as it is in my power to produce it. If there be any evidence on the other side, and if that is sufficient to refute the imputation which the evidence that I have to produce lays upon him, I shall be as ready to examine that with exactly the same degree of candour, and, I hope, of uprightness, as I have done the present. My duty is done by laying the matter before you. Your duty, I am sure, will be done to your own honour and the support of public justice by the verdict you will give upon the occasion. EVIDENCE FOR THE PROSECUTION. Thomas Wilson sworn. Examined by Mr. Solicitor General.* Sol. Gen. Look at those papers. (The several Manuscripts from which the advertisements were printed in the newspapers. The -witness inspects them.) Do you know whose hand-writing those papers are? They look like Mr. Horne's hand-writing. Do you know Mr. Horne ?-I have seen him write. Do you take these to be his hand-writing? -They are like his hand-writing. I will not upon my oath say that they are his hand-writing; I believe that they are. (The manuscripts of the two advertisements read in court.) Henry Sampson Woodfall sworn. Examined by Mr. Wallace. What business are you?—A printer. Do you print any newspaper?-Yes. What paper?---The Public Advertiser. Mr. Wallace. Look at these two papers (shewing the witness the manuscripts of the advertisements. The witness inspects the manuscripts.) Have you ever seen these papers before ?--Yes. When did you see the first of them ?---About the 7th of June 1775, as near as I can recollect. By what means did you come by the sight of it?--Mr. Horne, the defendant, gave it me. For what purpose?---To publish in the Public Advertiser. Did you accordingly publish it ?---I did. Do you recollect the names of any of them? ---The whole, I believe, of them; I cannot exactly recollect. Did you follow his directions?---I did. Horne paid the bill. For the publication?--Yes. Mr. Mr. Wallace. Look at those news-papers (shewing the witness the Public Advertiser of * Alexander Wedderburn, afterwards earl of Rosslyn, and successively Chief Justice of C. B. and Lord Chancellor. June the 9th, and of July 14, 1775. The witness inspects newspapers.) Are those papers published by you ?----I print that paper, and I suppose they are. Cross-examined by the Defendant. Mr. Horne. I am very glad to see you, Mr. Woodfall. I desire to ask you some questions. Pray what was your motive for inserting that advertisement?---Your desire. Had you no other motive?---1 was paid for it, as the advertisement is paid for. Pray was it by accident, or by my desire, that there should be witnesses to see me write that advertisement ?---By your desire. And did I, or did I not, formally, before that witness, when called in, deliver that paper as my act and deed, as if it had been a bond?--Yes. It is true, I did. Did I not always direct you, if called upon, to furnish the fullest proof that you could give ?--You did, Sir. Now then, Sir, if you please, say whether I have ever written any thing in your newspaper before? Yes, frequently. first remarkable thing that I remember, was How many years ago, do you think?---The something about sir John Gibbons, about his mistaking Easter for a feast or a fast. How long ago is that?-About the year 1768, about the election time. That is about nine years ago?---Yes. Have I at any time desired you to screen me from the laws?--- No. Has not the method of my transactions with you at all times been, that you should at all times, for your own sake, if called upon, give me up to justice?-Certainly; that has always been your desire. Pray, Sir, were you not once called upon by the House of Commons for something that I wrote in your paper ?—Yes, Sir. Do you remember that I did or did not, when I took care to furnish such full proof of this advertisement, give you the reason for it ?—I cannot say I recollect the reason. I will mention it. Whether was this the reason? That in the last transaction before the House of Commons it was pretended they let me off, because they could not get full evidence. Do you remember whether I rehearsed that or not; and said, that if they now chose to take notice of this advertisement, they should not want full evidence?-I do recollect that conversation. You remember that was the reason I gave? -I do. Will you please to look at these newspapers? (shewing several papers of the Public Advertiser to the witness. The witness inspects them). Do you know these news-papers ?I do. Do you believe that you published them?— I do. Look at the dates. I will call them over to you from a list-May the 30th and the S1st; June the 6th, the 9th, the 10th, the 12th, the 673] for a Libel. 15th, and the 16th, 1775?—I have looked at the papers: they are all of my publication: the date of one of them I cannot make out; it is June something. We will go on-June the 21st and the 27th, 1775; then there is January the 11th, February the 8th, February the 7th, the 11th, June the 2d, and June the 30th, 1777 ?-They are likewise of my publishing. Pray, Sir, do you recollect the contents of the paper of May 30, 1775?-No, upon my soul, I do not. You are upon your oath.-I know that indeed. Read that part (pointing a part out); read from "In provincial congress, April 26, 1774," down to that part (pointing it out). Mr. Wallace. The officer should read it; though not now. You will be intitled to read it, when you come to your defence. Mr. Horne. Pray do you know Mr. Arthur Lee?-Yes. Did you ever receive any account from him relative to the persons who were killed at Lexington and Concord?—I really do not recollect. Do you recollect that you ever published his name to an account?-I think I did; relating to his agency for some colony. Look at that, and see whether you remember that, and how you received it? (Witness inspects Public Advertiser of May 31, 1775.)Yes. 1 think I received this from Mr. Arthur Lee. Pray who was Mr. Arthur Lee ?-He is of the bar. I have seen him in Westminsterball. He was there at the trial of Mr. Wright the printer, upon this very affair. I believe he was retained there. Pray was he retained in your cause when you were to be prosecuted for this advertisement?-He was. And why did you retain him? Had you any particular reason?-I presumed he knew more of the subject of the advertisement than I did. Did he ever tell you any thing upon the subject?-We have bad private conversation together as a matter of news. Did he ever tell you he had lodged affidavits with the lord mayor of London ?—He did. Sir, did you ever tell me so?-I do not recollect. Pray when bad you, for the first time, any notice of a prosecution for the publishing of this advertisement ?-About two years ago. Pray did that prosecution go on ?-No. Do you know why?—Yes. I let judgment go by default. The first time?-I was never called upon till last January. It began two years ago; and you were never called forward upon it till last January?-1 think that was about the month. As near as you can recollect ?—Yes. You never were ?-No. | How came you to be an evidence ?—I heard that if I could produce my author, matters might be better for me; and as you had no sort of objection (which you told me at the time) I did of course produce those copies that appeared there to Messrs. Chamberlayne and White, the solicitors for the treasury. Should you at any time, if you had been called upon, have declared that I was the author of that advertisement?-Most certainly; for you desired it. And would have given your evidence?—Yes. Whom was the application made by ?-It was no sort of application at all; I heard of it. By whom?-My brother. You never refused to furnish evidence against the author?-No. You never were applied to, to do it ?—No ; I was not. You have said that I never desired you to conceal me from the law for any thing you published from me. Did you ever receive any letter or message from sir Thomas Mills in your life?—A private letter I have. But did not that private letter relate to the public paper?-Never. Did you never receive any message not to insert any thing in your paper about lord Mansfield's earldom?-No. Upon your oath ?-Upon my oath, to the best of my recollection, I never did. From any quarter ?—No. Sir, were you ever sent for by lord Bute ?— No; I never saw him. Were you not sent for for inserting a paragraph about the king's marriage?—No; I am 1 assure not consulted by the higher powers, you. If I had thought you were, I never should Mr. Horne. I will give you no more trouble. Examined by Mr. Wallace. Please to look at that paper (shewing the witness the manuscript of the advertisement. The witness inspects it). Have you seen that paper before?—I have. When did you first see it?-Mr. Horne delivered it into my hands in my brother's compting-house on the 8th of June, to be inserted in the London Packet and Morning Chronicle; both which papers I print. Was it accordingly inserted in those papers? -It was. Look at those papers (shewing the witness several papers of the Morning Chronicle and London Packet. The witness inspects them). Are those papers published by you?-They Your answer is of the quickest. Had you not better hear the question?-I presume you meant to ask the same question you put to my brother; as you laid an emphasis upon the word 'you.' Did you ever receive any letter, or message, or desire, or request, of any kind, in any manner, not to insert any thing in your paper relative to lord Mansfield's earldom, on your oath? -On my oath, I never received any letter. Message, or request, of any kind, in any mauner, Sir, from sir Thomas Mills, I ask you? No, I think not. You must be a little more positive, because my question will not admit of a think.'-I do not recollect I did. Then take a little time.--I don't recollect that I did. I know very well, that some person or other, once, mentioned it to me. That is an application. To mention it to you is a stronger application than a letter.I had some conversation about it. I don't recollect that I was desired not to publish it. Was it to request you not to insert squibs or any thing?-I recollect I did insert it. What?-Lord Mansfield's promotion to an earldom, · What was that application? That you 'would' insert paragraphs about it, or would not' ?-It was a conversation, not of the nature of business; nor any express desire to me; some conversation, as might be between two friends. Upon your oath, you had never any application to omit inserting any thing of that kind? Upon my oath, I don't recollect that I had. Nor have you ever said that you had?-If I don't recollect that I received any application to keep out any thing relative to it, I conse quently cannot have spoken of it. Did you, or did you not, ever speak of it?— Not that I am aware of. But you will not swear positively you never did?—I had no direct application to me to keep out any thing. Direct'-My question was 'direct' or 'indirect,' or of any kind.-I mean to answer "direct.' I don't recollect that I was ever applied to, to keep out any thing; or that I ever said I was applied to, to keep out any thing. More than that you cannot recollect?—No. [The Associate read the advertisements in the several papers that had been proved and put into court on the part of the prosecution.] Alt. Gen. My lord, we have done. Mr. Horne. Gentlemen of the jury; I am much happier, gentlemen, in addressing myself to you, and I hope and believe I shall be much more fortunate as well as happy, than in addressing myself to the judge. I have been betrayed, gentlemen, I hope, into no unseemly warmth; but yet into some warmth. I have felt myself like a man first put into hot water; but I have now been long enough in it to be perfectly cool. And, gentlemen, some small allowances might have been made for me by my judge who presides upon this cause, when he considers the peculiar disadvantages in which I stand here before him. Gentlemen, I am an absolute novice in these matters; and yet opposed to gentlemen some of the most eminent in their profession, and some of the most conversant in practice. But that is not all; I have a farther disadvantage. I stand here, gentlemen, before you, a culprit as well as a pleader; personally and very materially in-. terested in the issue of the cause which I have to defend. And every gentleman in the court must know-(some perhaps by their own ex-, perience, all by the reason of the thing)-how very different is the sportful combat with foils from that which is seriously disputed with unbated swords; and how frequently the fluttering of the heart, in the latter situation, has been known to enfeeble the steadiest wrist, and to dazzle the clearest and most quick-sighted eye. Gentlemen, I have read even of counsel, eminent in their profession, conversant in practice, approved and applauded for their ingenuity in the defence of others, who, when they came to stand in the same situation in which I now stand, have complained to the Court (and met with an indulgence which I have not), they have complained to the Court of the same disadvantage which I now feel. Gentlemen, I have listened to Mr. Attorney-General's decla mation with as much patience, and, I believe, with much more pleasure, than any one in the court. That pleasure I do acknowledge was personal to myself; arising from the futility of the support which Mr. Attorney-General has attempted to give to the serious charge which he has brought against me; a pleasure, however, mixed with some pain, when I consider the wretched times at which we are arrived; when a gentleman of his natural sagacity is, I own, justified by recent experience for supposing it possible to obtain from a London jury a verdict for the crown, upon a mere commonplace declamation against scandal and indecency in general, without one single syllable of reason, or law, or argument, applicable to that particular charge which he has brought against me, and which you are now upon your oaths, to decide. Gentlemen, you know, as well as I do, that I am personally and in all respects an absolute stranger to every one of you. I am glad of it. I do not expect or desire from you either friendship, or favour, or indulgence, It is your duty to do impartial justice, and I only request your attention. I began with requesting it; and I requested your attention, that you may be able to judge for yourselves, and that the verdict which you shall givepersonally as it respects myself it is totally indifferent to me-but that the verdict which you shall give, may be really your own, as it ought to be, and not the judge's. That is the only thing I request of you, and I request it, because it is your duty and your oath. Gentlemen, as for the charge that is brought agaiust me, you cannot be ignorant that I am charged with the only unpardonable crime | which can, at this time, be committed. I am accused of a libel. Murder and sodomy, you know, have in these our days often found successful solicitors: and the laws against popery (though unrepealed and in full legal force) are, when resorted to, thought, by the magistrate who presides here, too rigorous to be suffered to have their free course against a religion so destructive of the civil rights of mankind, and so favourable to absolute and arbitrary power. But whilst that has been favoured beyond the laws, nothing beyond the laws has been thought rigorous and severe enough against the charge of libel. Murder, attended with the most ag gravating circumstances, has been repeatedly pardoned; and treason, the blackest treason, against the family on the throne, and (what is of much more consequence to us than any family) against the free constitution of this country, has been not only pardoned, but taken into favour; and the estates of convict traitors have been restored to them and to their families.* Whilst mercy and forgiveness, gentlemen, have been thus flowing unnaturally in a full stream over the highest mountains of iniquity, has any one of you ever spied the smallest rivulet descending towards the valley of the libeller? Has any man charged with a libel (and what has not been charged as a libel?)-has any man so charged ever yet met with mercy? Gentle men, I do not call back again these things to your remembrance in order to arraign them; that is not my present business: I only mention them to gain from you, the only thing I wish, your attention. You will be pleased then, gentlemen, as one motive for your attention, to remember the nature of the crime charged. Gentlemen, if the nature of the crime and the rancour with which it is pursued, if that affords a strong reason for your particular caution and care and attention in this sort of trials, a much stronger reason indeed will be afforded you by the nature of the prosecution. It is called an information ex officio. The term er * Mr. Horne's mention of the restoration of the estates of convict traitors alludes to the Case of general Fraser, eldest son of lord Lovat who was executed in 1746. See the proceedings against him, vol. 18, p. 530. See, also, stat. 14 G. 3. c. 22; 24 G. 3, stat. 2, c. 57; 28 G. 3, c. 63. In the celebrated Letter,' which has been ascribed to Lord Chancellor Camden, and also to Mr. Solicitor General Dunning, concerning Libels, Warrants, the Seizure of Papers, and Sureties for the Peace or Behaviour, &c. by the Father of Candor,' are alleged with great ability many objections against the Attorney General's Information er officio, of which the author says, "It is a power, in my apprehension, very alarming; and a thinking man cannot refrain from surprise, that a free people should suffer so odious a prerogative to exist. It has been, and may most certainly be again, officio is a very gentle expression for a very harsh thing. Ex officio (the gentleman well explained it to you, when he boasted of bis conscience, and his integrity, and duty; for it the means of great persecution. In truth it seeins a power necessary for no good purpose, and capable of being put to a very bad one. For, although a man may doubt whether a grand jury in times of violent party would always find a bill of indictment or present, yet there can be none but that a court of King'sbench would grant an Information, wherever it could, by any administration, be applied for with the least foundation." And in another place he says, "The prerogative which an Attorney-General assumes of filing an Information against whomsoever he pleases, is certainly a reproach to a free people; and if the regular information awarded upon special motion by the King's bench were likewise taken away, I do not think the constitution would be injured by it: in which case the old common law method of indicting for a libel, as a violation of the peace, would be the means that every body must resort to; and in my opinion a grand jury are very competent and the properest judges, whether any publication be destructive to the welfare of the state or not." And for this last clause which I have cited, he refers to the valuable treatise upon Grand Juries, called, The Security of Eng lishmen's Lives,' attributed to Mr. Sommers. The attempt at the time of the Revolution to take away Informations in the court of King'sbench, is noticed in the Letter concerning Libels, Warrants,' &c. ; but I had not the passage in my recollection when I wrote the Note to the Case of sir William Williams, vol. 13, p. 1569. In the case of Rex v. Mary Jones and another, mentioned in that Note, the vexatious operation of the Attorney-General's Information was, that it caused two poor Welsh persons, convicted of a minor offence against the revenue laws, to come from the principality to the bar of the court of King's-bench at Westminster, in order to receive judgment, which would have been passed upon them in their own neighbourhood, if the proceeding against them had been by indictment. In the case of Philipps and others, Trin. 4 G. 3. 3 Burr. 1564, lord Mansfield declared, that the Court would never grant an Information upon the application of the Attorney-General, in cases prosecuted by the crown; because the Attorney-General has a right himself er officio to exhibit one: and in the same case he said, "the Attorney-General may, if he thinks proper, summon the parties to shew cause, why an Information should not be exhibited, before he signs it." And in the case of the King v. William Davis Phillips, esq. Pasch. 7 G. 3. 4 Burrow, 2089, De Grey, Attorney-General, having (on the part of the crown) moved for a rule upon the defendant to shew cause, why an Information should not be granted against him, the is certainly so)-er officio means, that which he does from a sense of duty. If in this you consider only just what meets the ear, there is no harm in it; it is a good thing: duty is a good thing. But if you examine the real force and consequences of the term, as here applied, you will find it to contain every thing that can be imagined illegal, unjust, wicked, and oppressive. For my own part, I am astonished that any man, at this time of day, exercising such powers as are not according to law, and are much less according to reason, should talk to you, with an open face, of integrity, of bonour, of duty, of conscience; and that, instead of aggravating and shewing you in what the charge which he has brought against me, in what my crime consists, he has employed half his barangue in boasting of his own character. If any man in the court who had not known that I was the defendant had come in at the time that that gentleman was talking of his integrity, his conscience, and his duty; I ask, would he not immediately have concluded that Mr. Attorney-General was the defendant then making his defence? He must. Let the gentleman's integrity and honour be as great as be tells you it is; what has that to do with me? What has that to do with the charge which he has brought against me? except indeed this; that, baving nothing really to charge me with, he sets up his own great, immaculate character in opposition to mine; that you may give a motion was rejected, upon the ground, that if the Attorney-General thought it right, that an Information should be granted, he might grant it himself; if he did not think so, he could not expect the Court to do it: and lord Mansfield said, "If the Attorney-General should have any doubt about the propriety of it, he might send to the person complained against, to shew him cause why he should not grant it." With respect to an Attorney-General sending to a person to shew cause why an Information should not be filed against him, see what was said in parliament upon the conduct of the Attorney-General of Ireland in the case of Fitzpatrick, A. D. 1812, 23 Parl. Deb. pp. 996. 998. 1081. 1086, 1087. 1111, et seq. For more concerning the Information er officio, see the Case of sir William Williams, vol. 13, p. 1369. See, also, 16 New Parl. Hist. pp. 40. 1127. 1175. Mr. Hargrave has, more extensively than has yet appeared in print, investigated the subject of the Information ex officio, as well as that of the examinableness of commitments by a House of Parliament or Court of Justice, for contempt or breach of privilege. It is to be hoped that the result of his investigations may be made public. See, also, distinctions as to the rights of the Attorney-General in matters of practice, when he proceeds for the crown as formal prose cutor; and when he proceeds for the crown as actual prosecutor, in 2 Stra. 216, (cit, vol. 17, p. 211), and 4 Burr, 2458. verdict against me, because he is a man of honour, an uncorrupt man, a pure man of integrity, and would not charge me, if he did not think me guilty. Let him think what be pleases; if you do not think me guilty, I care very little what he professes to think. I know that he is manly enough; and I honour that part of his character. He bears a man's heart in his bosom, and (though his office has made him hold the language he does) I defy him not to respect me. I know he does. I am sure of it. Gentlemen, I said that er officio contained every thing that was illegal, unjust, wicked, and oppressive; and I will prove it to you. Ex officio-(a little specimen of it you have seen)— ex officio means a power to dispense with all the forms and proceedings of the courts of justice, with all those wise precautions which our laws have taken to prevent the innocent from being oppressed by exorbitant and unjust power Gentlemen, I was thrown off my guard. 1 own I was. I had prepared an argument; wlrich I believe his lordship perceived: he therefore granted me what I intended to have inforced; and, having granted it to me, that grant was made use of to prevent me from gaining any argument in answer, of any kind. You must have taken notice of it; it is your duty to take notice. Juries have been too much considered as men out of court; and when an application has been made to the judge to determine upon a point of law, the jury has been considered as having nothing to do with the matter. No more they have, indeed, to decide it. But the jury has this to do with the matter: they are to make a true deliverance; and they will see and will judge whether the defendant has justice done him or not, even in the practice of the court. I know nothing of the law: I am not sorry for that: this is not a question of law; and I am bappy to have Mr. Attorney-General's authority to say, that it is "the plainest, the simplest question; and that it was too obvious for him to foresee a difficulty in it." He said, it was "the plainest of all the plain and simple matters that were ever laid before a court;" and being so, you are the best judges of it. And indeed the nature of a libel always makes a jury the best judges of it; for a libel (if it be so) is intended for mischief: it must therefore be intelligible to the people, or no mischief could be produced by it. If a man writes a libel that a common jury could not understand, (and you are a special jury, gentlemen) he must fail in his design. Observe then, gentle men, this advertisement is the plainest and simplest of all the matters that were ever laid before a court in which the Attorney-General was concerned: and in these two years and a quarter that he has had to bring it to trial, he has not been able to see a difficulty in it; and yet he has had a special jury to determine it : a common jury could not be left to determine it: and that I will explain to you hereafter, I |