Sivut kuvina

sentences plainly understood, and I know not satisfaction, was an employment by bis majes. the nature of this suretyship.

ty, or by any person in authority under bim. Lord Mansfield. It is a common addition. It was equally consistent with a supposition,

Mr. Horne. And, it may be, a common that the troops in the instance complained of hardship.

employed themselves in acting witbour, or even Mr. Just. Aston. Not to repeat offences of contrary to the orders of those lo whose orders this sort

they ought to have conformed. Nor did it Mr. Horne. Of this sort ?

follow, that because the advertisement was Lord Mansfield. Any misdemeanour.

found to bave been written concerning bis maMr Just, ciston. Wbatever shall be con- jesty's goveroment, that it therefore necessarily strued bad behaviour.

imported an intention to arraigo that governMr. Horne. If your lordships would imprison ment. Armies are properly considered as among me for these three years, I should be safer; be- the instruments of government, and are procause I can't foresee, but that the most meritori- | perly employed, whenever they are so employ. ous action of my life may be construed to be of ed in the delence of a just government. Wbo. the same pature.

ever writes therefore concerning bis majesty's : Lord Mansfield. You must be tried by a armies, may be said to write concerning his jury, by your country, and be convicted. You majesty's government. But the suposed libel know it is a most constant addition. You carried no imputation against his majesty, or know that yourself very well. Wbere are the his government; unless it should be undertipstaves ?

stood to mean, that the misbehaviour wbich it

was supposed to impute to the troops was in an To reverse this judgment, Mr. Horne ( instance wherein they were acting in due obebrought a writ of error in parliament, and on dience to legal orders, under an authority debis behalf it was argued by Mr. Lee and Mr. | rived from bis majesty ; but this was no Dunping, that it is a principle in the law of | where charged, and consequently not found. England, that, in criminal prosecutions, the in- In order to have supported the information in formation or indictment must contaio in itself the manner in wbicb probably the prosecutor a certain and explicit charge of the offence in. wished to have it understood, he ought to bave tended to be imputed to the defendant, and no shewn by proper averments, that there was at defect of certainty in the charge can be helped the time a rebellion existing in America ; tbat or supplied by any proof, and still less by pre. the troops were sent thither to suppress it ; that sumption or intendment, either in the jury they were in the act of exerting themselves, who give the verilict, or in the court which pro. in obedience to proper orders, towards this obnounces juilgment upon it. It is equally true, ject; and that though the loss of lives was that all penal charges ought to be iaken most among the consequences of that exertion, it was favourably for the subject, in every stage of no murder, nor in any sepse a violation of law, the prosecution; so that if it appears doubtful but, on the contrary, perfectly justified by the whether the fact alleged in the information or occasion. Wby averments to this effect were indictment be necessarily criminal, or may not to be found in the record, it was not difficult possibly be innocent, the prosecution shall fail ; | to conjecture, to those at least who understand and though the jury find a general verdict, such that averments must be proved ; and it might verdict ought not to be construed by the court not be tbought certain that a jury would be to find any thing beyond the plain and certain found who would assent to the truth of these allegations in the indictment or information. In propositions. It would be no answer to say this case the jury had found that the king's" that all tbis was notorious; or that at the trial troops, mentioned in the advertisement, meant it was proved; for if it were sn, which was

bis majesty's troops;' for this, and the pub. by no means admitted, it was perfectly immalication by the defendant, were facts charged, terial, if the principle be, as it was conceived to and therefore might be properly said to have be, that the judges are to receive or use no been found. If it should be admitted, which other knowledge of the facts essential to conwas not found, that the troops meant his ma- stitute.a criminal charge, but what they collect jesty's army in America, there was nothing in from the record. the information tbat extended the imputation On the other side it was contended by the on those troops to his majesty or his ministers, Attorney General Thurlow and Solicitor Gene. uoless it was in the introductory words, which ral Wedderburn, that the crime of a libel conhad been resorted to as cbarging the advertise- sists in opprobrious words or signs, written, ment to be written, of and concerning his ma made, exbibited, or publisbed, concerning some jesty's government, and the employmeot of his person, or other subject, which it is criminal troops.' If the jury were to be understood to SO 10 revile. The accusation must therefore have found it to be so written, (though from state the opprobrious words or signs, and the company that passage kept with the words they must be applied to the person or thing

false, wicked, malicious, scandalous, seditious,' supposed to be reviled: but no technical form it might more properly be considered as a mat- of words is necessary for that purpose. If the ter of inference than of charge,) it would not of natural and apparent sense of the words tbempecessity follow, that the employment of tbe selves be opprobrious, and require no other troops with which Mr. Horne expressed his dis- medium to fix such meaning upon them, no innuendo or averment to support it can be ne! The question is, · Whether the writing decessary to raise an apparent meaning. If the scribed in the information is sufficiently application of such opprobrious words be ex- charged to make it a libel upon bis inajesty's pressly made in tbe phrase of the libel, no in- ' government ? nuendo, or averment to support it, can be want. By the words ' sufficiently charged' I un. ing to raise an express application. It is a well derstand to be meant, Whether it is charged known rule, that judges are to understand a with sufficient certainty ?* But, thoogb the libel as others do, without straining to find a law requires certainty, we have no precise idea Joop-hole to palliate the offence, which in of the signification of the word; which is as some measure would be to encourage scandal. indefinite in itself, as any word that can he It would be a ridiculous absordity to say, that used. Lord Coke, speaking of it, represents it à writing, understood by the meanest capacity, thus [Co. Litt. 330, a. & 5 Co. 121): There cannot possibly be understood by a judge and are three kinds of certainties: certainty to a jury; therefore judges will vot resort to every certain intent in general; certainty to a compossible construction, only to avoid the natural mon intent; and certainty to a certain intent one; much less give a different sense to the in every particular.' This last is rejected in words, by supposing circumstances which, if all cases, as partaking of too much subtlety. they exist, should be proved. The words com- | Tbe second is sufficient in defence: the first is plained of conveyed, in their natural and appa- required in a charge or accusation. rent meaniog, a gross reflection, the imputation | Perhaps ibis account of it does not convey a of an heinous and hateful crime, upon ibe em much clearer idea ; but I apprehend it will ployment of the national force, and consegnent. | become intelligible, by consideriog the grounds ly upon his majesty's goveroment, of which of the distinctions, taken in the present case, the employment of that force is an important upon the certainty required in a charge. part. These words, the king's troops,' in a The charge must contain such a description common and obvious sense, mean that national of the crime, that the defendant may know force which the law takes notice of and autho. what cripe it is wbich he is called upon to anrises. The literal meaning of the words was swer; that the jury may appear to be warconfirmed by the context, and it was impossible ranted in their conclusion of guilty' or not to believe that any English reader had put ano guilty' upon the premises delivered to them; ther interpretation upon them, much less had and that the Court may see such a definite any such reader mistaken them to mean flocks crime, that they may apply the punishment or companies of strollers, &c. as the objection which the law prescribes. idiy supposed. The application of these op- This, I take to be what is meant by the dif. probrious words to the king's government, and ferent degrees of certainty mentioned in the thie en ployment of his troops, not only appear | books: and it consists of two parts; the matter ed in the pbrase of tbe libel itself, but was ex to be charged, and the manner of charging it. pressly charged in the information, and proved As to the matter to be charged, whatever even by the defendant's witnesses, and found circumstances are necessary to constitute the by the jury; that matter therefore was also con crime imputed, must be set out; and all be. cluded. The averments suggested in the yond are surplusage. And tberefore, in the defepdant's argument were by no means ne- instance of the prosecution for perjury which cessary to constitute .a state of this crime; for has been cited, it was necessary to set out the supposing there had been no rebellion, or troops oath, as an oath taken in a judicial proceeding, employed to suppress it, or engagement by the and before proper persons, in order to see, wheking's troops, or slaughter made of the rebels, 1 tber it was an oath which ibe Court bad juris. the guilt of this calumny would not have been diction to administer. In the prosecution of a diminished by its total want of foundation or constable for pot serving the oftice [5 Mod. 96), colour of truth.

it is necessary to set out the mode of his elec. After hearing counsel on this writ of error,

tion ; because, if he is not legally elected, he the following Question was put to the Judges;

cannot be guilty of a crime in not serving the " Whether the writing contained in the infor.

office. Where the circumstances go to conmation is, in point of law, sufficiently charged

stitute a crime they must be set out: where to be a libel upon his majesty's government?"

the crime is a crime independently of such cir(Brown's Cases in Parliament, vol. 4, p. 37).)

cumstances, they may aggravate, but do not

contribute to make the offence. And, on Monday, May 11, 1778,

To apply these principles to the case of a

libel : it may happen, that a writing may be so Lord Chief Justice De Grey delivered the expressed, and in such clear and unambiguous unanimous opinion of all the judges in the words, as ibat it may amount of itself to a libel. affirmative, and gave the reasons as follow: In such a case, the Court wants no circum

My lords, I bave conferred with the Lord stances to make it clearer than it is of itself : Chief Baron, and the rest of my brethren the and therefore, all foreign circumstances introjudges, upon the question which your lordships have propounded to us; and I ain de- * Respecting certainty, see the "End UTI. puted to deliver their opinion to your lordships tésrta Advertisement, part 2, ch. 6, and a Note upon it.

to Eunomus, Dialogue 4, p. 46.

duced upon the record would be only matter of means such a particular person; or, that such supererogation. But, if the terms of the writ- a thing, means such a particular thing: and ing are general, or ironical, or speken by way when coupled with the introductory matter, it of allusion or reference; although every man is an averment of the whole connected propowho reads such a writing, may pot the same sition, by which the cognizance of the charge construction upon it, it is by understanding will be submitted to the jury, and the crime something not expressed in direct words ; 'and appear to the Court. it being a matter of crime, and the party liable The libel in the present case says, “That the to be punished for it, there wants something subscription proposed to be entered into was more.' Il ought to receive a judicial sense, for the relief of the widows, orphans, and aged whether the application is just : and the fact, parents of our beloved American subjects. or the nature of the fact, on wbich that de who, faithful to the character of Englishmen, pends, is to be determined hy a jury. But a ' and preferring death to slavery, were for tbat jury cannot take cognizance of it, unless it ap reason only inhumanly murdered by the pears. upon the record;' which it cannot do • king's troops. It is not necessary to conwithout an averipent.

sider, whether this libel comes within the deThus much is sufficient to be said, in regard scription of a libel, which constitutes a crime to the gratter that is necessary to be averred. of itself, without any assistance of other cir

Secondly, as to the inander of making the cumstances; or wbat our opinions upon that averment: there are cases, where a direct and question might be; because, we are all of opipositive averment is necessary to be made in nion, that there is sufficient matter expressed specific terms; as, where the law bas affixed with sufficient certainty to constitute the crime." and appropriated technical terms to describe a Bat, two questions have been made upon the crime; as in murder, burglary, and others. | introductory part of the information : First, It is likewise true, that in all cases, those facts Whether, the interior subsequent matter being which are descriptive of the crime, must be introduced by the words of and concerning. introduced upon the record by averments, in • bis majesty's government, and the employ. opposition to argument and inference. To the ment of bis troops,' these words amount to a case of a libel which does not in itself contain sufficient averment to put it legally upon the the crime, without some extrinsic aid, it is record ? And secondly, Whether, admitting it necessary that it should be put upon the record, to be legally put upon the record, the sepse of by way of introduction, if it is new matter; or it must be understood to be a libel upon bis by way of innuendo, if it is only matter of ex majesty's government ? planation. For an innuendu means nothing And first, Whether it is legally put upon more than the words, id est,'scilicet,' or the record in point of form?'- It is put upon • meaning,' or aforesaid,' as explanatory of the record by these words :- That the dea subject matter sufficiently expressed before; fendant wrote and published such a libel, of ás, such a ope, meaning the defendant, or such and concerning his majesty's government and a subject, meaning the subject in question, the employment of his troops.' This is an But as an innuendo is only used as a word of averment; for the fact is, that he wrote and explanation, it cannot extend the sense of the published the libel ;' and the circumstance expressions in the libel beyond their own 'mean- connected with the fact, and which therefore ing, unless something is put upon the record makes a part of it, is, that be wrote and pub- . for it to explain. As in an action upon the case Jished the paper or libel, of and concerning against a man for saying of another, · He has his majesty's government and the employ. • burnt my barn,' [4 Co. Barbam's case, the ment of bis troops. If the jury, upon the plaintiff cannot there, by way of innuendo, say, I defence set up, had found, that the libel was meaning his barn full of corn ;' because, that not published relative to the king's government, is not an explanation of what was said before, or the employment of his troops, ihe informabut an addition to it. But if in the introduction tion was not proved: for it contains an entire it bad been averred, that the defendant had a proposition. And if it had appeared, that the barn full of corn, and that in a discourse about paper related to a voluntary act of the troops the barn, the defendant had spoken the words only, and not to an employment of them by

in the libel of the plaintiff'; an in. | government, the information would be false : nuendo of its being the barn full of corn would because the prosecutor would have failed in the have been good: for by coupling the innuendo , proof of the proposition, that it was written, in the libel with the introductory averment, 1- of and concerning the king's government and

his barn full of corn, it would bave made it the employment of his troops.' coinplete.

This is no new doctrine: the cases cited at And I conceive, that this kind of extrinsic | the bar shew it. In Tutcbio's case,* one part matter may be introduced upon the record, of the libel was this : • The mismanagements either by direct averment, or by recitals, or by 1 of the navy, have been a greater tax upon general inference; and that such iotroductory the merchants, than the duties raised by gomatters and explanatory-innuendoes so made verpment. It might have been said there, to appear upon the record do all amouct to | What navy? Whose pavy? was it the navy of sufficient averments." "An indueodo is an averment, that such a one, * See it in this Collectioo, vol. 14, p. 1095.

England, or did it mean only the merchant | the information in the introductory part say, ships? The information charged, that the de- that it was a libel • of apd concerning the jusfendant had written a scandalous and seditious tices of Suffolk.' But when the information libel; in wbich the information stated in the came to state any of the orders in the adverintroductory part, of and concerning the royal | tisement, it added this innuendo, meaning • nary of this kingdom and the government of an order of the justices of peace for the county • the saill navy, it is written so and so.' When of Suffolk.' But these innuendoes could not the information came, in stating the libel, to the supply the want of an averment in the introword 'nary,' by an innuendo, it explains it | ductory part, of its being written of and conthus : 'nxeaning the royal navy of this king- | cerning the justices; because they were not dom ;' which, being coupled with the aver- explanatory of, but in addition to, the former ment in the introductory part of it, made the matter; and the Court were of opinion, that sepse and the charge complete.- Agaio, in ano- the information baving omitted the words, of ther part of the same information for another and concerning the justices' in the introduclibel, one part of the libel was thus: “There is tory part, such omission was fatal: and judg. another plot against you:',' and afterwards, ment was accordingly arrested.

it is a plot preparatory to your trial.' What From these cases it is clear, that the words trial? The introductory part of the informa- l'of and concerniog' are a sufficient introduction cbarged, that this libel was written, • of tion of the new matter. And therefore in the 6 and concerning tbe defendant, and a prosecu- present case, it is, in poiot of form, a sufficient . tion to be had against him for divers seditious averment upon the record, that the paper was

libels by him, before that time, composed and written of and concerning the king's govern: published. The information afterwards ex- ' ment.' plains you' thus; meaping the defendant.' But secondly, it has been argued upon the This, connected with the avermeut in the intro- further charge respecting the troops, that it ductory part, was a sufficient explanation of the does not import that these troops were so emcharge. The defendant was found guilty of ployed by act of government. "And therefore, the several libels in the information. He moved though it should be held to have been written, in arrest of judgment; but not upon the ground of and concerning the king's government, of the insufficiency of the averments: for it yet it does not appear to be so, relative to the was sufficiently understood, that of and con- act of the troops.' It has been further argued,

cerning the royal navy, &c.' was good with that in giving their opinion upon this point, out any otber additional averments. In the 'The judges can take no knowledge of any case of Rex v. Matthews,* which was an in- thing that is said or written, but what they dictment upon stat. 6 Ann. c. 7, the words of 'can collect from the record ;' and likewise, the libel were these; · From the solemnity of Tbat every accusation taken from the record 'the Chevalier's birth, and if hereditary right ' must be plain and clear, and is not to be · be any recommendation, he has that to plead strained by any forced meaning or construc

in his favour.' It was there said, What Chestion. But, as the crime of a libel consists in valier ? Who is he? What recommendation ? conveying and impressing injurious reflectious And to what thing? - In the introductory part, upon the minds at the subject; if the writing the information charged the libel to have been is so understood, by all who read it, the injury written, of and concerning the Pretender,' is done by the publication of these injurious reand of and concerning his right to the crown | flections, before the matter comes to the jury

of Great Britain.' And it was beld, that the and to the Court. And if courts of justice were innuendoes in the body of the libel, explaining bound by law to study for any one possible the words · Chevalier, &c.' to mean the Pre- or supposable case or sense, in which the words tender and his bereditary right to the crown of used might be innocent, such a singularity of Great Britain, when connected with the aver- understanding might screen an offender from ments in the introductory part, of its being punishment, but it could not recal the words, written, of and concerning ihe Pretender and or remedy the injury. It would be strange to • bis right to the crowd of Great Britain,' were say, and more so to give out as the law of the a sufficient explanation to make good the land, that a man may be allowed to defame in charge.

one sense, and to defend himself by anotber. In the case of Rex versus Alderton, Saver's Such a doctrine would indeed be pregnant with Reports, 280], the libel was an advertise. the nimia subtilitas,' which my lord Coke so ment, reciting certain orders made for col. I justly reprobates. Jecting money on account of the distemper The true rule to go by, is laid down by my amongst the horned cattle, advertised by the lord King in the case of Rex dersus Matthews, clerk of the peace for the county of Suffolk ; which is this: "That the court and jury must and it charged, that by these orders the money understand the record as the rest of mankind collected had been improperly applied. The do. information charged this to be a libel on the This being the rule, and the accusation such justices of Suffolk. In the body of the libel, it as I have before stated, it remaius to be seen was not said, by order of the justices,' nor did only wbat the words in the present case are.

- They are these: That the defendant, of and * See it in this Collection, vol. 15, p. 1323. concerning the king's government and the

• employment of his troops,' said, that inno- | ing, in support of his argument, relied on the • cent subjects had been inbumanly murdered | authority of Mr. Justice Blackstone's Com* by the king's troops, only for preferring death mentaries, it appears that lord Ellenborough • to slavery.' Do ihese words import in their mixed with general expressions of praise others natural and obvious sense, ibat the king's troops extremely depreciatory of that work. " He were employed by the act of government, in- / wonld say that at the time of writing bis Com· humanly to murder the king's innocent sub mentaries, judge Blackstone was extremely

jects ?-There can be no doubt but that the | igoorant of criminal law."'4" Blackstone when king's governmeut comprehends all the exe he compiled his lectures was comparatively an cutive power of the state, both civil and mili ignorant man, he was merely a fellow of All 'tary; ibat be employs all the national force, Souls College, moderately skilled in the law. and that bis troops are the instruments with His true and solid knowledge was acquired

art of the executive government is to afterwards; he grew learned as he proceeded be carried on. The introductory part of this with his work."-" There were many things information charges, that the subject of the in Blackstone's work which, as a lawyer, lie writing in the present case was, The troops, was bound to say were mis-statements, among • and the king's troops, and the business they them was the proposition to which the noble • had done.'

lord had referred. Lord Erskine, however, It has been truly said, that the king's troops powerfully vindicated the Commentaries; may, like other men, act as individuals: but is The work sbewed the author's deep rethey can be employed as troops by the act of searches into all the principles of our legal government only. If the averinent therefore constitution, and as inforinations er officio were amounts to this, that, in the discourse which part of the ancient law, it was from history and was held, the words were said of and concern- | writers of authority wbich were opeu to bim, sing the king's government;' the patural jm.) that their true nature was to be traced; from port of them, without any forced or strained is not having attended the courts, he might meaning, appears to us to be this; I am speak not know the modern practice, but he knew the ing of the king's administration of his govern. grounds upon which such informations bad

ment relative to his troops, and I say, 'that our been first adopted and finally retained, when · • fellow subjects, faithful to the character of their expediency came to be considered ; and

• Englishmen, and preferring death to slavery he appeared to him to be correct, when he said, ' were for that reason only inbumanly mur- ' that the objects of them, were properly such

dered by the king's order; or the orders of enormous misdemeanors as tended to endanger his officers.' The motive imputed tends to or disturb the government, and in wbich a moaggravate the inhumanity of the act, and con- ment's delay might be fatal; in such cases, sequently, of the imputation itself: because it the law had given to the crown the power of arraigns the government of a breach of public an immediate prosecution without waiting for trust, in employing the means of the defence any previous application to any other tribunal.' of the subject in the destruction of the lives of - He entirely agreed with bis noble and learnthose who are faithful and innocent.

ed friend that this was not quite a correct view As to any other circumstances not stated in of the use of informations in our own times, the information ; if those which are stated, do nor even when the Commentaries were writof themselves constitute an offence, the rest ten; but to arraign the work on that account, supposed by the defendant, whether true or would be trying it not by the principles of the false, would have been only matter of aggrava- | law, but by the very abuse complained of". tion, and not any ingredient essential to the Indeed, whatever be the auihority of Mr. eonstitution of the crime, and therefore not ne- | Justice Blackstone's opinions at the time of his cessary to be averred by the record.

death, tu that authority, and not merely to the Upon the whole of the case therefore, we are weight of bis opinions when he compiled his unanimously of opinion, that the record con- | lectures, are his Commentaries as he left them tains all facts and circumstances necessary entitled. Nine editions of Blackstone's Com. to warrant the conclusion of the jury. And mentaries were published in bis life-lime, and • that it likewise contains all facts and circum- 1 it appears from Hargrave's Jurisconsult Ex .stances necessary for the information of the ercitations, vol. 1, p. 381, that the tenth edition, .. Court to give their judgment upon the occa. though published after Blackstone's death, bad • sion.'

been corrected by him. Whereupon it was ordered and adjudged,

Not unconnected with the law of libel upon That the judgment, given in the court of King's- |

which Mr. Horne said so much in this case, is bench for the king, be affirmed, and the record

the dictum of lord Ellenborough in the case of remjtted, &c.—('Cowper's Reports, p. 682.)

Dubost o. Beresford, (2 Campbell's Nisi Prius
Rep. 511,) being an action for destroying a pic-

ture, which was publicly exbibited, but which In the course of the debate July 17, 1812, it appeared was higbly defamatory of a gentle respecting lord Holland's bills relative to ina mau and bis wife who was the defendant's sister. formations ex officio, (see New Parl. Deb. vol. | Lord Ellenborough, C.J. B. R. said “ If it was 83, p. 887, 1069, et seq.) lord Holland hav. a libel upon the persoas introduced into it, the

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