1 he escaped, it was upon some doubt, whether may involve crimes of a different nature and the guilt was proved upon him or not: 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 pro did I, or did I not, formally hefore the witness,nouncing judgment upon this offence, is to do when 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 bond ?"-Aud 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 waut full evidence ?"-Now, my lord, to subject, shall be obliged to confess, that if the be sure what had passed between this author punishment is less than the old deliberate judgand this printer, (whether it was more or less in ment has gone to and rested upon, that I have 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 circumstance: that, lying so it had, to have adduced it in evidence. That near to high treason, it was very difficult for would have 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 mistaken the nature and quality of this have so often alluded to, that interest of crime. recommending himself to his patrons, and defying public justice.. I don't state the offence to have consisted in the conversation that was held between him and the printer; but I state the offence to arise in his anxiety to proclaim to the public, that such is the manner in which be dares to insult the justice of the country. There arises the aggravation of the crime, in the manner in which I have stated. With regard to the rest, the strange conduct of the defendant-I don't know whether that is properly before the Court, any more than his misrepresentation of the proceedings of the Court; which I shall urge for no earthly purpose but this in order to demonstrate that the aim and object of publishing so very infamous a libel as this, went even beyond the libel itself; to endeavour, if he could, to make a paradeful triumph over justice. That, I take it, is the aim and object of the whole. I have done my duty with regard to the charge that is now before the Court. With regard to the punishment also, it is my province and my duty to speak. All other crimes of specific denomination are followed by the letter of the law with peculiar punishments: and they are held forth, by that punishment and by that denomination, to the people in the true point of view in which it is the interest of the public that they should be seen. The law, by enacting particular punishment upon specific crimes, has stated to the public, that degree of terror to arise from the example of punishment, which in wisdom, it is hoped, will be sufficient to restrain of fenders from committing the same crimes. My Jord, that is not so in the case of a misdemeanor; which in its variety and consequences My lord, the punishments to be inflicted upon misdemeanors of this sort, have usually been of three different kinds; fine, corporal punishment by imprisonment, and infamy by the judgment of the pillory. With regard to the fine, it is impossible for justice to make this sort of punishment, however the infamy will, always fall upon the offender; because it is well known, that men who have more wealth, who have better and more respectful situations and reputations to be watchful over, employ men in desperate situations both of circumstances and characters, in order to do that which serves their party purposes: and when the punishment comes to be inflicted, this court must have regard to the apparent situation and circumstances of the man employed, that is, of the man convicted, with regard to the punish ment. With regard to imprisonment, that is a species of punishment not to be considered alike in all cases, but varies with the person who is to be the object of it: and so varies with the person, that it would be proper for the judgment of the court to state circumstances which will make the imprisonment fall lighter or heavier, as the truth is, upon the person presented to the court. I say, my lord, that would be proper, if I had not been spared all trouble upon that account by hearing it solemnly avowed in your lordship's presence, by the defendant himself, that imprisonment was no kind of inconvenience to him: for that certain employments, which he did not state, would occasion his confinement in so close a way, that it was mere matter of circumstance whether it happened in one place or another; and that the longest imprisonment which this court could inflict for punishment, was not beyond the reach of accommodation which those occasions rendered necessary to him. In this respect, therefore, imprisonment is not only as with respect to the person not an adequate punishment to the offence, but the public are told, and told by a pamphlet which bears the reverend gentleman's name (may be his name may have been forged to it; but by a pamphlet that bears that name) that it will be no punishment. And your lordships (according to the usual style with which he has affected to treat justice, from the beginning to the end) are told that you cannot punish him in that way and therefore, if that is a species of punishment which cannot affect him, as your lordship has been before told in a manner to be relied upon, he has made it manifest that your lordships' 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 out to the world. : 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 hundred 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 locking 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 lord 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. 3, P. 401; vol. 7, p. 1209; vol. 14, p. 446; vol. 19, p. 809. right upon great, trying, and important occasions. He obtained popularity, because he despised all other means of aiming at it, but that of doing right upon all occasions. From the temper of those times, from the vehemence and designs of that faction that opposed him, sit John Holt would have been reviled; if the revilers of that day had not observed in the greatness of his spirit and character, that it was impossible to reach him and he has preserved a name which was highly honoured during his life, and which will live as long as the English constitution lives. Citing him, therefore, in support of this as a proper punishment to be inflicted upon this sort of offence, is giving, in my apprehension, the greatest authority for it.* 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 chief justice said, they amounted to much 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 a view to the public conviction. 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 Johnson, vol. 3, p. 378, 8vo edition, the aggravations that he has super-induced upon the offence itself, if I had not been persuaded 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 came 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 I 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 lord, I apprehend that your lordship had directed Mr. Attorney General and myself (I ought, if what he has said of me be any thing Jike truth, to beg his 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 barangue 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. anger at any thing that has passed. The gentleman on the trial has stripped me of common sense; but he allowed me a sort of understanding. My lords, he shifted his ground in his reply. He first, out of kindness and compli ment 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 canalluded 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 bim 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." Indeed 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 my 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 myself that desperate, helpless wretch that he has represented me: perhaps it would be the most effectual motive to your lordships' compassion. My lords, I never in my life solicited a favour: 1 never desire to meet with 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 be 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. I 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 justice 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 biss 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. 66 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, * But see his Letter to Junius, July 13, 1771. + See lord Mansfield's judgment in Wilkes's case, vol. 19, p. 1112. VOL. XX. 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 I 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 aud 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 contine me to my room longer than your lordships would confine me. 1 believe I said more- 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 has done * See New Parl. Hist. vol. 18. SE 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 proBecutions 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, 1 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 perЯonal 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. Mr. Justice Aston. John Horne, clerk, you stand convicted, upon an information filed against you by his majesty's attorney-general, of writing and publishing, and causing to be printed and published, a false, wicked, and seditious libel, of and concerning his majesty's government and the employment of his troops. The libel has been openly read in court from the record; and, upon the report of his lordship who tried this information, it appears that, 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 Con cord. 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 dispersed 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 2001., 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. Horne, My lord, I am not at all aware of what is meant by finding sureties for the good behaviour for three years. It is that part of the sentence that perhaps I shall find most difficulty to comply with, because I don't understand it. If I am not irregular in entreating your lordship to explain it to me:-your lordships, I suppose, would chuse to have your |