opinion of a particular part of the factions in this country, his private occasions obliged him to be very distinct, and very anxious to explain it. On the part of the prosecutor, it was enough to prove that he had published the libel. The evidence for the prosecutor went plainly and distinctly to that fact. We produced the original paper under his hand. We produced the man to whom it was * In the Memoirs of John Horne Tooke, interspersed with original documents, by Alexander Stephens, esq. of the honourable society of the Middle Temple,' (vol. 2, pp. 461, 462. 8vo ed. 1813) it is said that " Thurlow, after he had run the race of ambition, courted his [Horne Tooke's] acquaintance in the peaceful shades of retirement." See, also, pp. 259, 260. 326, of the same volume, and in the New Parl. Hist., the debates in the House of Lords on the Bill to remove doubts respecting the eligibility of persons in holy orders to sit in the House of Commous,' stat. 41 Geo. 3, c. 63. delivered, Woodfall, in order to publish it in a paper which he printed himself, called The Public Advertiser. We proceeded to prove that the occasion of delivering it to him, and the office in which he was employed, was not merely to publish it in that paper, but to carry it round to all the other public papers, and to make the dispersion of it as universal as he possibly could. Here therefore we did establish upon him, by these plain facts, a publication of as universal a sort as it was possible for him to obtain. One would have thought that these facts so stated had constituted crime enough. But it is not enough to be criminal, with this man; he must be criminal in a way that may shew himself able to defy justice; in a way to convey to the people, who believe in those foolish representations, that they actually do trample upon justice. I believe a great multitude of those gentlemen called authors, Mr. Woodfall's contractors, are men, in fact, who are just capable of writing in an impudent style. The single, simple merits of an impudent style is, I suppose, qualification enough to prevent any material distinction between his whole rabble of authors. If there is any distinction at all, it must arise from the superior confidence of those who can not only write in that style, but stand forth in the face of the justice of the country, and say--- punish me if you dare.' ---These men lose their credit, these men lose their opportunities with their own faction, if, when called upon for their crimes, they don't preserve the same impudence. That made it necessary for the present defendant not to be satisfied with what the prosecutor had proved upon him, but to undertake a proof of his own; to put him upon still higher ground with his connections. By the examination of Woodfall, he has undertaken to prove that the method of bis transactions with him had been at all times, that be should at all times, for his own sake, if called upon, give him up to justice. A good decent sort of contract, that long way back, between a divine of the church of England and his printer! that he should print for him upon the terms of the said divine being ready to be given up to justice, at all times when he should be called upon! My lord, the first instance of the execution of that contract was upon a polemical subject of divinity, between this gentleman and one of his parishioners, sir John Gibbons. Mr. Woodfall did not state to the Court which part was taken by which: I cannot possibly tell how the controversy ended: but in an extract upon the subject of religion, for the edification of the parish, it was necessary that there should this contract inter vene, that the reverend author should be ready to stand forth, in case the printer was called upon. But with regard to the present publication, this was to be much more emphatical. He had been called upon in another place. He was afraid that he had not been thought by his friends to be confident enough in maintaining what he was charged with; and that, if |