dictment, and declaration, were fynonymous, and meant nothing more than accufation, urging the more equitable mode of proceeding by applying to a grand jury by bill of indictment, and contrafting the different benefits deduced by the fubject, under the different modes of procefs, proving that they could acquire none when proceeded a gainst on ex officio informations, and inferring from the whole of his argument on this head that their origin was oppreffion, and their end injuftice. He afferted, that, armed with this illegal power; an attorney-general might deftroy the liberty, and attack the property of any fubject, obnoxious, either to himself, or to the minifter,. whofe fervant and creature the attorney-general might properly be deemed, as he held his office merely during pleasure, and was liable to dismission whenever the minifter was himself difmiffed, or whenever the minifter was difpleased with him.

He complained of oppreffion in every stage of the bufinefs, and particularly urged, that the ftriking of a fpecial jury was a mere farce; that an attorney-general could try by what jury he pleased; and that from what he had feen on his own attendance at the Crown-office, it might rather be faid, that his was a picked jury than one fairly and promifcuously chofen. He inHe in itanced what had paffed there, but declared he acquitted the mafter of any unfair conduct, laying the blame on the shoulders of the folicitor to the treasury, and of the officers of the fheriffs, who attended on the occafion.

He treated Lord Mansfield frequently in a manner equally cava

lier and extraordinary, nor was he a whit more complaifant to the jury, declaring, he afked them for no favour, that he only defired them to discharge their confciences, and do their duty as honeft men, confidering fully the intention, which was the effence of all criminality, and abiding by their own feelings, without fuffering themfelves either to be threatened, or wheedled out of their privileges. He avowed being the author of the advertisement in queftion, afferted it was no libel, and affigned his motive for publishing it, which was to oppofe oppreffion: that he had always acted on the fame principles; that he advertifed, and caufed to be profecuted, the mur◄ derers in St. George's- fields, in 1768, who were alfo foldiers.

That he had, in fact, as the advertisement was worded, made no charge, neither had he accused the king's troops of murder; but that he did not mean to take advantage of a trifling fubterfuge: he did now make the charge; that he had be fore deemed the affair at Lexington a murder, did then, and would tomorrow, call it by no other name. He told the jury, that, like certain people mentioned in hiftory, who dreffed up their victims for flaughter, fo the attorney-general had dreffed him up in the character of a wild beast, and wanted them to worry him; that his aim was to fhut him out from fociety, and lock him up like a mad dog; but that he defied his malice, and feared not the judges, as he was well aware they would not venture to punish him as they might wish, even if the jury were to deliver him over to their mercy, but that he was prepared to meet more than

they

they dared to inflict in the prefent cause.

With regard to the attorneygeneral's complaint about the quantity of libels daily published, he begged him to put himself in the balance against him, and confider which had been molt libelled? For his part, no man had been more fo; his picture had been fuck up in the print-fhops, with the words, 'The Atheist Parfon,' fubfcribed in capitals. He had been made the fubject of ballads, and the fingers had borne the figure of a fpruce parfon in miniature, on a flick, with a label, on which was written, The Atheist and Macaroni parfon.' His very clothes had furnished wit for the theatre, and he had even once been prefent, and feen himself burnt in effigy.

He offered fome few legal authorities, and quoted many parts of the State Trials in fupport of them. In his attack on the attorney-general, he fhewed no fort of refpect to perfon or place; at one time he declared the House of Commons to be the most corrupt body in any ftate, and faid they were the mi. nister's houfe, who fat between his two brafen pillars, the attorney and folicitor-general, like Jachin and Boaz, to guard the treasury bench.

As foon as Mr. Horne had finished his fpeech, he defired the crier to call Lord Germaine and General Gage; but neither of them, though fubpoenaed, attended. He then defired the attorney general to be fworn, but the court defired him first to ftate the question he meant to ask, as the attorney general had a right to demur to being fworn. Mr. Horne then pro

pofed fome questions relative to the origin of the caufe, and the conduct of it, which Mr. Attorney faid were too impertinent for him to anfwer; he would not therefore be swern.

Alderman Oliver was then called, and fworn as a witnefs for the defendant. The alderman proved, that the advertisement in question was fo far founded in fact, that a meeting of the Conflitutional Society was held, that the fubfcription alfo was raised, and the money paid to Mr. Horne.

Mr. Lacy, clerk to Henton and Co. proved that Mr. Horne paid. the money to their fhop on Dr. Franklin's account.

Lieutenant Gould was examined, refpeding an affidavit made by him about the affair at Lexington, and published in one of the Public Advertifers, produced by the defendant. He ackuowledged it to be his affidavit, and fwore to its contents, giving at the fame time a viva voce account of the action. Whence it clearly appeared, that the rebels were armed ready to receive the king's troops, and that the latter heard the alarm-guns firing, whilft they were on their march.

The attorney-general observed, that the defendant, from what he had thrown out, feemed rather to have wished to be stopped, in order to have given birth to a popular tumult, than to have aimed either at difproving the charge, or evincing the innocence of his own intention.

He afcribed its delay folely to the defendant, and answered fuch put of Mr. Horne's fpeech as went to the fubject before the court; afferting, that the advertisement charged

in

in the information was moft clearly a grofs and feditious libel, deferv. ing every epithet he had beftowed on it; and told the jury that, if he had failed in proof, the defendant had fupplied the defect, for that the whole of the defence went to an admiffion and aggravation of the libel. Before he fat down, the attorney-general spoke to the other parts of Mr. Horne's fpeech, which he declared was wholly made up of the abufe of the judge; abuse of the jury, abufe of himfelf, and abufe of the mafter of the Crown-office, the folicitor of the treasury, and even of the fheriff's officers.

Lord Mansfield remarked, that, of all the cafes he had ever known, this lay in the fmalleft compafs. There were but two points for the jury to confider; the proof of the publication, and the proof of the charge in the information. The difficulty of the first was removed, for that was fully admitted by the defendant; with regard to the second, they would take out the paper, read the advertisement, and judge for themfelves. His lordhip lamented the prefent unhappy war, and enlarged a little on the nature of the charge made against the king's troops, in the advertife. ment: particularly explaining the application of the phrafe wellbeloved.'

He faid, the jury would readily fee why he paffed over a great deal which had been faid on the occafion, and which ought not to have been faid; but that he could not let them, or the audience, go away without enabling them to contradict any mifreprefentation refpecting one point. His lordship then explained his conduct on the trial of one of the printers, and, after

perfectly clearing himself on that head, fhewed, by quoting the trial of Lord Lovat, when he himself, while folicitor-general, acting as counsel for the House of Commons, replied, although the prifoner called no witneffes; that the custom was not new.

The jury at half after four withdrew for a fhort time, and return. ed, finding Mr. Horne GUILTY,

Further Proceedings in the Cafe of the King againft Horne for a Libel. N Wednesday morning, No vember 19, between ten and eleven o'clock, the Rev. Mr. Horne attended the court of King'sbench, agreeable to a notice iffued by the attorney-general.

The feveral documents being read neceffary to fubftantiate the charge against him, and the grounds of his conviction being then stated to the court, the attorney-general prayed judgment in behalf of the crown. Lord Mansfield was about to pronounce the fentence, when Mr. Horne intreated the attention of the court to a matter which he should urge, in arrest of judgment. He grounded his motion on the following arguments:

Firft, That the information, on which he had been tried, did not fpecifically charge him with any crime. That the whole of the charge was of a constructive nature. But it was an eftablfhed maxim in law, that indictments and informa tions fhould fo exprefsly fet forth the nature of the crime, as not to leave any thing to the conftruction of the court. In the prefent cafe, Mr. Horne contended, that there had not been any thing averred in

the

the information which could amount to a crimination; he was only charged with having printed and published, or caufed to be printed and published, a certain advertisement, which had been deemed a libel. This was the act charged. The guilt, or innocence, of the paper deemed a libel, depended on conftruction. Not any thing of guilt being charged in the information, the conviction might reafonably be fuppofed a miflake of the jury, which the judges, as guardians of the law, would rectify.

The attorney-general, in reply, confeffed he expected a very different kind of argument would have been infifted on by the defendant. To fay that not any thing like a criminal charge had been averred in the information, was furely to be attributed to a perverfion of the underflanding. The charge was too obvious to be mistaken. The information did not merely fet forth that the defendant had printed and published a paper, but that he had printed and published a falfe, fcandalous, and feditious libel, which fet forth, that the King's troops, employed by government, had murdered our American brethren, for no other reafon than because they had been faithful to the character of Englishmen, in preferring death to flavery.' Of fuch an act the defendant had been found guilty. The information had exprefsly charged him with it. The crime had been fubftantiated by the verdict of a jury. The exception was now, therefore, improper in point of time, and frivolous in point of weight. So frivolous, that the attorney-general expected the defendant would have refted his VOL. XX.

motion on a very different ground. He expected to have heard it con tended, that the libel was not of the nature which it had been stated to be in the information. That it was not falfe. That it was not fcandalous. That it was not feditious. That government had not been maligned. Nor the King's troops charged with having com. mitted murder. Those were the propofitions he expected. And the argument in fupport of them he was well prepared to an fwer. Not any thing which bore the fmallest affinity to fuch arguments having fallen from the lips of the defendant, the attorney-general repeated his prayer that the court would proceed to judgment.

Mr. Horne in reply obferved, that, however the expectations of the attorney-general might have been excited, he would answer for it that his wishes had not kept pace with them. Mr. Attorneygeneral might expect it to be proved that the advertisement was neither falfe, fcandalous, nor feditious. But he could not wish for fuch proof. It would entirely defeat the defign of the profecution. The attorney-general had therefore fpared him the trouble of advancing fuch arguments with effect, by not chufing to combat them on the trial. The crown officer had alfo been extremely obliging in another refpect. He had not perplexed the bufinefs with cafes and precedents. Nor had he enlivened the dulnefs of the argument by either his oratory or his wit. Both Mr. Attor ney-general might poffefs. But he had not chofen to make a display of either. It was fo much the more for the advantage of the defendant to have the cause thus fim

plified, and reduced to a point which common fenfe conld easily comprehend. Happily there was a cafe in point fo applicable to that of the defendant, that merely to read it would ferve in the place of a laboured argument. It was the cafe of Lord Ruffel. That nobleman was charged with a defign to feize the King's guards,' as a means to effect his purpose. The opinion of Judge Atkins on the cafe was this, that the words King's guards' were too locfe and indeterminate. That the law knew not of any fuch perfons. The love and good-will of fubjects had frequently been styled the King's guards.' The judges had been alfo called guards of the King.' To charge Lord Ruffel with a defign to feize the King's guards, without fpecifying what, or whom were meant by the terms, was too indefinite a style of averment to be admitted in an indictment.

6

Mr. Horne hinted the applica. bility of this cafe. Who were the King's troops,' alluded to in the information? They had not been defined. But, admitting that they had, was it phyfically impoffible that any of the King's troops fhould commit murder?

As to the epithet of libel,' fo frequently adopted by Mr. Attorney-general, What was a libel? Was the word technically defcriptive? By the court of King's-Bench the act offending a wooden gun' to a man had been deemed a libel. As in the cafe of Thickneffe, who was fentenced for the libel of fending a wooden gun to Lord Orwell.' The language about libels was only the jargon of uncertainty.

The words of,' concerning,'

as they flood in the information, were ftrongly objected to by Mr. Horne on account of their legal informality. The word concerning' meant feeing together, and was applicable to perfons who participated, at the fame time, in the fight of a thing. In this, which was the only fense of the word, it was not applied in the information. And, if the meaning of one word might be tortured, that of many might be mifapplied. A charge could only be fpecified by the moft rigid attention to the meaning of words.

Mr. Horne expreffed an hope that thefe obfervations would have weight with the court. He confidered them to be of validity. And therefore it was that he had urged them as fufficient to render the prayer of the attorney-general for judgment nugatory.

Lord Mansfield, with the greatest moderation imaginable, obferved, that even if there were any thing indefinite in the terms 'King's troops,' abftractedly confidered; yet the information had stated those troops to have been employed by government. This was a fufficient fpecification. On the other hand, there appeared weight in the objections fufficient to induce the court to hear the matter argued without prejudice. There might be errors in the information. If fuch fhould be the cafe, the defendant was intiteled to the bene fit. The facts charged in the feveral counts of the information had been clearly proved. The depofition of the money in the hands of a banker for Dr. Franklin; the hand writing of the defendant; the delivery of the advertisement to the printers; the merit of the objec