sentences plainly understood, and I know not the nature of this suretyship. Lord Mansfield. It is a common addition. Mr. Horne. And, it may be, a common bardship. satisfaction, was an employment by his majes ty, or by any person in authority under him. It was equally consistent with a supposition, that the troops in the instance complained of employed themselves in acting without, or even contrary to the orders of those to whose orders they ought to have conformed. Nor did it follow, that because the advertisement was found to have been written concerning bis macon-jesty's government, that it therefore necessarily imported an intention to arraign that govern Mr. Just. Aston. Not to repeat offences of this sort. Mr. Horne. Of this sort? Lord Mansfield. Any misdemeanour. Mr Just. Aston. Whatever shall be strued bad behaviour. Mr. Horne. If your lordships would imprisonment. Armies are properly considered as among me for these three years, I should be safer; because I can't foresee, but that the most meritorious action of my life may be construed to be of the same nature. Lord Mansfield. You must be tried by a jury, by your country, and be convicted. You know it is a most constant addition. You know that yourself very well.-Where are the tipstaves? To reverse this judgment, Mr. Horne brought a writ of error in parliament, and on his behalf it was argued by Mr. Lee and Mr. Dunning, that it is a principle in the law of England, that, in criminal prosecutions, the information or indictment must contain in itself a certain and explicit charge of the offence intended to be imputed to the defendant, and no defect of certainty in the charge can be helped or supplied by any proof, and still less by presumption or intendment, either in the jury who give the verdict, or in the court which pronounces judgment upon it. It is equally true, that all penal charges ought to be taken most favourably for the subject, in every stage of the prosecution; so that if it appears doubtful whether the fact alleged in the information or indictment be necessarily criminal, or may possibly be innocent, the prosecution shall fail; and though the jury find a general verdict, such verdict ought not to be construed by the court to find any thing beyond the plain and certain allegations in the indictment or information. In this case the jury had found that the king's troops, mentioned in the advertisement, meant bis majesty's troops;' for this, and the publication by the defendant, were facts charged, and therefore might be properly said to have been found. If it should be admitted, which was not found, that the troops meant his majesty's army in America, there was nothing in the information that extended the imputation on those troops to his majesty or his ministers, unless it was in the introductory words, which had been resorted to as charging the advertisement to be written, of and concerning his majesty's government, and the employment of his troops. If the jury were to be understood to have found it to be so written, (though from the company that passage kept with the words false, wicked, malicious, scandalous, seditious,' it might more properly be considered as a matter of inference than of charge,) it would not of necessity follow, that the employment of the troops with which Mr, Horne expressed his dis no the instruments of government, and are properly employed, whenever they are so employed in the defence of a just government. Whoever writes therefore concerning his majesty's armies, may be said to write concerning his majesty's government. But the suposed libel carried no imputation against his majesty, or his government; unless it should be understood to mean, that the misbehaviour which it was supposed to impute to the troops was in an instance wherein they were acting in due obedience to legal orders, under an authority derived from his majesty; but this was where charged, and consequently not found. In order to have supported the information in the manner in which probably the prosecutor wished to have it understood, he ought to have shewn by proper averments, that there was at the time a rebellion existing in America; that the troops were sent thither to suppress it; that they were in the act of exerting themselves, in obedience to proper orders, towards this object; and that though the loss of lives was among the consequences of that exertion, it was no murder, nor in any sense a violation of law, but, on the contrary, perfectly justified by the occasion. Why averments to this effect were not to be found in the record, it was not difficult to conjecture, to those at least who understand that averments must be proved; and it might not be thought certain that a jury would be found who would assent to the truth of these propositions. It would be no answer to say that all this was notorious; or that at the trial it was proved; for if it were so, which was by no means admitted, it was perfectly immaterial, if the principle be, as it was conceived to be, that the judges are to receive or use no other knowledge of the facts essential to constitute a criminal charge, but what they collect from the record. On the other side it was contended by the Attorney General Thurlow and Solicitor General Wedderburn, that the crime of a libel consists in opprobrious words or signs, written, made, exhibited, or published, concerning some person, or other subject, which it is criminal so to revile. The accusation must therefore state the opprobrious words or signs, and they must be applied to the person or thing supposed to be reviled: but no technical form of words is necessary for that purpose. If the natural and apparent sense of the words themselves be opprobrious, and require no other medium to fix such meaning upon them, no The question is, Whether the writing described in the information is sufficiently 'charged to make it a libel upon his majesty's government ?' By the words sufficiently charged' I understand to be meant, Whether it is charged with sufficient certainty ?* But, though the law requires certainty, we have no precise idea of the signification of the word; which is as indefinite in itself, as any word that can he used. Lord Coke, speaking of it, represents it thus [Co. Litt. 330, a. & 5 Co. 121]: There are three kinds of certainties: certainty to a 'certain intent in general; certainty to a common intent; and certainty to a certain intent in every particular.' This last is rejected in all cases, as partaking of too much subtlety. The second is sufficient in defence: the first is required in a charge or accusation. Perhaps this account of it does not convey a much clearer idea; but I apprehend it will become intelligible, by considering the grounds of the distinctions, taken in the present case, upon the certainty required in a charge. innuendo or averment to support it can be ne. cessary to raise an apparent meaning. If the application of such opprobrious words be expressly made in the phrase of the libel, no innuendo, or averment to support it, can be wanting to raise an express application. It is a well known rule, that judges are to understand a libel as others do, without straining to find a loop-hole to palliate the offence, which in some measure would be to encourage scandal. It would be a ridiculous absurdity to say, that a writing, understood by the meanest capacity, cannot possibly be understood by a judge and jury; therefore judges will not resort to every possible construction, only to avoid the natural one; much less give a different sense to the words, by supposing circumstances which, if they exist, should be proved. The words complained of conveyed, in their natural and apparent meaning, a gross reflection, the imputation of an heinous and hateful crime, upon the employment of the national force, and consequent ly upon his majesty's government, of which the employment of that force is an important 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 crime it is which he is called upon to anrises. The literal meaning of the words was confirmed by the context, and it was impossible to believe that any English reader had put another interpretation upon them, much less had any such reader mistaken them to mean flocks or companies of strollers, &c. as the objection idly supposed. The application of these opprobrious words to the king's government, and the employment of his troops, not only appeared in the phrase of the libel itself, but was expressly charged in the information, and proved even by the defendant's witnesses, and found by the jury; that matter therefore was also concluded. The averments suggested in the defendant's argument were by no means necessary to constitute a state of this crime; for supposing there had been no rebellion, or troops employed to suppress it, or engagement by the king's troops, or slaughter made of the rebels, the guilt of this calumny would not have been diminished by its total want of foundation or colour of truth. After hearing counsel on this writ of error, the following Question was put to the Judges; "Whether the writing contained in the infor. mation is, in point of law, sufficiently charged to be a libel upon his majesty's government?"— (Brown's Cases in Parliament, vol. 4, p. 379.) And, on Monday, May 11, 1778, Lord Chief-Justice De Grey delivered the unanimous opinion of all the judges in the affirmative, and gave the reasons as follow: My lords, I have conferred with the Lord Chief Baron, and the rest of my brethren the judges, upon the question which your lordships have propounded to us; and I am deputed to deliver their opinion to your lordships upon it. swer; that the jury may appear to be warranted in their conclusion of guilty' or 'not guilty' upon the premises delivered to them; and that the Court may see such a definite crime, that they may apply the punishment which the law prescribes. This, I take to be what is meant by the different degrees of certainty mentioned in the books: and it consists of two parts; the matter to be charged, and the manner of charging it. As to the matter to be charged, whatever circumstances are necessary to constitute the crime imputed, must be set out; and all beyond are surplusage. And therefore, in the instance of the prosecution for perjury which has been cited, it was necessary to set out the oath, as an oath taken in a judicial proceeding, and before proper persons, in order to see, whether it was an oath which the Court bad jurisdiction to administer. In the prosecution of a constable for not serving the office [5 Mod. 96], it is necessary to set out the mode of his election; because, if he is not legally elected, he office. Where the circumstances go to concannot be guilty of a crime in not serving the stitute a crime they must be set out: where the crime is a crime independently of such circontribute to make the offence. cumstances, they may aggravate, but do not To apply these principles to the case of a libel: it may happen, that a writing may be so expressed, and in such clear and unambiguous words, as that it may amount of itself to a libel. In such a case, the Court wants no circumstances to make it clearer than it is of itself: and therefore, all foreign circumstances intro Respecting certainty, see the "End T ósvra Advertisement, part 2, ch. 6, and a Note to Eunomus, Dialogue 2, p. 46. duced upon the record would be only matter of supererogation. But, if the terms of the writing are general, or ironical, or spoken by way of allusion or reference; although every man who reads such a writing, may put the same construction upon it, it is by understanding something not expressed in direct words; and it being a matter of crime, and the party liable to be punished for it, there wants something It ought to receive a judicial sense, whether the application is just: and the fact, or the nature of the fact, on which that depends, is to be determined by a jury. But a jury cannot take cognizance of it, unless it appears upon the record;' which it cannot do without an averment. more. Thus much is sufficient to be said, in regard to the matter that is necessary to be averred. Secondly, as to the manner of making the averment: there are cases, where a direct and positive averment is necessary to be made in specific terms; as, where the law has affixed and appropriated technical terms to describe a crime; as in murder, burglary, and others. It is likewise true, that in all cases, those facts which are descriptive of the crime, must be introduced upon the record by averments, in In the opposition to argument and inference. case of a libel which does not in itself contain And I conceive, that this kind of extrinsic matter may be introduced upon the record, either by direct averment, or by recitals, or by general inference; and that such introductory matters and explanatory innuendoes so made to appear upon the record do all amount to sufficient averments. An innuendo is an averment, that such a one, means such a particular person; or, that such a thing, means such a particular thing: and when coupled with the introductory matter, it is an averment of the whole connected proposition, by which the cognizance of the charge will be submitted to the jury, and the crime appear to the Court. The libel in the present case says, 'That the 'subscription proposed to be entered into was 'for the relief of the widows, orphans, and aged parents of our beloved American subjects, who, faithful to the character of Englishmen, ' and preferring death to slavery, were for that reason only inhumanly murdered by the 'king's troops.' It is not necessary to consider, whether this libel comes within the description of a libel, which constitutes a crime of itself, without any assistance of other circumstances; or what our opinions upon that question might be; because, we are all of opinion, that there is sufficient matter expressed with sufficient certainty to constitute the crime. But, two questions have been made upon the introductory part of the information: First, Whether, the interior subsequent matter being introduced by the words of and concerning his majesty's government, and the employment of his troops,' these words amount to a sufficient averment to put it legally upon the record? And secondly, Whether, admitting it to be legally put upon the record, the sense of it must be understood to be a libel upon his majesty's government ? And first, Whether it is legally put upon the record in point of form?—It is put upon the record by these words:- That the de'fendant wrote and published such a libel, of ' and concerning his majesty's government and 'the employment of his troops.' This is an averment; for the fact is, that he wrote and published the libel;' and the circumstance connected with the fact, and which therefore makes a part of it, is, that he wrote and published the paper or libel, of and concerning his majesty's government and the employ'ment of his troops.' If the jury, upon the defence set up, had found, that the libel was not published relative to the king's government, or the employment of his troops, the information was not proved: for it contains an entire proposition. And if it had appeared, that the paper related to a voluntary act of the troops only, and not to an employment of them by government, the information would be false: because the prosecutor would have failed in the proof of the proposition, that it was written, of and concerning the king's government and 'the employment of his troops.' This is no new doctrine: the cases cited at the bar shew it. In Tutchin's case,* one part of the libel was this: The mismanagements ' of the navy, have been a greater tax upon the merchants, than the duties raised by government.' It might have been said there, What navy? Whose navy? was it the navy of *See it in this Collection, vol. 14, p. 1095. 6 From these cases it is clear, that the words 'ment.' 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 and concerning the jusfendant had written a scandalous and seditious 'tices of Suffolk.' But when the information libel; in which 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 navy of this kingdom and the government of an order of the justices of peace for the county the said 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 navy,' by an innuendo, it explains it ductory part, of its being written of and conthus: meaning 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 sense and the charge complete.—Again, in ano- the information having 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 judganother plot against you:' and afterwards, ment was accordingly arrested. it is a plot preparatory to your trial.' What trial? The introductory part of the informa-of and concerning' are a sufficient introduction charged, that this libel was written, of tion of the new matter. And therefore in the and concerning the defendant, and a prosecu- present case, it is, in point 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 explains you' thus; meaning 'the defendant.' This, connected with the avermeut in the introductory part, was a sufficient explanation of the charge. The defendant was found guilty of the several libels in the information. He moved in arrest of judgment; but not upon the ground of the insufficiency of the averments: for it was sufficiently understood, that of and concerning the royal navy, &c.' was good with out any other additional averments. In the case of Rex v. Matthews, which was an indictment upon stat. 6 Ann. c. 7, the words of the libel were these; From the solemnity of 'the Chevalier's birth, and if hereditary right 'be any recommendation, he has that to plead in his favour.' It was there said, What Chevalier? Who is he? What recommendation? And to what thing?-In the introductory part, the information charged the libel to have been written, of and concerning the Pretender,' and of and concerning his right to the crown of Great Britain.' And it was held, that the innuendoes in the body of the libel, explaining the words Chevalier, &c.' to mean the Pretender and his hereditary right to the crown of Great Britain, when connected with the averments in the introductory part, of its being written, of and concerning the Pretender and 'his right to the crown of Great Britain,' were a sufficient explanation to make good the charge. ་ But secondly, it has been argued upon the further charge respecting the troops, that it does not import that these troops were so employed by act of government. And therefore, though it should be held to have been written, of and concerning the king's government,' yet it does not appear to be so, relative to the act of the troops.' It has been further argued, that in giving their opinion upon this point, The judges can take no knowledge of any thing that is said or written, but what they can collect from the record;' and likewise, That every accusation taken from the record must be plain and clear, and is not to be strained by any forced meaning or construc'tion.' But, as the crime of a libel consists in conveying and impressing injurious reflections upon the minds of the subject; if the writing is so understood, by all who read it, the injury is done by the publication of these injurious reflections, before the matter comes to the jury and to the Court. And if courts of justice were bound by law to study for any one possible or supposable case or sense, in which the words used might be innocent, such a singularity of understanding might screen an offender from punishment, but it could not recal the words, or remedy the injury. It would be strange to say, and more so to give out as the law of the land, that a man may be allowed to defame in one sense, and to defend himself by another. Such a doctrine would indeed be pregnant with the nimia subtilitas,' which my lord Coke so In the case of Rex versus Alderton, [Sayer's Reports, 280], the libel was an advertisement, reciting certain orders made for col-justly reprobates. lecting money on account of the distemper amongst the horned cattle, advertised by the clerk of the peace for the county of Suffolk; and it charged, that by these orders the money collected had been improperly applied. The information charged this to be a libel on the justices of Suffolk. In the body of the libel, it was not said, by order of the justices,' nor did ་ * See it in this Collection, vol. 15, p. 1323. The true rule to go by, is laid down by my lord King in the case of Rex versus Matthews, which is this: That the court and jury must ' understand the record as the rest of mankind do.' This being the rule, and the accusation such as I have before stated, it remains to be seen only what the words in the present case are. They are these: That the defendant, of and 'concerning the king's government and the 6 ing, in support of his argument, relied on the authority of Mr. Justice Blackstone's Commentaries, it appears that lord Ellenborough mixed with general expressions of praise others extremely depreciatory of that work. “He would say that at the time of writing his Com employment of his troops,' said, that inno'cent subjects had been inhumanly murdered by the king's troops, only for preferring death to slavery. Do these words import in their natural and obvious sense, that the king's troops were employed by the act of government, inhumanly to murder the king's innocent sub-mentaries, judge Blackstone was extremely jects? There can be no doubt but that the king's government comprehends all the executive power of the state, both civil and military; that he employs all the national force, and that his troops are the instruments with which part of the executive government is to be carried on. The introductory part of this information charges, that the subject of the writing in the present case was, The troops, ⚫ and the king's troops, and the business they 'bad done.' ་ ignorant of criminal law."—" Blackstone when he compiled his lectures was comparatively an ignorant man, he was merely a fellow of All Souls College, moderately skilled in the law. His true and solid knowledge was acquired afterwards; he grew learned as he proceeded with his work."" There were many things in Blackstone's work which, as a lawyer, he was bound to say were mis-statements, among them was the proposition to which the noble lord had referred." Lord Erskine, however, the Commentaries; powerfully vindicated It has been truly said, that the king's troops The work shewed the author's deep remay, like other men, act as individuals: but they can be employed as troops by the act of searches into all the principles of our legal government only. If the averment therefore constitution, and as informations 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 which were open to him, that their true nature was to be traced; from 'ing the king's government;' the natural import of them, without any forced or strained his 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, 'that the objects of them, were properly such were for that reason only inhumanly murdered 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 which a moment's delay might be fatal; in such cases, aggravate the inhumanity of the act, and consequently, 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 those who are faithful and innocent. As to any other circumstances not stated in the information; if those which are stated, do of themselves constitute an offence, the rest supposed by the defendant, whether true or false, would have been only matter of aggravation, and not any ingredient essential to the constitution of the crime, and therefore not necessary to be averred by the record. Upon the whole of the case therefore, we are unanimously of opinion, that the record contains all facts and circumstances necessary to warrant the conclusion of the jury. And ⚫ that it likewise contains all facts and circum'stances necessary for the information of the Court to give their judgment upon the occa'sion.' Whereupon it was ordered and adjudged, That the judgment, given in the court of King'sbench for the king, be affirmed, and the record remitted, &c.-(Cowper's Reports, p. 682.) In the course of the debate July 17, 1812, respecting lord Holland's bills relative to informations ex officio, (see New Parl. Deb. vol. 23, p. 887, 1069, et seq.) lord Holland hav He entirely agreed with bis noble and learned friend that this was not quite a correct view of the use of informations in our own times, nor even when the Commentaries were written; but to arraign the work on that account, would be trying it not by the principles of the law, but by the very abuse complained of." Indeed, whatever be the authority of Mr. Justice Blackstone's opinions at the time of his death, to that authority, and not merely to the weight of his opinions when he compiled his lectures, are his Commentaries as he left them entitled. Nine editions of Blackstone's Commentaries were published in bis life-time, and it appears from Hargrave's Jurisconsult Exercitations, vol. 1, p. 381, that the tenth edition, though published after Blackstone's death, had been corrected by him. Not unconnected with the law of libel upon which Mr. Horne said so much in this case, is the dictum of lord Ellenborough in the case of Dubost v. Beresford, (2 Campbell's Nisi Prius Rep. 511,) being an action for destroying a picture, which was publicly exhibited, but which it appeared was highly defamatory of a gentleman and his wife who was the defendant's sister. Lord Ellenborough, C. J. B. R. said " If it was a libel upon the persons introduced into it, the 1 |
