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'employment of his troops,' said, that inno. ing, in support of his argument, relied on the ·cent subjects had been inhumanly murdered authority of Mr. Justice Blackstone's Com .by the king's troops, only for preterring death mentaries, it appears that lord Ellenborough
to slavery. Do these words import in their mixed with general expressions of praise others natural and obvious sense, that the king's troops extremely depreciatory of that work. “ He were employed by the act of government, in- would say that at the time of writing his Combumanly to murder the king's innocent sub- mentaries, judge Blackstone was extremely jects ? - There can be no doubt but that the ignorant of criminal law.”_"Blackstone when king's government compreber.ds all the exe- he compiled bis lectures was comparatively an cutive power of the state, both civil and mili- ignorant man, he was merely a fellow of all tary; that he employs all the national force, Souls Col:Pge, moderately skilled in the law. and that his troops are the instruments with His true and solid knowledge was acquired which part of the executive government is to afterwards ; be grew learned as be proceeded be carried op. The introductory part of this with his work."-" There were many things information charges, tbat the subject of the in Blackstone's work wbich, as a lawyer, he writing in the present case was, The troops, was bound to say were mis-statements, ainong • and the king's troops, and the business they them was the proposition to which the noble • bad done.'
lord had referred." Lord Erskine, however, It has been truly said, tbat the king's troops powerfully , vindicated the Commentaries; may, like other men, act as individuals : but . The work sbewed the autbor's deep rethey 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 inforinations ex officio were amounts to this, ibat, in the discourse which part of the ancient law, it was from history and was beld, the words were said of and concern writers of authority which were open to him, *ing the king's government;' the natural in that their true nature was to be traced; from port of them, without any forced or strained bis not baving attended the courts, be might meaning, appears to us to be this; I am speak- not know the modern practice, but he kuew the ing of the king's administration of his govern- grounds upon which such informations had 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 be said, • were for that reason only inhumadly mure 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 which a moaggravate the inbumanity of the act, and con- ment's delay might be fatal; io 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 his noble and learn. those 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 arraigo the work on that account, supposed by the defendant, whetber 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 authority of Mr. constitution of the crime, and therefore not ne- Justice Blackstone's opinions at the time of his cessary to be averred by the record.
death, to that authority, and not merely to the Upon the whole of the case therefore, we are weight of bis opinions when he compiled bis unanimously of opioion, that the record con- lectures, are bis 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-time, and • that it likewise contains all facts and circum- 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, had 6 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 hench for the king, be affirmed, and the record
the dictum of lord Ellenborough in the case of remitted, &c.-(Cowper's Reports, p. 682.)
Dubost o. Beresford, (2 Campbell's Nisi Prius
ture, which was publicly exhibited, but which In the course of the debate July 17, 1812, it appeared was highly defamatory of a gentlerespecting lord Holland's bills relative to in- man and bis wife w bo was the defendant's sister. formations ex officio, (see New Parl. Deb. vol. Lord Ellenborough, C.J. B. R. said " If it was 23, p. 887, 1069, et seq.) lord Holland hav- a libel upon the persons introduced into it, the
law cannot consider it valuable as a picture. “Much doubt has been formerly entertained Upon an application to the Lord Chancellor, by those who wbere most eminently distinguished he would bave granted an injunction against its for their knowledge of the criminal laws of this exhibition, and the plaintiff was both civilly country, whetber any criminal informations and criminally liable for having exhibited it." were lawful. The constructions of Magua
(bave been informed by very high autho- Charta, cap. 29, some apcient statutes, and rity, that the promulgation of this doctrine books of the law, declare and agree, That no relating to the Lord Chancellor's injunction ex- man can be charged, but by indictment or cited great astonishment in the minds of all the presentment.-lo the case of the King aod practitioners of the courts of equity, aod I had Berchet and others, 1 and 2 William and apprehended that this must have bappened; Mary, reported in 5th Mod. 465, and there since I believe there is not to be found in called Prynne's case, sir Francis Wioniugion the books any decision or any dictuni, posterior averred that lord chief justice Hale had often to the days of the Star Chamber, from which said, “That if ever informations came in dissuch doctrine can be deduced, either directly, pute, they could not stand, but must necessarily or by inference or analogy : unless indeed we fall to the ground.'- It is admitted, however, are io except the proceedings of lord Ellenbo that the court of King's-bench in that case beld, rougl's predecessor Scrogys and his asso- that informations lay at common law. ciales, in the case of Heory Care ; in wbich “ The present question therefore will be, Who
“ Ordioatum est quod liber intitulat 'the are the officers known to the law, and deWeekly Packet of Advice from Rome, or the scribed in the law books, as the persons with History of Popery,' von ulteriùs imprimatur whom only this right of exhibiting informations vel publicetor per aliquain personam quamcun- er officio rested ? It may be clearly collected, que.” See the Order in vol. 8, p. 198, in from the authority of the legislature, and the Scroggs's Case. See Henry Care's Case, in law books, that these officers were only the vol. 7, p. 1111. See also, vol. 19, p. 1152. king's attorney-general, and the king's coConcerning appeal of murder, spoken of in p.
roner, to which latter is always added, in such 716, see the cases of Spencer Cowper, vol: cases, the title of attorney also—No act of par12, p. 1106, and Thomas Bambridge, vol. 17, liament, no law book, mentions any other officer,
as having this power in any case, or under any circumstances. From the king's coroner this
power was taken away by the statute 4 and 5 Jo Vol. 16, which is just published, of the William and Mary, cap. 18, and was then left New Parliamentary History (p. 42.) it appears in the attorney general only.-Serjeant Have that the attempt at the time of the Revolution kins in his second volume of Pleas of the Crown, to take away Informations in the court of tol. 268, observing upon that statute's taking King's Beuch, (see p. 678) was mentioned by away, this power from the king's coroner and Mr. Nicholson Calvert in his speech on March attorney only, says, from whence it follows, 4, 1765, in the House of Commons, upon that informations exhibited by the attorney moving for leave to bring in a Bill for the general remain as they were at common law. relief of his Majesty's subjects, touching Infor- “Such informations can only be exhibited in mations in the King's-bench, by and in the the court of King's-bench, of wbich court the name of his Majesty's Attorney-General.' king's attorney general and the king's coroner
On the writ of error in Wilkes's Case, (See and attorney, commonly called the master of Vol. 19, p. 1126) in support of the first error the Crown-office, are officers upon record, and assigned, viz. “ That it does not appear by the bave their known seats and places there as such. said records, that the said sir Fletcher Norton, “ Sir Bartholomew Shower, in his Reports knight, by whom the said informations against fol. 114, in the same case above mentioned in 5 the said John Wilkes were exhibited, had any Mod. argues and observes, upon the statute 31 lawful power, warrant, or authority, according Elizabeth, cap. 5, and its proviso id sect. 3, proto the law of the land, to exhibit the said in- viding “ That that act shall not extend to any formations in the records aforesaid specified; such officers of record as bave, in respect of and, therefore, that the said informations are their offices, theretofore lawfully used to exnot sufficient informations in law, whereon to bibit informations,' that it is the judgment of convict the said Jobn Wilkes of the offences in parliament, that there were officers to exhibit and by the same informations charged upon ihem, and ibose that are meant must be the athim, and to ground the aforesaid judgments torney and bis deputy the coroner, for l-know, against himn," the following reasons were al. says be, no other. It may be thought that sir. leged in bis printed Case, sigoed by his counsel Bartholomew Shower is inaccurate in calling (Glynn and Davenport.)
the coroner deputy to the attorney, because the "]. Because the said informations are ex- coroner bas a superior seat in the court of hibited and filed by the said sir Fletcher Nor- King's-bench to ihe attorney.-But sir Barlon, as his Majesty's Solicitor General, ex officio, tholomew Shower must be understood to speak when, by virtue of such his office, he had no of the corouer, as deputy only in this instance, general authority so to do.
be not having equal power with the attorney " ]I. Because it does not appear, that he bad over the information when exbibited; for the any special authority so to do.
coroner cannot put a slop to it even though he
should have the king's warrant under bis sign claimed or exercised the power ; and as he apmanual for the purpose ; and yet the attorney- pears to have had no warrant or authority general can, by virtue of his office, stop it at whatsoever to act in this instance as attorney once by a noli prosequi, which appears by the for the crown; it is humbly submitted by the case of the Kiog v. Benson, 1 Vent. 33. Sir plaintiff in error, that the informations in quesBartholomew Shower, fol. 120, says further, tion were filed without any lawful authority, That in case of malicious prosecution, po action and for that reason are fundamentally bad and Jies against the attorney or coroner, any more void, so as not to warrant any judgments upon than against a granil juror or prosecutor; and them against the plaintiff in error.” the reason given for it is, because they are On tbe part of the crown it was said io an. upon their oaths, and so says he, they (mean swer, “ That an information for an offence is a ing the attorney aud coroner) are bere as offi- surmise or suggestion upon record, ou behalf cers upon record ; and fol. 122, he says, the of the king, to a court of criminal jurisdiction, way of apprizing the Court is, by dedit curice and is, to all intents and parposes, the suit of bic intelligi et informari' before any process, the king; and that it would be difficult to aswhich is done by a sworn officer biled of sigo a reason, why his majesty should not have record.
equal liberty with the subject of commencing “If it be coatended, that during the vacancy and prosecuting his suits, by those persons of the office of attorney general, bis authority, whom he thinks fiy to confile in and employ. in this respect, devolves upon the solicitor ge. That the attorney and solicitor general are inneral; it is answered, that no law book or ju- vested, by their offices, with general authority dicial deterinination warrants that argument to commence and prosecute the suits of the It is admitted that there are some modern in-crown: it is true, the attorney general, as the stances in the rolls of the Crowo-office of in- superior officer, has the direction and control formations filed by the solicitor general, ex of bis majesty's prosecutions, in which the officio, some of which describe the vacancy of solicitor general seldom interferes; but it is the office of attorney general, as if that was equally true, that during the vacancy of the the circumstance from which the solicitor ge office of attorney general, all the suits of the neral derived his authority, and raised to him- crown, both criminal and civil, are commenced, self this power. But as ihe others are silent prosecutel, and carried on by the Sulicitor Geabout such vacancy, they must prove a general neral. That at the time when these informaoriginal authority, or nothing; because if a tions were filed against Mr. Wilkes, the office special authority is to give the title, it must by of attorney general was vacant, and consethe rules of law be set forth in the record, for quently the solicitor general was the proper nothing out of the record can warrant the judg- officer to exhibit them. But it is said, that the meut upon the record. There does not appear fact of the vacancy ought to appear upon the to be one instance of a litigation, or judicial record : the only pretence for such an averment opinion, concerning such informations filed by is to inform the court of the vacancy, as an inthe solicitor general.
ducement to receive the information from the " It appears upon the records, that the solicitor general; but there is no necessity for attorney general became the prosecutor of the that intelligence. The attorney general is, in present informations, before the judgments truth, an officer of and has a place in the court were given. But no adoption afterwards, by of King's-bench, and the Court will take notice the attorney general, of these illegitimate of the vacaucy of the office; and there are offspring can sanctify their birth. If the infor- inultitudes of instances of suits commenced and mations were bad when they were filed, no sub- prosecuted by the solicitor general on behalf sequent act whatsoever could make them good. of the Crown, without any averment or notice
* Wherefore, as the legislature bas not sub- taken of the vacancy of the office of attorney stituted, nor meant to substitute the solicitor general. But if the circumstance of an inforgeneral, or any other person or persons, in the mation being filed by the solicitor general furroom of the coroner, from whom they took this nished any real ground of ohjection to the propower, or in the place of the attorney general, secution, yet it was conceived, that the plaintiff during the vacancy of that office, as it was al in error was now precluded from availing himways in the power of the king to supply that self of it; it could at most amount only to an vacancy at any moment he pleased ; as the irregularity, and the remedy must have been legislature has left the attorney general the by application to the court to bave the informaonly kuown officer in law, authorised to exhibit tion taken off the file, or the proceedings stayed. criminal informations ex officio; as the solicitor It could never be a cause of demurrer, or of general is no sworn officer of the court of arrest of judgment, or a ground of error; and King's-bench, either filed of record, or other. Mr. Wilkes, having pleaded to the offence, had wise ; as all the law-books are consistently silent, waived any advantage of that irregularity. abont any power lodged in him for such pur. Besides, the solicitor general having, during pose; as this power has of late time only been the suit, been appointed Attorney General usurped by the solicitor general in some mo- adopted the information, joined issue with the dern instances, and those too varying in their plaintiff in 'error, and prosecuted the suit to a form,as if he did not know on what ground he conviction.”
553. The Trial of John ALMON, Bookseller, upon an Information,
filed er officio, by William De Grey, esq. his Majesty's Attorney-General, for selling Junius's Letter to the King: Before the Right Hon. William Lord Mansfield, and a Special Jury of the County of Middlesex, in the Court of King'sBench, Westminster-Hall, on Saturday the 2d day of June,
10 George III. A.D. 1770. [Taken in Short-hand.*] Copy of an INFORMATION, filed Ex-Officio by, into the utmost dishonour and contempt, and to
WILLIAM De Grey, esq. his Majesty's At- poison and infect the minds of his majesty's torney General, against John ALMON, subjects, with notions and opinions of our said
Bookseller, for publishing a Libel. lord the king, highly unworthy of our said Aliddleser, Filed Hilary Term, 10 Geo. 3.
lord the king, and of that paternal love and
concern which he bath always showed and INFORMATION sets forth, That John expressed for all his subjects, as if our said Almon, late of the parish of St. James, lord the king bad unjustly taken a part with within the liberty of Westminster in the some of bis subjects against others, and had connty of Middlesex, bookseller, having no unjustly prostituted the measures of his gotegard to the laws of this kingdom, or the vernment to gratify personal resentment; and public peace, good order, and government also, thereby as much as in bim the said Joba thereof, and most unlawfully, sediuously, and Almon lay to alienate and withdraw from our maliciously contriving and intending by wick. said lord the king that cordial love, allegiance, ed, artful, scandalous, and malicious allu- and fidelity which every subject of our said lord sions, suppositions and insinuations, to mo- the king should and of rigbt ought to have and lest and disturb the happy slate, and the shew towards our said lord the king; and also, public peace and tranquillity of this kingdom, most uplawfully, wickedly and maliciously conand most insolently, audaciously, and unjustly triving and intending, by wicked, artful, scandalto asperse, scandalize, and vilify our said pre- ous, and malicious allusions, suppositions and sent sovereign lord the king, and to represent, insinuations, to traduce, scandalize, and vilify and to cause it to be believed, that our said so- the principal officers and ministers of our said Vereign lord the king had by his measures of lord the king, employed and entrusted by our government lost the affections of his subjects said lord the king in the conduct and managein that part of Great Britain called England, ment of the weighty and arduous affairs of this and jo Ireland, and in his dominions of Ame- government, and to represent, and cause it to rica, and brought the public affairs of this king- be believed, that said principal officers and mi. dom into a most distressed, disgraceful, and nisters had violated the laws and constitution Jamentable state and condition ; and also, most of this kingdom, and adopted weak, oppressive, unlawfully and maliciously contriving and in and infamous measures in the administration tending to represent, and cause it to be believed, of the public affairs of this kingdom, and had that our said lord the king bad bestowed pro- brought distress and misery upon the subjects motions and favours upon his subjects of that of this kingdom; and thereby to weaken and part of bis kingdom of Great Britain, called diminish the public credit, power and authoScotland, in preference to bis subjects of that rity of the government, and also, as much as in part of Great Britain called England, and bim the said John Almon lay, contriving and thereby to create groundless jealousies and intending to asperse, scandalize and vility the voeasiness in his majesty's subjects of England, members of the present House of Commons and also most unjustly to represeut, and cause of this kingdom, and to represent them as an it to be believed, that our said lord the king had abandoned, profligate set of men, who had arbibestowed promotions and favours upon one part trarily invaded the rights of the people, violated of his said majesty's army, commonly called the laws, and subverted the constitution of this the guards, in preference to another part of his kingdom, and also as much as in him the said army, commovly called the marching regi- John Almon lay, to move, excite, and stir up ments, and thereby to create groundless jea- the subjects of our said lord the king to insur: lousies, uneasiness, and mutiny, in that part of rection and rebellion against our said Jord the bis army called the marching regiments, and king, be the said Joho Almon, upon the first to bring our said Jord the king and his adminis. day of January, in the 10th year of the reigo tration of the government of this kingdom, of our said present sovereigo lord George the
3d, by the grace of God, of Great Britain, * Priuted for J. Miller, in Queen's. Head- France and Ireland, king, defender of the faith, Passage, Paternoster-row, 1770.
and so forth, with force and arms, at the parish
of St. James aforesaid, within the liberty of correct the error of your education. Westminster aforesaid, in the county of Mid still inclined to make an indulgent allowance dlesex aforesaid, unlawfully, wickedly, sedi, for the pernicious lessons you received in your tiously, and maliciously did publish, and did youth, and to form the most sanguine hopes cause and procure to be published, a most from the natural benevolence of your disposi. wicked, scandalous, seditious, and malicious tion. We are far from thinking you capable libel intituled, The London Museum of Po- of a direct, deliberate purpose to invade ihose Jitics, Miscellanies, and Literature, in wbich original rights of your subjects, on which all said libel of and concerning our said present their civil and political liberties depend. Had sovereign lord the king, and of his administra- it been possible for us to entertain a suspicion so tion of the government of this kingdom, and dishonourable to your character, we should also of and concerning the public affairs of this long since have adopted a stile of remonstrance kingdom, and also of and concerning the prio very distant from the humility of complaint. cipal officers and ministers of our said lord the The doctrine inculcated by our laws, that the king, employed and entrusted by our said lord king can do no wrong, is admitted without rethe king in the conduct and management of luctance. We separate the amiable good. the weighty and arduous affairs of this govern- natured prince from the folly and treachery of ment, and also of and concerning the members bis servants, and the private virtues of the inan of the present House of Commons of this king- from the vices of bis government. Were it dom, are contained (amongst other tbings) di- not for this just distinction, I know not whevers, wicked, scandalous, seditious, and mali-ther your me -y's (meaning majesty's) concious matters (that is to say) in one part thereof dition, or that of the English nation, would deaccording to the tenor following, to wit, “ Ju. serve most to be lamented.
I would prepare pius's Letter to the **** (meaniug our said your mind for a favourable reception of truth, lord the king). When the complaints of a by removing every painful, offensive idea of brave and powerful people are observed to en. personal reproach. Your subjects, Sir, (again crease in proportion to the wrongs they bave meaning our said present sovereign lord the suffered, when, instead of sinking into subinis king) wish for nothing but that as they are rea. sion, they are roused to resistance, the time sonable and affectionate enough to separate will soon arrive at which every inferior consi- your person from your government, so you deration must yield to the security of the so- (again meaning our said present sovereign ford vereign, and to the general safety of the state. the king) in your turn should distinguish beThere is a moment of difficulty and danger, at tween the conduct, which becomes the permawhich flattery and falshood can no longer de- nent dignity of a k-g, (meaning king) and ceive, and simplicity iiself can no longer be that which serves to promote the temporary misled. Let us suppose it arrived. Let us interest and miserable ambition of a minister. suppose a gracious, well-intentioned prince, You ascended the throne with a declared, and made sensible at last of the great duty be owes I doubt not, a siocere resolution of giving uni. to his people, and of his own disgraceful situa-versal satisfaction to your subjects. You (again tion; that he looks round him for assistance, meaning our said present sovereign lord the and asks for no advice, but how to gratify the king) found them pleased with the novelty of wishes, and secure the happiness of bis subjects. a young prince, whose countenance promised In these circumstances it may be matter of even more than his words, and loyal to you pot curious speculation to consider, if an bonest only from principle but passion. It was not a man were permitted to approach bis king, in cold profession of allegiance to the first mawhat terms would he address bimself to his gistrate, but a partial, animated attachment to sovereign. Let it be imagined, no matter how a favourite prince, the native of their country. improbable, that the first prejudice against his They did not wait to examine your conduct, character is removed, that the ceremonious dif. vor to be determined by experience, but gave ficulties of an audience are surmounted, that you a generous credit for the future blessings he feels himself animated by the purest and of your reign, and paid you in advance the most honourable affections to his king and dearest tribute of their affections. Such, Sir, country, and that the great person, whom he (again meaning our said present sovereign Jord addresses, has spirit enough to bid him speak the king) was once the disposition of a people, freely, and understanding enough to listen to who now surround your throne with reproaches him with attention. Uoacquainted with the aud complaints. Do justice to yourself. Banish vain impertinence of forms, he would deliver from your mind those unworthy opinions with his sentiments with dignity and firmness, but which some interested persons have laboured to pot without respect. Sir, (meaning our pre- possess you.
Distrust the men who tell you sent sovereign lord the king) it is the misfor the English are naturally light and inconstant, tune of your life, and origivally the cause of that they complain without a cause. Withdraw every reproach and distress which has attended your confidence from all parties ; from minisyour government, that you (again meaning ters, favourites, and relations; and let there bo our present sovereign lord the king) should one moment in your life in which you (agaia never have been acquainted with the language meaning our said present sovereign lord the of truth, until you heard it in the complaints king) have consulted your own understanding. of your people. It is not, bowerer, too late to Wben you (again meaning our said lord the