which he can, whether fair or unfair, against me, and to obtain a verdict against me by any means there are reasons why he should attempt to do so; and therefore, I own, I expected that the Attorney-General would have urged that against me. But, my lord, I apprehend, with great submission, that this, and this only, is the proper moment of the Court, because it is supposed the method best calculated for the obtaining of justice; that is, for the conviction of the guilty and the acquittal of the innocent; for both are to be regarded: and when that is done, then only, I suppose, is justice done. Now, my lord, the reason of this practice is not, like some others, so covered over by the rust of ages, or disguised by the change of circumstances, as that it should be difficult now to discover it. On the contrary, it is, to my understanding and appre Lord Mansfield. Mr. Horne, I will do so far for you. If the defence that you are to make may in any manner be guided or governed by a knowledge, whether the Attorney-hension, as plain and evident now as it was the General has or has not a right to reply; if Mr. Attorney-General acquiesces in it, I have no objection to your being apprized how it stands beforehand; because otherwise it would come after you had made your defence: and if you mean to calculate your defence in some way differently, upon the expectation of his having or his not having a right to reply, I will willingly (I dare say the Attorney-General makes no jection to it) hear you upon that point now. Att. Gen. None in the world. first day that it was introduced. But that is no part of my business to enter into: the reason of the practice it does not belong to me to give. It is sufficient for me to say that such is the practice, and being the practice, it must be supposed the best method of obtaining justice. Then, my lord, I humbly submit it to your lordship, that if this is the best method for obobtaining of justice, a contrary method must be attempted for some other end; and that end 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. Attorfore you. But, iny lord, I had 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 hereafter 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 not perhaps meet with that genteel | obtaining of justice, seems to me completely acquiescence. However, I thank the Attorney-absurd. For the king, such as the law and General. I shall beg then, my lord, at present to make my objection. I am sure I should have been permitted to make it, because the arguments which I had to use would have been such as would more particularly have affected your lordship's mind. If then I am permitted, I suppose that I am now to object to the right of reply. Lord Mansfield. You are now to object to the right of reply. Mr. Horne. My lord, if I should forget any thing upon this occasion, so new to me, and make any mistakes, I shall beg leave to refresh my memory with what I have written down. My lord, I have been taught by the best authorities, that the established practice and approved rules of the court are so, only because they are reason, and reason approved by long experience; and they obtain as rules and practice only for that cause. My lord, believe I shall not be contradicted by your lordship, when I aver, that it is the established practice and approved rule of the Court, in trials of this kind (where the Attorney-General does not prosecute) that if the evidence brought for the prosecution is not controverted by any other evidence on the part of the defendant, but the fact, as far as it depends upon testimony, taken as the prosecutor's evidence left it; that then the defendant's answer closes the pleading. And this, my lord, has obtained and been established as the approved rule and practice such as reason conceive him, can have no other interest but in the obtaining of justice, impartial justice. And if it was possible, my lord, to conceive a king even with a leaning or an inclination on either side, it must rather be that his subjects should be found innocent than guilty. But this claim of Mr. Attorney-General, my lord, absurdly supposes the contrary; and that the king has an interest in their being convicted; and that therefore easier and readier means, and greater means, are to be allowed to the king for obtaining a conviction, than are allowed to any other person, my equal or my inferior. And yet, my lord, I must acknow ledge that the claim which I am now objecting to, is not a new one. My lord, in the reign of James the second, that man (for he never was for one moment a king) claimed the peculiar right, prerogative, and power of dispensing with the laws of the land. Sir Edw. Herbert, the chief justice of those days, and the other judges, decided in favour of that claim.* Thank God, my lord, the glorious Revolution-(and I call it so: it shall not have less praise from me because it is now grown uncourtly)-the glorious Revolution put an end to that iniquity. Unfortunately for this country, the principles which produced that and many other iniquities are now again revived and fostered; and * See the Case of sir Edward Hales, vol. 11, p. 1165, of this Collection. amongst many other most shameful doctrines, this doctrine of a dispensing power is now revived again-under another shape and form indeed; but it is the same power. It is now a prerogative to dispense with the rules and methods of proceeding; that is, my lord, to dispense with the laws: for the rules and methods of proceeding (and I have heard your lordship say it in other cases) are parts of the laws of the land. My lord, I have been told (and that by a greater authority than any almost that now lives) that "the methods and forms of justice are essential to justice itself." And, my lord, the forms and methods of proceeding are particularly tender in that part of the laws which is calculated for the protection of innocence. My lord, the penal laws are made to bring criminals and offenders to justice; but the forms and methods of proceeding of the courts of justice are appointed singly to distinguish the innocent from the guilty, and to protect them against exorbitant power. My lord, in the case of this particular privilege which the Attorney-General claims, I think I could spend a day in shewing how many received legal maxims and truths it violates: for truth is of such a nature that it has a thousand branches issuing from it; and falshood, let it be as careful as it can, will run against some one or other of them. I do really believe I could fairly spend a day in shewing the absurdity of this claim. But yet, to my great disadvantage and my great sorrow, when, in the late trial of the printers, the defendant's counsel objected to this claim of Mr. Attorney-General, your lordship interfered hastily, and saved Mr. Attorney General the trouble of vindicating his claim. Your lordship saved him from the embarrassment he would then have found, and which I am confident he will now find, to produce one single argument of reason or justice in behalf of his claim: and this your lordship did by an absolute overbearing of the objection, without even permitting an argument. And, my lord, that is a very great disadvantage to me, as well as it was to the defendant in whose cause he made it: for, my lord, the very ingenious counsel-(I beg the gentleman's pardon for attempting to distinguish him by that epithet; there is no want of ingenuity at the bar)-but the very honest counsel who made that objection, would have been able to support it in a very different manner from any in which I can expect to do it. My lord, the trial may take up some time; therefore I will no longer bold you on this objection. I shall reserve to my self the right, which I did exercise in condemning the action of the king's troops (which I did then call, and do still, and will to-morrow call, because contrary to law, a murder) so I shall reserve it to myself, and not now take up more of the time, to say what I shall think proper by argument and reason on the decision of your lordship; which decision must come after your lordship shall have heard the Attorney-General's answer, and my reply:-for I take it I have a right to reply. I shall then reserve that power to myself to speak as freely of it as I should do of any other indifferent action in the world. Lord Mansfield. There is no occasion for Mr. Attorney-General to say any thing. I am most clear that the Attorney-General has a right to reply if he thinks fit, and that I cannot deprive him of it; and there is no such rule, that in no case a private prosecutor or private plaintiff shall not reply, if new matter is urged which calls for a reply; new questions of law, new observations, or any matter that makes a reply necessary. No authority at law has been quoted to the contrary. A party that begins has a right to reply; there is not a State Trial where the solicitor-general or the attorney.general have not replied; and I know of no law that says in any case the prosecutor may not reply. But, for the saving of time, rules by usage of the bar are received. Two gentlemen don't examine the same witness, but yet they do very often. They don't reply when there is no evidence for a defendant, and nothing new to make it necessary to reply: then they don't do it; but if a question of law was started, which nobody thought of in the beginning, they do it then: then they have a right to reply, and must reply, for the sake of justice. And therefore I apprize Mr. Horne that the Attorney-General certainly has a right to reply. Mr. Horne. Your lordship must be very sensible how untoward is my situation in this case. This is only a repetition of what happened be fore; if your lordship will thus do the business of Mr. Attorney-General for him. My lord, you now take from me what you give to him; you take from me that right of reply which by the practice of the court I have, whilst you give to him that right of reply which by the practice of the court he has not. I have a right to reply to the Attorney General's answer to my objection, but I have no right to reply upon the judge. I beg the Attorney-General may do his own business. He is full of reason and argument. He smiles. Indeed he well may. My lord, he can surely prove the justice of his claim himself, if there is any in it. My lord Lord Mansfield. Sir-hear---Your proper reply to the judgment I have given is a motion to the Court; I never here decide.—It is speaking to no purpose to persuade me where I have no doubt.-The Attorney-General here will be of the same opinion with me. But your proper reply to me, is a motion to the court; and if the suffering him to reply is against law, it is an irregularity in the trial, for which the verdict will be set aside. You will have a remedy. Mr. Horne. O, my lord, I have already suffered under your lordship's directing me to remedies. The most cruel of all poisoners are those who poison our remedies. Has your lordship forgotten?-I am sure you have not forgotten that I have, once before in my life, had the honour to be tried before your lordship * See the Case of Doe v. Roe, 2 Campbell's Nisi Prius Rep. 280. + See vol. 6, p. 215. for a pretended libel. My lord, this matter of reply I know so well to be the practice, not only from the intelligence I have had upon that subject, but from that very trial at Guildford, on the action brought against me by the present lord Onslow. My lord, I could then have contradicted his evidence. I will just mention two or three particulars in this case. It was the most scandalous one that ever came before a court. (Your lordship cannot forget the particulars in that trial.) I was prosecuted by him for a libel. On the first action which he brought, I obtained a nonsuit. Upon that, a fresh action was brought. To that fresh action (in order to try it in Surrey, where the plaintiff had his influence) in that fresh action, words spoken a year or two before were added, words of a different nature, and upon a different subject. We came to trial before your lordship, and I do remember some very strong cases (which indeed I intended to have published) of your lordship's practice in that trial. But, my lord, however impatient I may be thought to be, I am very patient under personal injuries. have never complained of the practices used against me on that trial, nor of the mistakes (to speak gently) which your lordship made. Your lordship then told me, as now, that I should have a remedy this Attorney-General. I beg leave to object to way of proceeding in a trial. What can it be to the issue that is joined in this cause, any part of the history of what related to the trial at Guildford? both know he cannot give; and then Mr. Attorney-General gets up to save your lordship in his turn, and to stop me from explaining your lordship's conduct. Thus between your lordship and Mr. Attorney-General, a defendant is in a blessed situation! [Here some promiscuous altercation ensued, after which Mr. Horne proceeded.] What I was speaking of was merely this; that the practice-[Here again some interruption] I was going to shew your lordship (in answer to what fell from you, and not distinct from this cause, nor from what your lordship had said) I was going, and decently going, to shew your lordship, that it was the practice of the court that the prosecutor should not reply unless evidence is called for the defendant. I was going to shew it to your lordship from my own particular case before your lordship at Guildford, and that I suffered under it considerably; and I mentioned the instance. I am sure that is not wandering from the point, when your lordship has said, that it was not the practice of the court. If the Attorney-GeIneral had said so, I should have had a right to reply to him. But I must say, as before, if your lordship is to do the Attorney-General's business, and so cut off my reply, and then Mr. Attorney General is to get up and say, This has nothing to do with the cause; between the Chief Justice and the Attorney General, what am I to do? My lord, I beg leave to mention to your lordship, that if the Attorney-General had said truly, and if I had wandered from the case, it would not be wonderful that I, unused to these matters, should wander a little; and your lordship should have some indulgence to my situation. My lord, I was going to mention to your lordship my own case: all I know of law is from my own case, and from what I have been a witness of myself. I, in that case, at Guildford, did suffer a false evidence to procure (by your lordship's mistaken direction) a bad, false verdict; because I was told by my counsel (some of the first counsel in this country) that the words themselves were not actionable; and therefore, though I could have proved by gentlemen in court that the words sworn against me were not spoken by me ; yet my counsel told me it was better for me to let those words go as proved, thau, by calling evidence, to give to the prosecutor a right of reply, which otherwise he would not have: therefore I suffered the words to be supposed to have been spoken, rather than give to my adversary a right to a reply. But now I find he had that right without my calling evidence; that is, I am told so by your lordship, though I have been told otherwise by all the counsel and all the trials I have ever been at. My lord, as for quoting laws for the practice, I hope your lordship does not expect me to quote law in a matter of practice, and indeed in hardly any other matter, except the law that I bave learned from your lordship. I was a constant attender of your lordship some years ago, and I have gathered from your practice some things which I take to be, and some which I take not to be Lord Mansfield. If I remember right, you had a remedy there, for it was determined not to be actionable. Mr. Horne. True, my lord; but it cost me 2001. The remedy was almost as bad as the verdict would have been. Lord Mansfield. There must be an end. properly. Mr. Horne. I will surely behave properly. Lord Mansfield. This is over. 1 tell you beforehand, L'apprize you of it (which is going out of the way), that it is not in my power to deprive the prosecutor of replying, if he sees cause to desire it. Mr. Horne. Now then, my lord, I entreat 'you to let me decently tell you of the situation you put me into. When I offer to prove by argument the right which I have to make my objection at this time, your lordship kindly stops me, and takes it for granted. Then, af terwards, it seems, it is you who apprized me. You tell me you have, out of the rule, apprized me: yet, because I accepted that which I knew to be my right, as an apprisal which you were willing to give me, not meaning however to preclude myself from the argument, your lordship makes use of my acceptance of this apprisal to defeat my objection. First, your lordship interferes to save Mr. Attorney-General from attempting to give a reason, which you maxims of law. Now, in that case I mentioned at Guildford, I suffered words to go as proved, which I could have disproved—and there are gentlemen in court now who know the fact, and would have been the evidences-I suffered words to go as proved, because I would not give the prosecutor a right to reply. Your lordship directed the jury to find a verdict for the words; and your lordship said, if your direction was mistaken (because my counsel had argued that the words were not actionable) your lordship told my counsel-(he published a pamphlet afterwards: he was much hurt at it) you said that what he had advanced surprized you; that it was new law; such as you had never heard before- (he was much hurt at it; he felt it: he was hurt at your lordship's declaration he published a pamphlet afterwards addressed to your lordship, which I am sure you must remember).-My lord, in consequence of your lordship's direction, a verdict was given against me for 400; and you said, if you were mistaken in your directions, that I had a remedy; I need only appeal to the court: I had a remedy. What sort of a remedy? The expence of the remedy was almost equal to the verdict. The verdict was set aside, that is true; but your lordship knows that a verdict makes the defendant pay his own costs. I should have had the costs, if the verdict had not been given against me. What sort of remedies are these, that are worse than the fair honest punishment that can be inflicted upon the charge? Therefore I do intreat that your lordship will not send me to remedies which I hardly know how to take; especially as I have always found that such kind of remedies from your lordship are like giving a man a wound, and then telling him where he may find a plaister: it is not a thing that I should wish to do, nor would your lordship like to suffer it. And as your lordship says that no law has been quoted to prevent his reply, I intreat that I may bear from Mr. Attorney-General, or from yourself, that law that gives him a right to reply. Lord Mansfield (to the Attorney-General). Go on with the trial. Mr. Horne. 1 shall hear no reason then from either of you? Well! if so, I must submit under it. Attorney General. My lord, and gentlemen of the jury, there is nothing in this case (unless the behaviour of the defendant should constitute that something) that can make it at all different from the most ordinary case of a plain delinquent in a most gross offence being brought before a court of justice. I have looked round with a degree of examination to see if I could see whether there was one amongst the numerous bystanders that I saw here, who had conceived a favourable impression from so extraordinary an interposition as one has heard to-day. I certainly should not rise to take off or repel loose slander scattered about without being pointed at any one individual particularly, much less should I take notice of that sort of slander which, affecting to point itself, only disgraced itself in the manner of that affectation. For my own part, I should think I was stooping exceedingly below that character and that situation in the world which I hope I am entitled to, if I were to set myself to defend my own peculiar part from any aspersions that have been thrown upon me. It is the duty of my office to prosecute with integrity those whom, according to the best of my judgment, I believe to be fair objects of prosecution. It is the duty of my office, as far as I can govern that duty, to conduct the prosecution with the utmost clearness and the fullest honour. And if I have taken a part in this, or in any prosecution that any man can fairly stand forth, in a manly style, and challenge directly and pointedly, let it be challenged, and let me be called upon to answer it. But to be told that I stand here ready to take all manner of advantages, fair or unfair, against the delinquents whom I call into justice, it is a sort of aspersion below refutation; and I will not stoop to take notice of it, unless it should condescend upon some particular act in my conduct that makes me an object of that species of animadversion. Whether I am or whether I am not to reply in such a cause as this, it is, in this moment of it, not so much irregular to advance it, as impossible to foresee. When I read over the case, when I consider the effect of it, I cannot foretel the slightest occasion to trouble you by way of reply for of all the plain and simple maiters that ever I had occasion to lay before a court of justice, there is the least degree of complication in that which I am about to state to you now. This is an information brought against Mr. Horne for being the author and the original publisher of this libel The crime that I put most upon is that which I stated last, that he was the original publisher of this libel. It is in that respect that his crime appears to me to differ most from those that have been called into justice before. The circumstance of bis name being printed at the bottom of the libel was an additional aggravation in this respect, because it seemed to imply a bolder insult upon manners and decency, and the laws of the country, than a simple publication of a libel without that name would have been. It seemed to imply this, because, while that name lay hid behind the printer of the paper, the stoutest champion for sedition could not have defied the laws with greater security; for, though it stood in capitals upon the front of many thousand pages, yet it was as inscrutable and impossible for me to follow, as if the name had not appeared upon the paper at all. For the rest of it, I put it upon the publication, chiefly because that seems to be the whole object and drift of the composer of the libel: for as a composition it is absolutely nothing. I do not mean to speak of it by way of derogation from the parts and talents of the ingenious gentleman (whose parts and talents I never heard so the most ordinary understanding that hears me now speak, that has so gross an understanding as to imagine that he would be more free if it were in the power of any man that thought proper to revile his character, (which is the question which is now immediately subjected to you) or to injure him in his person or fortune, or in any other manner whatever? This therefore is not to be coloured, as far as I can foresee, by any kind of argument whatever. The nature of the libel is too gross to be commented upon; it does no honour to any body that has been concerned in making it. where an orderly government prevails, and much of as I have done to-day) I do not mean to speak it in derogation of them; no doubt but while the form of government subsists, to write he could have writ a better thing: but his un- against the transactions of that government, as derstanding was industriously let down and sup- if stained with all the crimes under heaven, and pressed; and the very purpose of this writing calculated for no earthly purpose but of comwas to make it ribaldry and trash. For the mitting those crimes? To suppress liberty (the intention of it was (as it appears to me) the in- only object for which government is or ought tention of it was nothing more than to defy the to be erected) to suppress that liberty by the means of murder, is imputed to the transactions laws and justice of the country, proclaiming, of the government of the freest country now as it were, thus: either punish this libel, or confess that there are no laws in the country under heaven! and it is called liberty to do by which a libel can be punished. Others have that! whereas men must be short-sighted inentertained sufficient malice against this coun- deed, a man must be drivelling like an idiot that does not see that the maintaining of regutry; others have been anxious enough to excite sedition; but this is written chiefly with lar government is the true, the only means of the purpose of telling mankind-" Thus I dare maintaining liberty. Is it liberty to put the do! I dare insult the laws without having any characters of persons, the properties of every earthly thing to state to the public, except an individual, under the tyrannous hand of anarinsult upon the laws." Sometimes a libel is chy, and of every man that thinks proper to covered (though thinly covered enough) with seize them, uncontroled by law? Is that lithe pretence of informing mankind, or of dis-berty? And is there any one by-stander of cussing public subjects for the use of mankind: here is not even the affectation of giving information here is not even the affectation of discussion: but the writer tells you in so many blunt words (of no kind of meaning in the world but to convey reproach and scandal) that the persons who were employed by the government are guilty of murder; and the persons who employed them consequently involved in the same guilt. For what is the nature of the libel that is published-" King's Arms tavern-At a meeting held during an adjournment" (I do not mean to make any observation upon the meeting during an adjournment)" a gentleman proposed that a subscription should be entered into"-(this I conceive to be a device-not a very rich one in point of invention-but a device to introduce that which follows)" a gentleman proposed that a subscription should be entered into by such of the members present who might ap. prove of the same, for the purpose of raising the sum of 1007. to be applied to the relief of the widows, orphans, and aged parents of our beloved American fellow-subjects, who, faithful to the character of Englishmen, preferring death to slavery, were for that reason only inhumanly murdered by the king's troops." Murdered by the king's troops! What kind of palliation (justification it is absurd and nonsense to talk of) but what kind of palliation can be given to the charging men with the crime of murder, by writing against them in a news-paper? Is it to be laid down for law, or a thing to be tolerated in a civilized country, that crimes of the most heinous sort shall be imputed to men by a public reviler in a news-paper, who yet dares not stand forth as an accuser? Is that to be tolerated in a civilized country, the writing against men that they are guilty of murder who are not to be accused of that crime? Is it to be tolerated in a country Some account of this business is exhibited in Stephens's Memoirs of Horne Tooke, vol. 1, PP. 435, et seq. I shall content myself with proving the fact of this paper having been written, of this paper having been published originally by Mr. Horne; and the conclusion to be made upon that is too obvious a one, and too broad a one, for me to foresee at least any kind of difficulty about it. It was my duty to lay it before you. I, charged with the duty of my office, have brought it here; it is your duty to judge of it. You, charged by the oath that you have taken, are to determine upon it. If you can be of opinion that this licentiousness is fit to be tolerated, according to the old and established laws of this country; if you are of opinion that the fact is not proved upon the defendant in the manner in which it is stated by the witnesses; it will be your duty, your oaths will bind you to acquit him: but if the fact should be proved, if it should stand as clear as to my judgment and apprehension it now stands, you will be constrained by the same necessity of duty, and by the additional sanction of an oath, to enter tain exactly the opinion of it which I have found myself constrained to entertain. I have no wish (I did not know Mr. Horne) I have no wish to prosecute any one individual; nor have I been desired, if I had such a wish, to prosecute him. Aud I hope I may add, that no desire could have compelled me to prosecute a man whom I myself had not thought guilty, notwithstanding any thing that has been said on the contrary side. I go upon the evidence as it is in my possession; I go upon the evidence |