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he escaped, it was upon some doubt, whether may involve crimes of a different nature and the guilt was proved upon him or pot : upon complexion, and of very different degrees of which he called upon this Woodfall to depose, guilt. Concerning those crimes the public that in the manner of delivering him that neither has a right nor can possibly be informpaper, it was done with an industrious and af ed in any other inanner than by the judgment fected solemnity. The words of it were, “ of this court. , My lord, this Court, in prodid I, or did I not, formally hefore the witness, bouncing judgment upon this offence, is to do wben called in, deliver that paper as my act by this species of offence, with regard to the and deed; as if it had been a bood ?"-And in rest of the public, and to the purpose of deterrthe latter end of the evidence, if they now | ing crimes, what the law does when it specifies chuse to take notice of this advertisement”- particular punishments. Your lordships are it was to that purpose; for this reason, that in these cases to supply the deficiencies of the “ in the last transaction before the House of law, and to shew to those who have been deCommons it was pretended they let me off be sirous to offend the laws of their country, by cause they could not get full evidence. Do you the example of its punishment, in what sort of remember I said, that if they now chose to estimation this degree of guilt is held by the take notice of this advertisement, they should | law: and I, whatever I have thought upon the not want full evidence ?"_Now, my lord, to subject, shall be obliged to confess, that if the be sure what had passed between this author punishineot is less than the old deliberate judgand this prinier, (whether it was more or less in ment has gone to and rested upon, that I bave confidence) would have made it of no conse- / been mistaken in the nature of the crime. All quence whatever to the public. It would have my apology for the mistake must consist simbeen impossible for us to have known it; or, if ply in this single circuinstance: that, lying so it had, to bave adduced it in evidence. That near to high treason, it was very difficult for would bave been of no consequence whatever my imagination and judgment to draw the line to the public. It never could have attained to between them. That must be my apology, if the public knowledge, excepting that interest | I have inistaken the pature anıl quality of this
bave so often alluded to, that interest of crime. recommending himself to his patrons, and | My lord, the punishments to be inficted upon defying public justice.
misdemeanors of this sort, have usually been I don't state the offence to bave consisted in of three different kinds ; five, corporal punishthe conversation that was held between himment by imprisonment, and intamy by the and the printer ; hut I state the offence to arise judgment of the pillory. With regard to tbe in his anxiety to proclaim to the public, that time, it is impossible for justice to make this such is ihe manner in which be dares to insult sort of punishment, however the infamy will, the justice of the country. There arises the always tall upon the offevder; because it is well aggravation of the crime, in the manner in known, that men who have more wealth, who which I have stated.
have better and more respectful situatious and With regard to the rest, the strange conduct reputations to be watchful over, employ men in of the defendant-I don't know wbether that desperate situations both of circumstances and is properly before the Court, any inore than his characters, in order to do that which serves misrepresentaljon of the proceedings of the their party purposes; and when the punishCourt; which I shall urge for no earthly pur ment comes to be inflicted, this court must pose but this: in order to demonstrate that have regard to the apparent situation and cirThe aim and object of publishing so very in | cumstances of the man employed, that is, of famous a libel as this, went even beyond the the man convicted, with regard to the punishlibel itself; to endeavour, if he could, to make ment. a paradeful triumph over justice. That, I take With regard to imprisonment, that is a speit, is the aim and object of the whole.
cies of punishment not to be considered alike in I have done my duty with regard to the | all cases, but varies with the person who is to cbarge that is now before the Court. With re- l be the object of it: and so varies with the pergard to the punishment also, it is my province son, that it would be proper for the judgment of and my duty to speak.
thie court to state circumstances wbich will All other crimes of specific denomination make the imprisonment fall lighter or beavier, are followed by the letter of the law with pe as the truth is, upon the person presented to the culiar punishments : and they are held forili, court. I say, my lord, that would be proper, by tbat punislıment and by that denomination, if I had not been spared all trouble upon that to the people in the true point of view in wbich account by bearing it solemnly avowed in it is the interest of the public that they should your lordsbip's presence, by the defendant be seen. The law, by enacting particular himself, that imprisonment was no kind of inpunishment upon specific crimes, has stated to | convenience to bim : for that certain employihe public, that degree of terror to arise from ments, which he did not state, would occasion the example of punishment, which in wisdom, his confinement in so close a way, that it was it is hoped, will be sufficient to restrain of. mere matter of circumstance whether it ba fenders from committing the same crimes. My pened in one place or another; and that the Jord, that is not so in the case of a misdemea | longest imprisonment wbich this court could por; whicb in its variety and consequences | inflict for punishment, was not beyond the reach of accommodatioo wbicb those occasions right upon great, trying, and important occarendered necessary to bim. In this respect, sions. He obtained popularity, because he 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 rigbt upon all occasions. From to tbe offence, but ibe 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 bim, man's paine (may be bis pame may have been sit Jobo 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 puoishment. And greatness of his spirit and character, that it your lordships (according to the usual style was impossible to reach bim : and he has prewith which he has affected to treat justice, served a name wbich was bigbly honoured from the beginning to the end) are told that during his life, and which will live as long as you cannot pupish bim in that way: and the English constitution lives. Citing him, iherefore, 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' Chority for it.* * judgment in that part of the punishment; My lord, in pronouncing an opinion upon operates nothing with respect to bim person- | the objections started by the defendant, I ally; and consequently that it will lose its would desire po better, no more pointed, nor any whole force and efficacy as with respect to that more applicable argument than wbat that great example which the public justice ought to hold chief justice used, when it was contended before out to the world.
him that an abuse upon government, upon the I stated in the third place to your lordsbips, administration of several parts of government, the pillory to have been the usual punishment amounted to nothing, because there was no for this species of offence. I apprehend it to abuse upon any particular man. That great have been so in this case for above two hun- chief justice said, they amounted to much dred years before the time when prosecutions more: they are an abuse upon all men. Go. grew rank in the Star.chamber, and to those rernment cannot exist, if the law cannot redegrees wbich made that court properly to be strain that sort of abuse. Government cappot abolisheil. The punishment of the pillory was exist, unless wben offences of this magoitude, inflicted, not only during the time that such and of this complexion, are presented to a court prosecutions were rank in the Star-chamber, of justice, the full punishment is inflicted but it also continued to be inflicted upon this which the most approved times bave given to sort of crime, and that by the best authority, offences of much less denomination than these, after the time of the abolishing the Star-cham- | of much less. I am sure it cannot be shewn, ber, after the time of the Revolution, and while that in any one of the cases that were punished my lord chief justice Holt sat in this court. So in that manper, the aggravation of any one of locking over precedents for the sake of the those offences were any degree adequate to other question, I observed that Mr. Tutcbip* those wbich are presented to your lordship (an author of some eminence in bis day) was now. Jf offences were so punished then, whicla angry with Holt, the lord chief justice, for are not so punished now, they lose that explatransferring, as he called it, the punishment of nation which the wisdom of those ages thought bakers to authors. That was upon a personal proper to hold out to the public, as a restraint conceit wbich such an author as Tutchin from sucb offences being committed again. It thought himself entitled to entertain of the su- 1 was my duty also to consider this as with a perior dignity of that character all along. He view to the public conviction. thought ihatibe falsifying of weights and mea. I am to judge of crimes in order to the prosures was a more mechanical employment than secution : your lordship is to judge of them the forging of lies; and that it was less gentle. ultimately for punishment. I should have man-like to rob men of tbeir money than of | been extremely sorry, if I had been ipduced by their good pame. But that is a peculiarity any coosideration whatever to have brought a which belongs to the little vanity that inspires / crime of the magnitude wbich this was (of the an author. I trust therefore, when I speak of maguitude which this was when I first stated Jord chief justice Holt, and of the time in which it into a court of justice, if I had not had it in he lived, I speak (for all, but particularly for my contemplation also that it would meet with this) of as great an authority as ever sat in an adequate restraint ; wbich I never thought judgment upon any case whatever. His name would be done without affixing to it the judg was held high during his life, and has been ment of the pillory. I should have been very beld in reverence in all subsequent times. He sorry to have brought this man here, after all deserved popularity, by doing that which was
* Dr. Johnson appears not to have concur* See Tutchin's Case, vol. 14, p. 1099, wbere red in this opinion of Mr. Attorney General. the pillory is stiled the pupishinent of bakers ; | " I hope,” said he, “ they did not put the dog and for more concerniog the pillory, see vol. 3, in the pillory for his libel, he has too much p. 401 ; vol. 7, p. 1209; vol. 14, p. 446 ; literature for that.” Boswell's Life of Johnvol. 19, p. 809.
son, vol. 3, p. 378, 8vo edition,
the aggravations that lie has super-induced | anger at any thing that has passed. The geoupon the offence itself, if I had not been per- tleman on the trial has stripped me of common suaded that those aggravations would have in- sense; but be allowed me a sort of understandduced the judgment of the pillory.* The pu- ing. My lords, he shifted his ground in his nishment, bowever, to be inflicted for this crime reply. He first, out of kindoess and complirests finally with your lordship. If the Court ment to ine, supposed what I had written to be is of opiniou that that judgment is not to be pro- bepeath common sense : my lords, be afternounced, it will be my bumble duty to submit wards found it proper to make it beyond comwith the most perfect acquiescence. I have no mon sense. At first I was a fool: ai last I was interest in the busitiess but as the officer of the a madman. My lords, at first he thought itpublic. I am nothing near so good a judge of (I forget his expression) but he thought it canthe 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 alluded to, though distantly, to suppose that when I am stating a matter to the Court for what I had written was false. To save others judgment, I must state it as I feel it ; and I from some scandal of imprudence or improfeel it so. And if it were my province to do priety, he thought it candour to impute falsemore than to state it so, I should still continue hood to me. My lords, when that was proved to think of it as I do at present.
to be true, he only said, that he did not mend
the matter : indeed, whichever side of the case Mr. Horne. My lords, though your lord- I took, nothing could meud the patter. ships' judgment is to he pronounced upon my. It is not my business, my lord, to take the sell, I shall attend to hear it with tbe indiffer. smallest notice of what fell from your lordence and curiosity of a traveller; which I was ship; nor shall I mentiun a number of things, early instructed to do in such circumstances as which I migbt justly be permitted to mention, these, long before I could imagine I should of wilful and gross misrepresentations of the ever be in them. My lords, I am a little the evidence upon the trial: 'I should not have more at a loss to address your lordships, be inentioned it at all; but Mr. Attorney General cause (and I am not ashamed to be laughed at bas binted, though not specified, misrepresen for my disappointment) I acknowledge that Itations by me of the proceedings of the trial. carve this morning into the court in the full as- My lords, he has endeavoured to alarm me surance, that I should find less difficulty to go with monstrous fines, with long imprisonment, out of it tban I did to come in. My lords, I had with infamous panishment. My lords, infamy. no notiop at all that evidence could supply the is as little acquainted with my name as with defects of the information ; or that it would be that gentleman's or with your lordships. I attempted to be so sapplied by evidence. I feel no apprehensions from the pillory. I do did not, it is true, at the time 1 objected to the feel some little pain that a gentleman, taking deficiencies of the informativn, I did not advantage of my situation, should say aud offer amongst other things add evidence. I believe those things, unfounded in appearances even I am time enough now to move any thing in of Truthi, against me, which neither be nor arrest of judgment; and if I am, I desire that any man like bim dare to insinuate in any your lordships would understand me now to other station but this. object to the supplying of the defects of an in- He bas attempted likewise to insinuate, my formation by any evidence whatever. My lords, a species of robbery. When he did so ford, I apprebend that your lordsbip bad di- he was guilty of falsehood. He said, that my rected Mr. Attorney General and myself (I witness did not prove that the 501, was paid ought, if what he has said of me be any thing into the bankers. My lords, he literally like truth, to beg his pardon for coupling iný proved it. . unworthy name with his) but, my lord, 1 My lords, he represents me as speaking the thought that he and I were directed, if we language of if you dare to punish me;" — could, to produce precedents. I own to your and he says, “ it is a language addressed to the lordship, I did not well understand the direc- lowest of the mob." Indeed I think so too: tion when I received it; because I had laid but it is his own language, not mine. before you a sacred principle, with wbich I My lords, he has dwelt upon my occasions, was much better acquainted than with prece-my desperate situation, my want of character dents; and one for which I would willingly and fortune. My lords, it is ny misfortune give up all the precedents that ever existed. that from my craille I have had as effeminate
My lords, I shall no doubt be very irregular an education and care and course of life as Mr. in the order of what I shall say to your lord - Attorney General. It is my misfortune that ships; and I should not have said a word, if there was not a greater want of fortune : and there were not in Mr. Attorney General's ba- as for my occasions, my means have always rangue some things that might easily stir a been beyond then. I should rather, my lords, man to anger, if he was not as little susceptible if I was speaking in extenuation or to mitigate of it as I am. My lords, I feel not the least your punishment, I should rather close io with
Mr. Attorney General, and acknowledge my* See in the case of Patrick Hurly, vol. 14, self that desperate, belpless wretch that he has p. 446, a counsel insisting that the pillory is the represented me: perhaps it would be the most punishment for a cheat.
effectual motive to your lordships compassion.
My lords, I never in my life solicited a favour: with whom I can think, that I know of. I dever desire to meet with compassion.
There is no body of inen .with whom I am conMy lords, he has talked to your lordships of nected. There is no man or men from whom my patrons. I have bad in my life, and very I expect help, or assistance, or friendship, of early in my life, the greatest of patrons; aye! any kind, beyond that which my principles or with all their power, greater than any that now services may deserve from them individually. hear me. My lords, I renounced my patrons, Private friendships I have, like other men; but because I would not renounce 'my principles; they are very few : however, that is recomrepeatedly, over and over again, of different de pensed to me, for they are very worthy. . scriptious, and in different situations. My My lords, Mr. Attorney Geveral has said, lords, I am proud, because I am insulted; or that i represented imprisonment as no kind of else I certainly should not bave held any of inconvenience to me. As po kind of inconibis language.
venience, my lords, will not certainly be true; My lords, Mr. Attorney General through a ( because the great luxury of my life is a very blameful carelessness bas told you a story of small but a very clean cottage: yet, though a theological, polemical dispute between iny. | imprisonment will be so far inconvenient to me, self and a parishioner. I can easily conceive the cause of it will make it not painful. that lie let himself fall into that mistake for the My lords, I fiad that not only I have a sort sake of drawing a sinile from your lordships of understanding very differeut from that of and the court upon the reverend gentleman. Mr. Attorney General, but my notions of law, But in this, like the rest, my lords, ibere is not and my notions of humanity, are equally difa syllable, oot the smallest foundation of truth. | ferent from his. My lords, between the time I never bad a theological, polemical dispute. ( that I had last the honour of appearing before My lords, I am free to acknowledge, that no 1 you and the present time, it happens very unfortheological disputes that ever I read, and I tunately for Mr. Attorney General that he has bave endeavoured to read all that ever happen- | proved, that not only my potions of law aud ed, none of them ever interested me in the decency, but my notions of propriety and humanner that the present disputes do interest manity, are widely different from bis : and I me. My lords, l' was not made to be a mar mention it, my lords, because it goes immedityr.* I have opinions of my own; but I never ately to the doctrine now attempteil to be esta. intended to suffer for them at the stake. blished. Mr. Attorney General has heard a
My lords, he bas endeavoured to insinuate person, as great as himself, between that time tbat all that I wrote, and all that I said, was and this, justify the legality, the propriety, the for the sake of a paradetul triumph over jus humanity of the tomahawk and the scalping tice: and he has talked again and again of the knife. Between the last time I appeared here mob. My lords, the mob have conferred no and this time, these have been the sorts of king's greater tavours upon me than upon Mr. Attor troops justified, by a high officer of the law,* ney General. I have been repeatedly followed to be employed, as legal, proper, mild, and huby very numerous mobs in order to destroy me, mane. single and alone, for a great length of way; My Jords, Mr. Attorney General has said, not once, or twice, or three times, but four and that I declared upon the trial that I had a cerfive times; two or three thousand at my heels. tain employment which made it necessary for I am sensible of the ridicule of the situation, me to be confined as long as your lordships even whilst I mention it. These are the only should or would confine me. That is not true. favours that I have ever received from the My lords, I did say that I had an employment, mob; these are the only favours that I have had something to do, that would confine me ever solicited ; and I protest to your lordships I to my room longer than your lordships would had much rather hear the mob biss than hal. confine me. I believe I said more- neither loo : for the latter would give me the head-ach, intended when I said it to affront you, nor the first gives me no pain. My lord, I have will attempt at this time to appease you-I heard of those who have expressed more wishes said longer than your lordships dare to confine for popularity than ever I felt, I have heard me; those were the words: and I said it, beit said, and I think it was in this court, that cause I did believe and do still believe that they " would have popularity : but it should your lordships dare not wilfully do injustice. be that popularity which follows, not that My lords, as for that certain employment, I did which is sought after."'t My lords, I am not say it was necessary. It is an employproud enough to despise them both. If popu- , ment of amusement merely; an employment Jarity should offer itself to me, I would speedily / that I meant to make public; but not for the take care to kick it away.
sake of gain or praise. My lords, when first I My lords, as for ambition, and bodies of began my life, I was encouraged to worthy men, and parties, and societies, there is nothing and to virtuous actions by the temptation of of it in the case. There is no body of men, praise: I have long since learned, my lords,
to be able to do those actions which I think * But see his Letter to Junius, July 13, virtuous, in despite of shame.. 1771.
My lords, Mr. Attorney General bas done + See lord Mansfield's judgment in Wilkes's case, vol. 19, p. 1112.
* See New Parl. Hist. vol. 18. VOL. XX.
what I have before heard attempted to be done, upon your own cross-examination of one of the with very great sorrow: he has attempted to witnesses, you gloried in the publication of it; reinstate the Star Chamber. The fault he finds that you avowed you did not desire to be with it is only its rankness," before the pro- screened ; and that you avowed yourself the secutions grew so rank in the Star Chamber, author of it. Since that indeed, in this court, and which rankness caused it to be abolished.” | you attempted to gloss over parts of this libel, -I don't recollect the words of that act by and to confine its tendency to a possible private which it was abolished; but I am sure that its | charge upon the king's troops, and not conrankness alope is not the reason given. If | cerning his majesty's government; to treat the the gentleman would lend me his memory, 1 word troops' as being indeterminate in its signi
would then repeat them - one of the powers, fication, and not carrying with it the construc' nor any like them (your lordships know better tiod which the information avers, and which
the words, I don't recollect the words) but now the jury have found, of its “ concerning the thing like them was ever to be put in use again | king's government and the employment of in that or in any other court, as well as I can those troops by his authority." You have said · remember.
very truly that evidence is not to supply any Mr. Attorney General bas talked of the per- defect in an information. There is no defect sonal conceit of Tutchio concerping authors. in the information : the information sets forth I thought myself, till a strong zeal made me the libel at large; and the information charges act otherwise, as little likely to become an that libel to be “ of and concerning bis maauthor as any of those gentlemen who hear jesty's government,” as I before-mentioned. me. I have never been a contractor with any Upon that the court has now decided agreeably news papers; he knows I have not. If I de- to the findiog of the jury; and no man can sired the printer of the Public Advertiser to really mistake the malicious ineaning and ingive me up always to justice, my lords, I can. sinuation of it. It is a libel which contains a not easily conceive how Mr. Attorney General most audacious insult upon bis majesty's ad. could find any thing to justify bis oratory upon ministration and goveroinent, and the conduct that subject.' Is that a defiance of a court of of his loyal troops employed in America. It justice? Is that flying in the face of the justice treats those disaffected and trailorous persons of the country ? To be willing to abide its sen- who have been in arms and in open rebellion tence; not to withdraw myself from its cen- against bis majesty, as faithful subjects-faithsure: not to wish even to avoid any enquiry ful to the character of Englishmen: and it into my conduct; is that to be that bold-faced falsely and seditiously asserts, that for that audacious man that defies the justice of his reason only they were inbumanly murdered country?. My lords, if it is, I can only again by bis majesty's troops at Lexington and Con. deplore that a gentleman, who must have great cord. By this same libel subscriptions 100 are understanding, and great talents and abilities, proposed and promoted for the families of those from the office wbich he holds, that the under- very rebels who fell in that cause, traitorously standing of that gentleman should be so very fighting against the troops of their lawful sovedifferent from mine.
reign. This is the light in wbich this libel must My lords, I have already appeared in this appear to every man of a sound and impartial situation often enougb; and if I had, as he ima- | understanding ; this is the plain and the unargines I have, any luxury or pleasure in holding tificial sense of it. The contents of this libel myself forth in public; if I had, it would long have been too effectually scattered and disbefore this bave been satisfied. There are persed by your means, as charged in the several many other things wbich I might say to your counts of the information, and they have been lordships ; but as I trust, and fully trust, that inserted in divers and different newspapers. I shall still find a remedy, my lords, against The contents are too well known, and I trust the present decision, I shall forbear saying one abhorred, to need any repetition from me, for syllable in extenuation of what the Attorney the sake of observing farther upon their maGeneral has been pleased to charge me with; lice, sedition, and falsehood. The court bare and leave your lordships to pronounce your considered of the punishment fit to be ioflicted judgment without the least consideration of me, upon you for this offence : and the sentence of without the smallest desire that you should the court is, That you do pay a fine to the abate a hair from what you think necessary king of 2001., that you be imprisoned for the for the justice of my country. I shall leave space of twelve montbs, aad until that fine be it entirely to your lordships' discretion.
paid ; and that upon the determination of your
imprisonment, you do find surelies for your - Mr. Justice Aston. John Horne, clerk, you good behaviour for three years, yourself in stand convicted, upon an information filed 4001. and two sureties in 2001. each. 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 pripted and published, a false, wicked, and sedi- good behaviour for three years. It is that part tious libel, of and concerning bis majesty's go. 1 of the sentence that perbaps 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 entreate the 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