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far for you.
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
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- hension, as plain and evident now as it was the Attorney-General acquiesces in it, I have no part of my business to 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
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. Attorfore you. But, my 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 veral in bis naine, 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, 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 bave ng to make my objection. I am sure 'should other joterest but in the obtaining of justice, have been permitted to make it, because the impartial justice. And it it was possible, my arguments which 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. Atiorney-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 that 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 any other person, my equal or my refresh my memory with what I have written inferior. And yet, my lord, I must ackoow. dowo). 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 approred rules of the court are so, only James the secood, that man (tor be never was because they are reason, and reason approved for one 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, I 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 Attorney-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 uocourtly)-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 eviderice left it; that are now again revived and fostered ; and then the defendant's answer closes the plead. ing. 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 that 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 Jorúship say it in other cases) are parts of the case a private prosecutor or private plaintiff Jaws of the land. 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 pow 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; ihere 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 distiu- usage of the bar are received. Two gentle. guish the innocent from the guilty, and to pro- inen 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 nothe Attorney-General claims, I think I could thing new to make it necessary to reply: tben spend a day in shewing how'many received they don't do it; but if a question of law was legal maximis and truths it violates: for truth is started, which nobody thought of in the beginof such a nature that it has a thousand branches ving, they do it then: then they have a right issuing from it; and falshood, let it be as care. to reply, and must reply, for the sake of jusful as it can, will run against some one or other tice. And therefore I apprize Mr. Horne that the 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 this claim of Mr. Attorney-General, your lord of Mr. Attorney-General for him. My lord, ship interfered hastily, and saved Mr. Attorney you now take from me what you give to him; General the trouble of vindicating his claim. you take from me that right ot reply which by Your lordship saved him from the embarrass- the practice of the court I have, whilst you ment he would then have found, and which I give to bim that right of reply wbich by the am confident he will now find, 10 produce one practice of the court be has not. I have a right single argument of reason or justice in behalf | io 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 his 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 be 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, tbe very ingenious coun. claim bimself, if there is any in it. My lord-sel-(I beg the gentleman's pardon for at- Lord Mansfield. Sir--hear---Your proper tempting to distinguish him by that epithet ; reply to the julgment I have given is a motion 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 Jord, 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 him 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, wbich I did exercise in con- dict will be set aside. You will have a remedy. demping the action of the king's troops (wbich Mr. Horne. O, my lord, I have already suf; 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.t 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 ?-I am sure you have not proper by argument and reason on the decision forgotten that I bave, once before in my lite, 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 have a right to reply. I sball 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. At-
This has nothing to do with the cause ; between Attorney-General. I beg leave tn ohject 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 bistory 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 lord; but it cost me tion to your lordship my own 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; an end of going out bad, false verdict; because I was told by iny of the cause.
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. ? 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 let prive the prosecutor of replying, if he sees those words go as proved, thanı, 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 bud he bad that objection at this time, your lordship, kindly right without my calling evidence; that is, I stops me, and takes it for granted. Then, at am told so by your lordship, 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, pot 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 ship 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 maxims of law. Now, in that case I mentioned much less should I take notice of that sort of at Guildford, I suffered words to go as proved, slander which, affecting to point itself, only wbich I could have disproved—and there are disgraced itself in the manner of that affectagentlemen in court now who know the fact, tion. For my own part, I should think I was and would have been the evidences—I suffered stooping exceedingly below that character and words to go as proved, because I would not that situation in the world which I hope I am give the prosecutor a right to reply. Your entitled to, if I were to set myself to defend my Iordship directed the jury to find a verdict for own peculiar part from any aspersions that have the words; and your lordship said, if your die been thrown upon me. It is the duty of my rection was mistaken (because my counsel had office to prosecute with integrity those whom, argued that the words were pot actionable) your according to the best of my judginent, I believe lordship told my counsel-(he published a to be fair objects of prosecution. It is the duty pamphlet afterwards :- he was much burt at of my office, as far as I can govern tbat duty, it) you said that what be had advanced sur- to conduct the prosecution with the utmost prized you; that it was new law; such as you clearness and the fullest honour. And if I have had never heard before-(he was much hurt at taken a part in this, or in any prosecution that it; he felt it: he was hurt at your lordsbip's any man can fairly stand forth, in a manly style, declaration : he published a pamphlet after and challenge directly and pointedly, let ii be wards addressed to your lordsbip, which I am challenged, and let me be called upon to answer sure you must remember). - My lord, in con- it. But to be told that I stand here ready to sequence of your lordship’s direction, a verdict take all inander of advantages, fair or unfair, was given against me for 4001 ; and you said, against the delinquents whom I call into jasif you were mistaken in your directions, that I | tice, it is a sort of aspersion below refutation; had a remedy ; I need only appeal to the court: , and I will not stoop to take notice of it, uuless I had a remedy. What sort of a remedy? The it should condescend upon some particular act expence of the remedy was almost equal to the in my conduct that makes me an object of that verdict. The verdict was set aside, that is species of animadversion. Whether I am or true; but your lordship knows that a verdict whether I am not to reply in such a cause makes the defendant pay bis own costs. I as this, it is, in this moment of it, pot so should bave had the costs, if the verdict had much irregular to advance it, as impossible to pot been given against me. What sort of re- foresee. When I read over the case, when I medies are these, that are worse than the fair consider the effect of it, I cannot foretel the honest punishment that can be inflicted upon slightest occasion 10 trouble you by way of tbe charge? Therefore I lo intreat that your reply : for of all the plain and simple matters Jordsbip will not send me to remedies which I that ever I hall occasion to lay before a court hardly koow bow to take; especially as I have of justice, there is the least degree of complialways found that such kind of remedies from cation in that which I am about to state to you your lordship are like giving a man a wound, pow. and then telling him where he may find a This is an information brought against Mr. plaister : it is bot a thing that I should wistí to Horne for being the author and the original do, nor would your lordship like to suffer it. publisher of this libel. The crime that I put And as your lordship says that po law has been most upon is that which I stated last, that he quoted to prevent his reply, 1 intreat that I was the original publisher of this libel. It is may bear from Mr. Attorney-General, or from in that respect that his crime appears to me to yourself, that law that gives him a right to differ most from those that have been called reply.
into justice before. The circumstance of bis Lord Mansfield (to the Attorney-General). name being printed at the bottom of the libel Go on with the trial.
was an additional aggravation in this respect, Mr. Horne. I shall hear no reason then because it seemed to imply a bolder insult upon from either of you? Well! if so, I must sub- manners and decency, and the laws of the mit under it.
country, than a simple publication of a libel
witbout that name would have been. It seemed Attorney General. My Jord, and gentle to imply this, because, while that name lay hid men of the jury, there is nothing in this case behind the printer of the paper, the stoutest (unless the bebaviour of the defendant should champion for sedition could not have defied the constitute that something) that can make it at laws with greater security; for, though it stood all different from the most ordinary case of a in capitals upon the front of many thousand plain delinquent in a most gross offence being pages, yet it was as inscrutable and impossible brought before a court of justice. I have looked for me to follow, as if the name had not apround with a degree of examination to see if I peared upon the paper at all. For the rest of could see whether there was one amongst the it, I put it upon the publication, chiefly be. numerous bystanders that I saw here, who bad cause that seems to be the whole ohject and conceived a favourable impression from so ex. drift of the composer of the libel : for as a traordinary an interposition as one has heard composition it is absolutely nothing. I do not to-day. I certainly should not rise to take off mean to speak of it by way of derogation from or repel loose slander scattered about without the parts and talents of the ingenious gentlebeing pointed at any one individual particularly, man (whose parts and talents I never heard 50
much of as I have done to-day) I do not mean where an orderly government prevails, and 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 laws and justice of the country, proclaiming, means of murder, is imputed to the transactions as it were, thus: either punish this libel, or of the government of the freest country now 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 bave that! whereas men must be short-sighted inentertained sufficient malice against this coun. deed, a man must be drivelling like an idiot try; others have, been anxious enough to ex.
that does not see that the maintaining of regucite sedition; but this is writtep 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 anarinsuli upon the laws." Sometimes a libel is chy, and of every man that thinks proper to covered (though thinly covered cuough) with seize them, uncontroled by law? Is that li. the pretence of informing mankind, or of dis berty ? And is there any one by-stander of cussing public subjects for the use of mankind: the most ordinary understanding that hears me here is not even the affectation of giving infor- now speak, that has so gross an understanding mation : bere is not even the affectation of dis- as to imagine that he would be more free if it cussion : but the writer tells you in so many were in the power of any man that thought blunt words (of no kind of meaning in the proper to revile his character, (which is the world but to convey reproach and scandal) question which is now immediately subthat the persons who were employed by thé jected to you) or to injure him in his person or government are guilty of murder; and the fortune, or in any other mander whatever? persons who employed them consequently in. This therefore is not to be coloured, as far as volved in the same guilt. For what is the na. I can foresee, by any kind of argument what. ture of the libel that is published—" King's ever. The vature of the libel is tuo gross to be Arms tavern-At a meeting held during an commented upon; it does no honour to any adjournment” (I do not mean to make any body that has been concerned in making it. observation upon the meeting during an ad- I shall content myself with proving the fact journment) —" a gentleman proposed that a of this paper baving been written, of this paper subscription should be entered into”-(this 1 having been published originally by Mr. conceive to be a device-not a very rich one in Horne; and the conclusion to be made upon point of invention-but a device to introduce that is too obvious a one, and too broad a one, ihat which follows) " a gentleman proposed for me to foresee at least any kind of difficulty that a subscription should be entered into by about it. It was my duty to lay it before you. such of the members present who might ap. 1, charged with the duty of any office, have prove of the same, for the purpose of raising brought it here; it is your duty io judge of it. the sum of 1001. to be applied to the relief of You, charged by the oath that you bave taken, the widows, orphans, and aged parents of our are to determine upon it. If you can be of beloved American fellow-subjects, who, faith-opinion that this licentiousness is fit to be tole. ful to the character of Englishmen, preferring rated, according to the old and established laws death to slasery, were for that reason only in- of this country; if you are of opinion that the humanly murdered by the king's troops."*- fact is not proved upon the defendant in the Murdered by the king's troops! What kind of manner in which it is stated by the witnesses; palliation (justification it is absurd and non- it will be your duty, your oaths will bind you sepse to talk of) but what kind of palliation to acquit him: but if the fact should be proved, can be given to the charging men with the if it should stand as clear as to my judgment crime of murder, by writing against them in a and apprehension it now stands, you will be news paper ? Is it to be laid down for law, constrained by the same necessity of duty, and or a thing to be tolerated in a civilized coun- by the additional sanction of an oatb, to enter. try, that crimes of the most heioous sort shall tain exactly the opinion of it which I have be imputed to men by a public reviler in a found myself constrained to entertain. I have Dew's-paper, who yet dares 'not stand forth as no wish (I did not know Mr. Horne) I have no an accuser? Is that to be tolerated in a civilized wish to prosecute any one individual ; nor have country,- The writing against men that they are I been desired, if I bad such a wish, to prosecute guilty of murder who are not to be accused of bim. Aud I hope I may add, that no desire that crime? Is it to be tolerated in a country could have compelled me to prosecute a man
whom I myself" had not thought guilty, potSume account of this business is exbibited withstanding any thing that has been said un in Stephens's Memoirs of Horne Tovke, vol. 1, the contrary side. I go upon the evidence as Pp. 435, et seg.
it is in my possession; I go upon the evidence