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scandalous, malicious, and seditious matters of ous example of all others in the like case of. and concerning bis majesty's goverument, and fending, and also against the peace of our said the employment of his troops, according to the present sovereign lord the kiug, bis crown and tenor and effect following ; that is to say, dignity: and the said attorney-general of our King's Arms Tavern, Cornhill, June 7. At a said lord the king for our said lord the king special meeting this day of several members further gives the Court here to understand and of the Constitutional Society, during an ad- be informed, that the said John Horne being journment, a gentleman proposed that a sub- such person as aforesaid, and again unlawfully, * scription should be immediately entered into wickedly, and seditiously intending, devising, * (by such of the members present who might and contriving as aforesaid, afterwards, to wit, • approve the purpose) for raisiog the sum of, on the 15th day of July, in the 15th year afore• 1001. to be applied to the relief of the widows, said, with force and arms at London aforesaid, • orphans, and aged parents of our beloved in the parish and ward aforesaid, wickedly, ma· American fellow subjects, who, faithful to the liciously, and seditiously printed and published,
character of Englishmen, preferring death to and caused and procured to be printed and pube slavery, were for that reason only inhumanly lished, in a certain other news-paper, intitled, · murdered by the king's' (again meaning his The Public Advertiser, a certain other false, said majesty's) troops at or near Lexington wicked, malicious, scandalous, and seditious
and Concord, in the province of Massachusets' libel of and concerning his said majesty's go(meaning the said province, colony, or plan- vernment and the employment of his troops, tation of the Massachusets Bay in New Eng. according to the effect following ; that is to Jand, in America) · on the 19th of last April,' say, s (meaning himself the said John in contempt of our said lord the king, in open Horne) think it proper to give the unknown violation of the laws of this kingdom, to the contributor this potice, that I' (again meaning evil and pernicious example of all others in the himself the said John Horne) did yesterday like case offending, and also against the peace pay to Mess. Brownes and Collinson, on the of our said present sovereign lord the king, his account of Dr. Franklin, the sum of 50l. and crown and dignity: and the said attorney-ge- " that l'(again meaning himself the said Jobu peral of our said lord the king for our said lord Horne) will write to Dr. Franklin, requesting the king further gives the Court here to under bim to apply the same to the relief of the stand and be informed, that the said Jobo ' widows, orphans, and aged parents of our beHorne being such person as aforesaid, and · loved American tellow-subjects, wlio, faithful again onlawfully, wickedly, maliciously, and to the character of Englisbmen, preferring seditiously intending, devising, and contriving death to slavery, were' (for that reason only) as aforesaid, afterwards, to wit, on the 14th day inhumanly murdered by the king's' (again of July, in the 15th year aforesaid, with force meaning bis said majesty's), troops at or near and arms at London aforesaid, in the parish Lexington and Concord, in the province of and ward aforesaid, wickedly, maliciously, Massachusets' (meaning the said province, and seditiously did write and publish, and cause colony, or plantation of the Massachusets Bay and procure to be written and published, a cer. in New England, in America) on the 19th of tain false, wicked, malicious, scandalous and last April; John Horue,'(again meaning himseditious libel of and concerning his said ma- self the said John Horne,) in contempt of our jesty's government and the employment of said lord the king, in open violation of the laws bis troops, according to the tenor and effect of this kingdom, in the evil and pernicious exfollowing: •!' (meaving himself the said John ample of all others in the like case offending, Horne) think it proper to give the unknown and also against the peace of our said lord the contributor this notice, that l'(again mean- king, his crown and dignity: and the said ating himself the said John Horne) did yester- torney-general of our said present sovereign • day pay to Messieurs Brownes and Collinson, lord the king for our said lord the king further
on the account of Dr. Franklin, the sum of gives the Court here to understand and be in• 501. and that I' (again meaning bimself the formed, that the said John Horne being such said John Horne) · will write to Dr. Franklin, person as aforesaid, aod contriving and wickedly • requesting him to apply the same to the relief and maliciously devising and intending as • of the widows, orphans, and aged parents of aforesaid, afterwards, to wit, on the said 15th 6 our beloved Americau fellow-subjects, who, day of July in the 15th year aforesaid, with « faithful to the character of Englishmen, pre- force and arms at London aforesaid, in the • ferring death to slavery, were for that reason parish and ward aforesaid, wickedly, malici
only inhumanly murdered by the king's' ously, and seditiously felid print and publisb, (meaning his said majesty's) troops at or and cause and procure to be printed and pubnear Lexington and Concord, in the province lished, a certain other false, wicked, malicious,
of Massachusets,' (meaning the said province, scandalous, and seditious libel of and concerncolony, or plantation of the Massachusets Bay ing bis majesty's government and the employin New England, in America) on the 19th of ment of his troops, according to the tenor and * last April; John Horne," (again meaning effect following; that is to say, :l? (meaning himself ihe said John Horne) in contempt of himself the said Joho Horne) think it proper our said lord the king, in open violation of the to give the unknown contributor this potice, laws of this kingdom, to the evil and pernici- that l' (meaning himself ibe said Joha Hosse) VOL. XX.
• did yesterday pay to Messieurs Browpes and Then the loformation was opened by Mr. • Collinson, on the account of Dr. Franklin, Buller. • the sum of 501. and that l'(agaiu meaning himself the said John Horne) · will write to Mr. Horne. My lord, with your lordship’s • Dr. Franklin, requesting bin to apply ibe permission, I believe it is proper for me, at this
same to ibe relief of the widows, orpbans, and me, before Mr. Attorney-General proceeds, to 'ageil parents of our beloved American fellow. make an objection; and to request your lord• subjects, who, faithful to the character of ship's decision concerning a point of practice • Englishined, preferring death to slavery, in the proceeding of ubis trial. Have I your • were for that reason only inhumanly mur. | lordship's leave? • dered by the king's' (again meaning his said Lord Mansfield. Certainly. majesty's) troops at or near Lexington and Mr. Horne. Gentlemen of the jury• Concord, in the province of Massachusets' Lord Munsfield. No. Not to the jury. If (meaning the said province, colony, and plan- you make an objection to the irregularity of tation of the Massachusets- Bay in New Eng- ihe proceedings, you must address me. Jand, in Ainerica) on the 19th of last April; Mr. Horne. Tam well aware of it: and I • John Horne' (again meaning limiself the said hope that your lordsbip will, upon this and Joho Horne) in contempt of our said lord the other occasions, hear me before you suppose kiny, in open violation of the laws of this king me to be in the wrong. I was not going 10 dom, to the evil and pernicious example of all address my argument por my objection to the others io the like case offending, and against jury; if your lordship will only permit me to the peace of our said present sovereign lord the request iheir attention; becalise I have freking, his crown and dignity : wbereupon the queutly observed upon trials, that in all cases said attorney general of our said lord the king, almost, when application has beeu made to the who for our said present sovereign lord the judge to decide upon any objection, the jury king prosecutes in this behalf, prays the consi- bave been generally supposed io be in a manner deration of the court here in the premises, and out of court; and I therefore now address mythat due process of law may be awarded against self to be jury, only to request their attention, him the said Jobo Horne in this behalf, to make and for no other purpose. biro answer to our said present sovereign lord Lord Mansfield. Very well. Go on. the king touching and concerning the premises Mr. Horne. Gentlemen of the jury, what aforesaid, &c.
E. THUrlow. * I have said to bis lordship, if you beard it, may
perhaps make it unnecessary for me to address Friday, July 4, 1777.
yon, 'Gentlemen, though what I am going
to say to his lordship respects a matter of As soon as the court was opened, the special law and practice of the Court, yet I meant to jury were called over : eleven only appearing, request your attention, because you may find Mr. Attorney General prayed a tales. The perhaps that the decision may concern you to box containing the names of the common jury hear it. My lord, I undersiand (and I think standing open upon the table, the Associate I see good reasons why it should be so) that it took out a paper, and, shewing it to Mr. Horne, is the usual practice and wholsome custom of asked, if he bad any objection to that man's the Court, in trials of this kind, that unless the being sworn on the jury ? Mr. Horne replied, defendant examines witnesses in bis defence, “ I object to that name, and for this reason: I the defendant's answer closes the pleading: desire that the box may be shut and shaken; and it is not the practice, in that case, that the and when that is done, I shall bave vo objec counsel for the prosecution should reply. But, tion to any name.” The box was accordingly my lord, in the late trials of the printers, for sbut and shaken, and a name drawn out; but prioting and publishing the advertisement now another of the special jury coming into court, in question, I observed that Mr. Attorney-Gethe talesman was not sworo.
neral claimed and exercised the peculiar priviThe following Special Jury were sworn :
lege of replying, notwithstanding that no wit.
pesses bad been called for the defendant. My Joseph Dalmer, Cursitor-street, merchant. lord, with your lordship's permission, I mean Philip Bulkley, Fleet-street, druggist. to submit my reasons to your lordship in supJames Brant, Cheapside, silkman.
port of my objection to this claim of Mr. AtDavid Buffar, Cheapside, woollen-draper. torney-General in the present trial. William Watts, Fore-street, goldsmith. Lord Mansfield. You come 100 early for Nathaniel Lucas, Fore-street, merchant. the objection; because the objection, if there is Williain Abdy, Oat-lane, goldsmith.
any foundation in it, should be when be gets up Thomas Smith, Milk-street, merchant. to reply. Tho. Brooks, Cateaton-street, linen-draper. Mr. Horne. My lord, I own I did expect M. Stanton, Aldermanbury, warehouseman. that Mr. Attorney-General would urge someWm. Loydd, Christ-church, woolleo-draper. thing of that kind against what I have said. I Henry Morris, Fleet-street, silversmith, stopped, expecting that answer from him; be
cause, my lord, he may, very likely, imagine Afterwards lord Thurlow and Lord Chad- it to be a part of the duty of his office to baffle cellor,
me in any manner, and to take all advantages which he can, whether fair or unfair, against of the Court, because it is supposed the method me, and to obtain a verdict against me by any best calculated for the obtaining of justice; means—there are reasons why he should at that is, for the conviction of the guilty and the tempt to do so; and therefore, I own, I ex. acquittal of the innocent; for both are to be pected that the Attorney-General would bave regarded : and when that is done, then only, I urged that against me. But, my lord, I ap: suppose, is justice done. Now, my lord, the prehend, with great submission, that this, and reason of this practice is not, like some others, this only, is the proper moment
so covered over by the rust of ages, or disguised Lord Mansfield. "Mr. Horne, I will do so by the change of circumstances, as that it far for you. If the defence that you are to should be difficult now to discover it. On the make may in any manner be guided or go contrary, it is, to my understanding and appreverned by a knowledge, whether the Attorney- hepsion, as plain and evident now as it was the General has or has not a right to reply; if Mr. first day that it was introduced. Bat that is no Attorney-General acquiesces in it, I have no part of my business tr enter into: the reason objection to your being apprized how it stands of the practice it does not belong to me to beforehand ; because otherwise it would come give. It is sufficient for me to say that such is after you had made your defence: and if you the practice, and being the practice, it must be mean to calculate your defence in some way supposed the best method of obtaining justice. differently, opon the expectation of his having or Then, my lord, I humbly submit it to your bis not having a right to reply, I will willingly lordship, that if this is the best method for ob(I dare say the Attorney-General makes no obtaining of justice, a contrary method must be jection to it) hear you upon that point now. attempted for some other end; and that end Att. Gen. None in the world.
must be injustice, or the conviction of the acMr. Horne. Your lordship has hit upon one cused by any means. My lord, the practice, of the very reasons that I was going to lay be- and this exemption from it, which Mr. Atiorfore you. But, my lord, 1 bad rather that this ney. General claims, cannot both stand: one or had come as a matter of justice, than as an ac- the other must be given up; because they canquiescence from the Attorney General; be- not both be the best method and most likely cause I suppose that every defendant, who means for the obtaining of justice. Now, my shall hereafier stand in my situation, will have lord, that the king, or that the attorney-gethe same right; and, if it comes as a matter of neral in his name, should be permitted to pursue favour from the Attorney-General, those for any other method or practice than that estawhom I am much more concerned than my blished method which is best calculated for the self, may pot perhaps meet with that genteel obtaining of justice, seeins to me completely acquiescence. However, I thank the Attorney- absurd. For the king, such as the law and General. I shall beg tben, my lord, at present such as reason conceive bim, can have no to make my objection. I am sure should other interest but in the obtaining of justice, have been permitted to make it, because the impartial justice. And if it was possible, my arguments wbich I had to use would have been lord, to conceive a king even with a leaning or such as would more particularly have affected an inclination on either side, it must rather be your lordship’s mind. If then I am permitted, that his subjects should be found innocent than I suppose that I am now to object to the right guilty. But this claim of Mr. Attorney-Geof reply.
neral, my lord, absurdly supposes the contrary; Lord Mansfield. You are now to object to and that the king has an interest in their being the right of reply:
convicted; and ibat therefore easier and readier Mr. Horne. "My lord, if I should forget means, and greater means, are to be allowed to any thing upon this occasion, so vew to me, the king for obtaining a conviction, thao are and make any mistakes, I shall beg leave to allowed to aoy other person, my equal or my refresh my meinory with what I have written inferior. And yet, my lord, I must acknowdown. My lord, I have been taught by the ledge that the claim which I am now objecting best authorities, that the established practice to, is not a new one. My lord, in the reign of and approved rules of the court are so, only James ibe second, that man (for be never was because they are reason, and reason approved for oue moment a king) claimed the peculiar by long experience; and they obtain as rules right, prerogative, and power of dispensing and practice only for that cause. My lord, with the laws of the land. Sir Edw. Herbert, believe I shall not be contradicted by your lord- the chief justice of those days, and the other ship, when I aver, that it is the established judges, decided in favour of that claim.* Thank practice and approved rule of the Court, in God, my lord, the glorious Revolution—(and I trials of this kind (where the Attorvey-General call it so: it shall not have less praise from me does not prosecute) that if the evidence brought because it is now grown uncourtly)-the glofor the prosecution is not controverted by any rious Revolution put an end to that iniquity. other evidence on the part of the defendant, but Unfortunately for this country, the principles the fact, as far as it depends upon testimony, which produced that and many other iniquities taken as the prosecutor's evidence left it; that are now again revived and fostered ; and then the defendant's answer closes the pleading. And this, my lord, has obtained and been * See the Case of sir Edward Hales, vol. 11, 'established as the approved rule and practice p. 1165, of this Collection,
amongst many other most shameful doctrines, reserve tliat power to myself to speak as freely this doctrine of a dispensing power is now re- of it as I should do of any other indifferent acvived again-under another shape and form tion in the world, indeed, but it is the same power. It is now Lord Mansfield. There is no occasion for Mr. a prerogative to dispense with the rules and | Attorney-General to say any thing. I am most methods of proceeding; that is, my lord, to clear that the Attorney-General has a right to dispense with the laws: for the rules and reply if he thinks fit, and that I cannot deprive methods of proceeding (and I have heard your him of it; and there is no such rule, that in no Jordsbip say it in other cases) are parts of the case a private prosecutor or private plaintiff Jaws of the laud. My lord, I have been told shall not reply, if new matter is urged which (and that by a greater authority than any al. calls for a reply; new questions of law, new most that bow lives) that "the methods and observations, or any matter that makes a reply forms of justice are essential to justice itself.” necessary. No authority at law has been And, my lord, the forms and methods of pro- quoted to the contrary. A party that begins ceeding are particularly tender in that part of bas a right to reply; there is not a State Trial the laws which is calculated for the protection of wbere the solicitor-general or the attorney-geinnocence. My lord, the penal laws are made neral have not replied ; and I know of no law to bring criminals and offenders to justice; but that says in any case the prosecutor may not the forms and methods of proceeding of the reply. But, for the saving of time, rules by. courts of justice are appointed singly to distin- usage of the bar are received. Two gentle. guish the innocent from the guilty, and to pro- men don't examine the same witness, but yet tect them against exorbitant power. My lord, they do very often.* They don't reply when in the case of this particular privilege which there is no evidence for a defendant, and pothe Attorney-General claims, I think I could thing new to make it necessary to reply: then spend a day in shewing how'many received they don't do it; but if a question of law was legal maxims and truths it violates: for truth is started, which nobody thought of in the begins of such a nature that it has a thousand branches ning, they do it then: then they have a right issuing from it; and talshood, let it be as care. to reply, and must reply, for the sake of jusful as it can, will run against some one or oiber tice. And therefore I apprize Mr. Horne tbaithe of them. I do really believe I could fairly Attorney-General certainly has a right to reply. spend a day in shewing the absurdity of this Mr. Horne. Your lordship must be very senclaim. But yet, to my great disadvantage and sible how untoward is my situation in this case. my great sorrow, when, in the late trial of the This is only a repetition of what happened be. printers, the defendant's counsel objected to fore ; if your lordship will thus do the business tbis claim of Mr. Attorney-General, your lord- of Mr. Attorney-General for him. My lord, ship interfered bastily, and saved Mr. Attorney you now take from me what you give to bim; General the trouble of vindicating his claim. | you take from me that right of reply which by Your lordship saved him from the embarrass- the practice of the court I have, whilst you ment he would then bave found, and which I give to him that right of reply wbich by the am confident he will now find, io produce one practice of the court he has not. I have a right single argument of reason or justice in behalf iv reply to the Attorney General's answer to my of his claim: and this your lordship did by an objection, but I have vo right to reply upon the absolute overbearing of the objection, without judge. I beg the Attorney-General may do bis eren permitting an argument. And, my lord, own business. He is full of reason and arguthat is a very great disadvantage to me, as well ment. He smiles. Todeed he well may. as it was to the defendant in whose cause he My lord, he can surely prove the justice of bis made it: for, my lord, ibe very ingenious coun. claim bimself, if there is any in it. My lordsel-(I beg the gentleman's pardon for at- Lord Mansfield. Sir--hear---Your proper tempting to distinguish bim by that epithet ; reply to the judgment I have given is a inotion there is no want of, ingenuity at the bar)—but to the Court; I never here decide. It is speakthe very honest counsel who made that objec. ing to no purpose to persuade me where I have tion, would have been able to support it in a no doubt.—The Attorney-General here will be very different mapper from any in which I can of the same opinion with me. But your proper expect to do it. My lord, the trial may take reply to me, is a motion to the court; and if up some time; therefore I will no longer bold the suffering bim to reply is against law, it is you on this objection. I shall reserve to my- an irregularity in the trial, for which the verself the right, which I did exercise in con- dict will be set aside. You will have a remedy. demping the action of the king's troops (which Mr. Horne. O, my lord, I have already sut: I did then call, and do still, and will to-morrow fered uoder your lordship's directing me to recall, because contrary to law, a murder) so I medies. The most cruel of all poisoners are shall reserve it to myself, and pot pow take up those who poison our remedies. Has your more of the time, to say what I shall think lordship forgotten ?-1 am sure you have not proper by argument aud reason on the decision forgotten tbat I bave, once before in my life, of your lordship; which decision must come had the honour to be tried before your lordship after your lordship shall bave heard the Attorney-General's answer, and my reply :-for See the Case of Doe o. Roe, 2 Campbell's I take it I bave a right to reply. I shall then Nisi Prius Rep. 280. + See vol. 6, p. 215. for a pretended libel. My lord, this matter of both know he cannot give ; and then Mr. Atreply I know so well to be the practice, not torney-General gets np to save your lordship in only from the intelligence I have had upon that his turn, and to stop me from explaining your subject, but from that very trial at Guildford, lordship's conduct. Thus between your lordon ihe action brought against me by the present ship and Mr. Attorney-General, a defendant is lord Onslow. My lord, I could then bave con- in a blessed situation! (Here some promiscuous tradicted bis evidence. I will just mention two altercation ensued, after which Mr. Horne proor three particulars in this case. It was the ceeded.] What I was speaking of was merely most scandalous one that ever came before a this; that the practice - [Here again some court. (Your lordship cannot forget the parti- interruption] I was going to shew your lordculars in that trial.). I was prosecuted by him ship (in answer to what fell from you, and not for a libel. On the first action wbich he distinct from this cause, nor from what your brought, I obtained a nonsait. Upon that, a lordship had said) I was going, and decently fresh action was brought. To that fresh ac- going, to shew your lordship, that it was the tion in order to try it in Surrey, where the practice of the court that the prosecutor should plaintiff had bis influence) in that fresh action, not reply unless evidence is called for the defenwords spoken a year or two before were added, dant.' I was going to shew it to your lordship words of a different nature, and upon a different from my own particular case before your lordsubject. We came to trial before your lordship, ship at Guildford, and that I suffered under it and I do remember some very strong cases considerably; and I mentioned the instance, (which indeed I intended to have published) of I am sure that is not wandering from the point, your lordship's practice in that trial. But, my when your lordship bas said, that it was not lord, however impatient I may be thought to be, the practice of the court. If the Attorney. GeI am very patient under personal injuries. I neral had said so, I should bave had a right to have never complained of the practices used reply to him. But I must say, as before, if against me on that trial, nor of the mistakes (to your lordship is to do the Attorney-General's speak gently) which your lordship made. business, and so cut off my reply, and then Your lordship then told me, as pow, that I Mr. Attorney General is to get up and say, should have a remedy
This has nothing to do with the cause ; between Attorney-General. I beg leave to object to the Chief Justice and the Attorney. General, this way of proceeding in a trial. What can it what am I to do? My lord, I beg leave to menbe to the issue that is joined in this cause, any tion to your lordship, that if the Attorney-Genepart of the history of what related to the trial at ral had said truly, and if I had wandered from Guildford ?
the case, it would not be wonderful tbat I, unused Lord Mansfield. If I remember right, you to these matters, should wander a little; and had a remedy there, for it was determined not your lordship should have some indulgence to to be actiopable.
my situation. My lord, I was going to menMr. Horne. True, my ford; but it cost me tion to your lordship my owo case : all I know 2001. The remedy was almost as bad as the of law is from my own case, and from what I verdict would have been.
have been a witness of myself. I, in that case, Lord Mansfield. There must be an end. at Guildford, did suffer a false evidence to proMr. Horne. Not of this objection.
cure (by your lordship's mistaken direction) a Lord Munsfield. No; ap end of going out bad, false verdict; because I was told by iny of the You must behave decently and counsel (some of the first counsel in this counproperly.
try) that the words themselves were not actionMr. Horne. I will surely bebave properly. able; and therefore, though I could bave
Lord Mansfield. This is over. 1 tell you proved by gentlemen in court that the words beforehand, I apprize you of it (which is going sworn against me were not spoken by me; yet out of the way), that it is not in my power to de- my counsel told me it was better for me to Jet prive the prosecutor of replying, if he sees those words go as proved, thau, by calling evicause to desire it.
dence, to give to the prosecutor a right of reply, Mr. Horne. Now then, my lord, I entreat which otherwise he would not bave: therefore 'you to let me decently tell you of the situation I suffered the words to be supposed to have you put me into. When I offer to prove by been spoken, rather than give to my adversary argument the right wbich I have to make my a right to a reply. But now I find he bad that objection at this time, your fordship, kindly right without my calling evidence; that is, I stops me, and takes it for granted. Then, af- am told so by yoor losdship, though I have terwards, it seems, it is you who apprized me. been told otherwise by all ihe counsel and all You tell me you have, out of the rule, apprized the trials I have ever been at. My lord, as for me: yet, because I accepted that wbich I knew quoting laws for the practice, I hope your lordto be my right, as an apprisal which you were ship does not expect me to quote law in a matwilling to give me, not meaning however to ter of practice, and indeed in hardly any other preclude myself from the argument, your lord- matter, except the law that I bave learned from sbip makes use of my acceptance of this ap- your lordship. I was a constant attender of prisal to defeat my objection. First, your lord your lordship some years ago, and I have gaship interferes to save Mr. Attorney-General ibered from your practice some things which I from attempting to give a reason, which you take to be, and some which I take not to be