try? Is it the part of a good citizen to treat |
courts of justice in that manner, with respect
to cases cited from their decision in the way in
which those were cited? I mention them only
in the way of observing that: for, to be sure,
it was perfectly impertinent to any question de-
pending before you; and unless it had been
equally so with respect to the cases themselves,
I should not have given you the trouble of a
single word upon that. There was one thing
which fell, which gave me some little astonish-
ment to hear, and which I remember well. I
don't take notes, but I have a pretty general
remembrance of things delivered by me. I
take myself to have stated to you in the outset
the very same doctrine of intention. Why,
who doubts but that the intention constitutes
the criminality of every charge of every deno-
nination and kind? But the extreme ridicule
of the thing is, the talking of that doctrine upon
an occasion like this! See what it is. The
words are, that the American subjects for meri-
torious considerations upon their part, and for
those considerations only, were inhumanly mur-
dered at Lexington and Concord, in the province
of Massachusets Bay. Nobody can doubt in
the world, but that imputing inhuman murder
to the conduct of those troops, is abuse! I sup-
pose he did not mean it as flattery, to extol
them, to deliver them down to posterity (if
such paragraphs as these had any chance of
reaching down to posterity) to deliver them
down to posterity in terms of heroism! He
meant to abuse them: the words themselves
are abuse. Then, I say, where words of direct,
unqualified, indubitable abuse are printed con-
cerning any man alive; that the very circum-
stance of printing calumny concerning a man,
carries along with it an intention to abuse him.
Why it is nonsense to doubt it. One may
spin words till one loses the meaning of a sen-
tence, and the first words that are used in that
sentence; but it is nonsense to deny when you
use direct abuse; when you revile them in
the very attempt to justify the charge; and
again use terms of abuse; that those terms of
abuse don't prove intention of abuse: primá
facie, at least, they will. If a man is called a
rascal, has he any doubt whether the man that
called him so means to abuse him or not? Why
that is playing with words in a most ridiculous
manner. And these are the kind of words that
are now called in question; and a jury are told,
that where a libeller calumniates another with
the imputation of a capital crime, that calumny
carries along with it a proof of his intention to
calumniate. That is the dreadful proposition
which is to prove an intention to overturn all
the liberties of this country! I wish those who
talk about their liberties, would be pleased a
little to have a small regard for the liberties
of others. The man that robs upon the
bighway, while he is unapprehended, is the
freest of all human creatures: but the men
whom he attacks, whom he plunders,
whom he terrifies, these are not free as long
as they are under his dominion and power.

The man that dashes libels about him upon every one he is pleased to call bis enemy, is the freest of all agents; but those that he inflicts deep injury upon, are they free? And is it talking with common sense to say it means the liberty of doing wrong? of attacking personal property, reputation, or what I please, without being controuled? Is that what you call freedom? It is a definition of freedom that I never expected to hear; and which can, I am sure, do no good to any cause upon the side of which it is advanced, before any one gentleman of common sense! That I call no freedom.

With regard to the rest, what can one argue it more? Why, yes, it seems one may; because if you will scan the construction of these words well, they will not amount to a libel. Not amount to a libel! it seemed to me a very hardy proposition when it was first of all stated, that calling a number of men murderers was not a libel. No, says he, It is not a libel. Observe, I called it under-writ, it is writ beyond common sense, instead of below it, which was the first apprehension I had of the thing. For, he says, non constat that there were any persons of that description! non constat that there were any widows, orphans, or parents!-non constat that there were any beloved American fellow-subjects-and I believe more about that last than any thing else; for I do not believe that our love to our American fellow-subjects was that ruling principle that governed this publication." Who, faithful to the character of Englishmen,"—(that may be true, for aught I know)" preferring death to slavery, were, for that reason only, inhumanly murdered by the king's troops." Non constat whether there were or were not any king's troops! It happens unluckily in the last part of the sentence, it is asserted that there were: for the sentence runs-" who, faithful to the character of Englishmen, preferring death to slavery, were, for that reason only, inhumanly murdered by the king's troops :" so that if assertion was necessary, there is an assertion for you. But, however, how can any body trifle so much with his own understanding, or with the understandings of others, as to suppose that, if it had been without an assertion, suppose it had been a question,-why did the king's troops murder our American fellow-subjects?-why would not that convey a libel just as much? Åre there any necessary forms of words that compose a libel? I think it fair to say, that that was given up. It was used more to shew the skill of the adversary than to the merits of the question.

But, it seems, that a soldier may commit murder: aye, to be sure, so may any, other man alive. There is no question at all about that; but if any man is supposed to have commited murder, he ought to be tried. If any man is charged with having committed murder (otherwise than in a legal course) he is calumniated; he is libelled and that is all that I have to contend before you. But it is a little doubted, whether this relates to the employ ment of the king's troops! I must admit that

I that doubt was started a little before the explanation of one of the witnesses came: and I suppose, if that had been in the contemplation of the learned gentleman when he spoke, he would not have raised that as a matter of doubt; because, as it stands now, it seems a very plain proposition (both upon the evidence and the reason of the thing) that it was so applied, and meant to be so applied. Then he informs you, that I have used a number of words, and be gave you a list of them.-I wondered to find the words that I had used in a written speech, brought in so many volumes into the court to be used again here. But, it seems, this is a collection of all the words I ever used in my life; and he sits down in his chamber (the place he is most used to sit in) collecting all these words, and then comes here with a criticism upon them. Now I have not the least inclination to derogate from that learned gentleman's talents as a critic: and if the food of such poor language as mine will serve the gentleman to employ himself upon, he is quite at liberty to do it upon this or any other occasion, whenever he thinks proper to employ himself quite so innocently. The words, in substance, I will maintain. I really did not believe that the gentleman who had written that paragraph, would have undertaken to defend it just in the way in which he has done to-day. I thought that, instead of quibbling upon the force of it, that he would have advanced a great deal more boldly to it than heference to me whether I prosecute the printer did; at least in the outset of the speech to-day: and, in the latter part of his speech, he so far justified what I foretold in my own mind upon the subject, that, I think, he has proved to a demonstration (if that were an essential part of the case) that his true reason for writing that, was to defy the laws of the country; for so I stated it. I stated it that there was no affectation of discussing any subject; that there was no pretence or colour even of reasoning upon any subject; under the mask of which many others have thought proper to cloak themselves, when they wish to write malignantly. But there was not even an affectation of that; but a blunt way of bolting out so much calumny, without qualifying it in any way in the world, or making it appear any thing more than that which I stated it to be; -an attempt to defy justice.-Either prosecute this, or never prosecute again as long as you live, is the true language of this advertise

ment.

What is the rest of his defence? It consists in abusing me; the judge; the jury; the Crown-office; the law as it now stands; the counsel that appeared for the printers who were convicted of the same crime before, because they did not do enough and act to his mind; and the solicitor of the Treasury! That is the nature of the defence made in this cause! 1 have chosen to separate it from the case, and yet I believe I shall be forgiven if I say a few words upon the rest of the subject. The learned gentleman thinks proper to state to VOL. XX.

you that this is a prosecution of two years old; because the offence was committed on the 9th of June 1775, and because you are now trying it in July 1777. Now if he could have made any thing of the observation, it would have been just as handsome to himself (it is nothing to me, for I despise all those things) it would have been as handsome to himself, if he had thought proper to state the facts precisely as they were. This information was filed in Michaelmas term 1776; and it was pot my fault, but his fault, that it was not brought on to trial in the Hilary term following. But still there is between the 9th of June 1775 and Michaelmas 1776, some time, though not two years; a year and something more. Then he complains that I thought proper to file my information against the printers first, although I might have applied to those printers in order to have obtained evidence against him. In the first place, I have made it a rule to myself not to apply to any printers, in any other way than by charging them for their delinquency, and bringing them before a jury to be tried. That is the application that I make, and always will make to the printer of, a libel. In the second place, if I had thought proper to apply, as he calls it, to the printer, I might have had a fictitious conversation put upon me, in order to prove that I had practised with them to get Mr. Horne delivered up. Now in the third place, it is a matter of perfect indifor the author. And I will tell you why. My notion with regard to authors are, that most of them are generated by printers; at least more authors are produced by printers than printers by authors; and if the press was never to go tiil the good sense of some author set it to work, it would prevent a great deal of the groaning of the press upon publications and subjects much too frivolous to be regretted if they were lost; and I believe authors have grown more from the press, than the press has growu from authorship. If I stop the publication of libels, I think I do an essential good to the country. I know if they are printed and published ostensibly, where to apply to stop them: but I never did, nor ever will stop them by applying to the printers. He has explained, by examining the printers themselves, that no such application was made to them. I cannot state exactly upon memory the time when I commenced this prosecution. I sup pose it must have been about the time when the others were tried. If so, the consequence is, that the Michaelmas term following, in consequence of that application, was the very first time that I could file an information at all. I was told when the printers were tried here, Why do not you resort to Mr. Horne ?-You are afraid of Mr. Horne. To be sure, there was some reason. If I had known that I should have been obliged to hear so much eloquence! especially to have the trouble of replying to it; it would have been a prospect I should not have liked. But I believe, I should

3 C

do not believe that there exists in this world a man of more inflexible integrity than sir James Burrow. I never heard him charged in my life with any thing like opprobrium. I know perfectly well that if I were to apply to sir James Burrow, in order to get any particular manner of striking a jury, either in London or Middlesex, that he would set himself, for the whole evening after, to contrive how he could best cross the purpose of that application. I know he would, I know him very well, I am sure he is a very bonest man; and I am sure I should fare exceedingly ill, if I was to attempt to make any such application. None such is suggested. But it is said, that the solicitor of the Treasury desired sir James to take this part; to take two special jurymen out of every leaf; giving this reason for it, because the books might be made up; and that if it was once known to be the practice of sir James to begin in the middle, or the end, or any part, they might be made

have waded through all that prospect, if I had been ever so much apprized of it before. And when Mr. Horne was disclosed to be the author, I certainly should have prosecuted him. But before he made that disclosure, what I said is true; that he defied the laws of his country under the screen of the printers. And he has proved himself that he was not to be disclosed without a prosecution. He gave no authority to the printers to go to the solicitor of the Treasury, and make a disclosure of him: or, if he did, they made no such disclosure. And yet this manner of delaying the cause is one of the grounds upon which he has thought proper to treat me just in the manner in which be did. Now I would beg you a little to recollect how that part of the conversation arose, when the learned gentleman spoke without book; when he spoke at first, and had not his words so well measured as the well-timed labour of his closet enables him to measure his words upon paper: he certainly took the free-up by the address of the officer, so as to get dom of charging me of using all means, right or wrong, foul or fair, in order to get a conviction.

a particular set of men for a jury. I will take it as said by the gentleman: the solicitor proposed that there might be taken two out of Well, what is the next article of his ha- every leaf, which would produce the fairest rangue? I am reproached for having boasted collection of the jury in the broadest manner, of the integrity of my character, because I de- and out of the greatest number and variety of nied the truth of a false and impertinent charge; names and people. So far I think nothing because it is neither true nor pertinent, that unfair in the solicitor's application: and I do ever I had employed myself in the way in not know, I protest to God, at this very mo which I am so represented to have employed ment, what earthly reason sir James Burrow myself. And what is the boast upon that? It could have to refuse that, except the one which is a very bigh one; for I called upon him to I strongly suspect him of, namely, that onename his instances. That was my boast! and that it was desired by the solicitor for the innocence, when it is able to call upon its re- crown-for if he apprehended that it would viler to name his instances, does make a proud give the slightest ground for suspicion by takand magnificent boast. So far I boasted. Well, ing any one article of conduct whatever, he is when called upon, what are the instances? very nice, I know, and very obstinate; and I The first is, that I prosecute before a special am sure, nothing would bind him more surely jury. That in a prosecution which I (the ser- to refuse to take a jury in that, which appears vant of the public) think proper (for reasons of to me to be the most impartial way; stronger public weight and importance) to produce, I and quicker than an application on the part of wish to have men of the first character, of the the solicitor of the Treasury. That is not all; first situation, men of the highest and most ap- but the sheriffs of London are abused: the juproved honour, my judges! that is the first ar- rors are named merchants, who are not so! ticle in which the opprobrium is to be justified Why, do I make up that book? Is that one of of my using all means, foul or fair, in order to my crimes? The sheriffs of London make it obtain a conviction! In this he has all the ad- up. When it is returned to the Crown-office, vantage that an accuser can possibly have: I the names are taken out of it, in the most imConfess the whole charge. It is my desire to partial manner; and the whole state of that, have all my actions so tried; it is my desire, instead of loading me or any one concerned and I will, whenever I can, obtain a tribunal of with the slightest calumny, is the fullest acthat sort; which (from the great dexterity quittal that could be had! It does not thereand wisdom of eloquence) is looked upon to before relate to any one concerned in this prosethe best topic (before them) to condemn me for resorting to! This is another matter he would have been totally deprived of, if he had submitted, as those poor printers did, to be defended by counsel. They would never have thought of abusing the Attorney General (before a special jury) only because he thought proper to lay his cause before that jury! It is a singular way to take those topics which go beyond the ability or practice of any counsel whatever! Then the next attack is upon the poor master of the Crown-office, sir James Burrow. I

cution. Then I am wrong in another thing; for under all bad administrations, there is nothing so rife as prosecutions for libels! I should be glad to know in the abstract (without referring to those documents, so many of which the learned gentleman produced himself) in the eight years I have had the honour of being Attorney-General, how many prosecutions for libels have been brought? I wish that was stated, in order to shew the monstrous number of prosecutions for libels! They are not so many as I could wish; for if you compare the pro

secutions with the daily publications, that man that looks at those publications, and sees how rife and rank the scandal is upon all orders and denominations of men, upon all branches of the government and the state, as well as private men; whoever sees that must look at them with a very peculiar eye, if he does not see that the increase of the scandal is a great deal more than the increase of the prosecution for that scandal! and yet this is one of the topics also for which I have been abused! It is said also that I am corrupt in another respect, because I condescend to consider myself as the servant of the whole public, and so liable to receive orders from every branch of the legislature. The arguments that one hears used upon these occasions, they are made only for the moment. I should not be astonished if from the same quarter I had heard it was one of the most monarchical sentiments in the world, to insist that there is any public officer who was not under the orders of either House of Parliament. I always took it to be the assuming of those that call themselves Whigs (for want of a better nickname) what I hold-that in a free state the representatives of the people assembled in parliament are a sovereign member of that state; and that every public officer, great or small, is amenable to them. But how amenable to them? I wish that had been a little more stated. Amenable to them to do wrong? No man ought to be amenable to the greatest and the proudest body of men whatever to do wrong. I have not been so amenable for in those instances in which I have thought it would be wrong to prosecute, I have stated it to the House, and the House has forborne the prosecution upon my representation. That has been the conduct which I have held upon the occasion; and a conduct which, if I am questioned for it (in any place where it would be pertinent), I should be very glad to render an account of that conduct. But, says the gentleman (with a strain peculiar to himself), will you submit to be sworn in order to be examined by me ?-To what? Yes, Sir; to any one fact which can be alleged in your defence, I will submit to be sworn to the truth of it. But will you submit to be sworn in order to undergo impertinent questions about the motives and steps of your conduct from time to time, such as I shall think proper to put to you?

Gentlemen, I put myself upon your good sense! I put myself (for the question was not meant for you) I put myself upon the candour and the good sense of the audience, that I was impertinently treated in the proposal; and that I should have been ridiculous to have submitted to that proposal! I spoke to some persons about it (whose authority I am not permitted to cite to you) who concurred in opinion with me: but I am sure, and I put it to the mind of every gentleman, whether I did not act right in that matter. To have refused him justice would have been a hard and improper measure; I did not refuse that. To refuse to answer im

pertinent questions, I did refuse it; and I ap-
peal to the candour and good sense of this au-
dience that I did right to refuse it; and it would
have been ridiculous to have done otherwise.

These are the topics which, as far as I can
recollect, have been produced against me,
With regard to the rest, the gentleman informs
you, that the law as it stands is full of a great
variety of hardships. I don't know that system
of law under heaven which may not be per-
verted to purposes of hardship. I don't know
any thing so perfectly ridiculous as to argue
from the possibility of the corruption of a good
thing to its worthlessness. In order to make
any thing of that, he should have gone the
length not only of stating what might have
been done, but what was done; otherwise you
may sit and hear that glorious constitution
(which I have known so many able and elo-
quent writers and speakers extol in the highest
terms to the skies) you may sit and hear it re-
viled from one end to the other: not for the
mischief that it actually does; not for the ine-
quality in point of justice that it actually ad-
ministers; but which it might! But let him
prove that there is any thing in my conduct of
this prosecution that deserves those epithets
with which he charged it, and I must submit
to be covered with them. But that will not
make an iota of difference in your verdict.
What does it signify to you (who sit to con-
sider whether this be a true or a false charge)
that it comes at this time or at any other? The
gentleman taxes me with folly in saying, that
if it were a crime in 1775, it must be so in
1777! I should hold it to be the utmost folly
to say otherwise. If there were any improper
practices with regard to the prosecution, it
might be a reason of objection to those who
prosecute; but with regard to the mere ques
tion to be put to the jury-is he guilty in man-
ner and form?-it is absolutely nothing; it
would be folly to assert it.
the progress

I have now stated to you
of
this business, referring to his own witnesses
for the truth of that progress; and I trust,
that upon that representation, 1 shall not be
found to have misconducted myself even in the
course of this prosecution. I have gone very
much out of my way, and very contrary to the
turn of my temper, when I have embarked so
far in a defence of myself at all; but when
facts are stated, I thought it necessary to re-
state and explain these facts. Beyond that, let
general and loose reflections take what place
they please. I put myself upon my public
conduct for my justification, without boasting
of that conduct either one way or the other.
If I am wrong in that conduct, let it condemn
me: if I am right in that conduct, let it ap-
prove me. It is upon that only that I desire
to rest it; without boasting or without dis-
claiming, either on one side or the other. I
will say no more upon that subject, but refer
it to you to determine what ought to be done
upon a charge thus stated, and thus industri-
ously proved upon the part of the defendant, if

1

any proof had been wanting to support it upon servations might have before; yet now, upon the part of the prosecutor.

Lord Mansfield. Gentlemen of the jury, if ever there was a question, the true merits of which lay in a very narrow compass, it is the present. This is an information against the defendant for writing and composing, and printing and publishing, or causing to be printed and published, that is, for being the author and publisher of a paper, which the information charges as a seditious libel. If it be a seditions Jibel in its own nature, there is no justification attempted: why then there are but two points for you to satisfy yourselves in, in order to the forming of your verdict.

Did he compose and publish; that is, was he the author and publisher of it? Upon this occasion, that is entirely out of the case; for it is admitted. As to the excuse of ignorance, or being imposed upon (which is a topic in the case of printers and others) it is out of this case, because it is avowed to be done deliberately; and it is now avowed, and the contents of it. Why then there remains nothing more but that which reading the paper must enable you to form a judgment upon, superior to all the arguments in the world; and that is,

his evidence, you see how it stands! The unhappy resistance to the legislative authority of this kingdom by many of our fellow-subjects in America, is too calamitous an event not to be impressed upon all your minds; all the steps leading to it are of the most universal notoriety. The legislature of this kingdom have avowed that the Americans rebelled, because they wanted to shake off the sovereignty of this kingdom; they profess only to bring them back to be subjects, and to quell rebellion : troops are employed, money is expended upon this ground; that the case is here, between a just government and rebellious subjects; for a just and a good purpose, for the benefit of the whole. If I don't mistake, the first hostilities that are committed-(though many steps on both sides leading to them existed before)but, if I do not mistake, the first hostilities are those committed upon the 19th of April, 1775. If some soldiers, without authority, bad got in a drunken fray, and murder had ensued, and that this paper could relate to that, it would be quite a different thing from the charge in the information; because it is charged as a seditious libel, tending to disquiet the minds of the people. Now what evidence has Mr. Gould Is the sense of this paper that arraignment given? Why, he says, that he was sent with of the government, and the employment of the a part of the king's troops, by the orders of troops, upon the occasion of Lexington men- general Gage, the governor of the province, tioned in that paper? Read! You will form the commander of the king's troops; that when the conclusion yourselves. What is it? Why they began their march (which was about two it is this: that our beloved American fellow- or three in the morning) he heard (1 think he subjects (therefore innocent men)-in rebel- says he heard) a continual firing of alarm canlion against the state. They are our fellow- non, which is a signal, at certain distances, subjects; but not so absolutely beloved with- used in America to raise the country; and that out exception! Beloved to many purposes: be- they heard as soon as they began their march; loved to be reclaimed: beloved to be forgiven: and from thence they concluded that the probeloved to have good done to them: but not vincials were marching to attack them. When beloved so as to be abetted in their rebellion!- they came within sight of them, they found and therefore that certainly conveys an idea them armed, in bodies of troops armed. This that they are innocent. But farther it says, was not a stated time of peace when the king's that they were inhumanly murdered at Lex- troops, under the authority of the governor, go ington by the king's troops, merely on account from one part to another; to have bodies of of their acting like Englishmen, and preferring men, in military array, armed, and signals liberty to slavery! The information charges fired! but this they found. And be says, he the libel to relate to the king's government and cannot tell himself; but to a question asked the employment of his troops. Read it, and him, he says, he heard the provincials charged see whether it does relate to them. If it does, our troops. He says in his affidavit, which what is the employment they are ordered upon? he has likewise sworn to, and which you may what is the employment that they execute? compare, that he saw, on their arrival, he saw To murder, the paper says, innocent subjects; a body of provincial troops armed, to the numbecause they act like Englishmen, and prefer ber of about 60 or 70 men: " on our arrival liberty to slavery! Why then, what are they they dispersed, and soon after firing began; who gave the orders? what are they who exe- but which party fired first I cannot exactly cute them? Draw the conclusion. It don't say." And then, towards the latter part of the stand upon argument. If any man dares to affidavit, he says, "the provincial troops regive orders to murder a subject, or to execute turned, to the number of about three or four those orders, or to make any subject a slave, hundred. We drew up on the Concord side of he is as high a criminal as can exist in this the bridge. The provincials came down upon state. Evidence has been examined, and (though us; upon which we engaged, and gave them unusual) I was very desirous every thing of the first fire." And says he, "this was the fered should be heard; and you have had Mr. first engagement after the one at Lexington. Gould examined: and whatever doubt there A continued firing from both parties lasted the might be with regard to the occasion of hosti- whole day. I myself was wounded at the atlities at Lexington; whatever weight the obtack of the bridge, and am now treated with