⚫ 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 Comby the king's troops, only for preferring 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 Comhumanly to murder the king's innocent sub-mentaries, judge Blackstone was extremely jects? There can be no doubt but that the king's government comprehends all the executive power of the state, both civil and military; that he employs all the national force, and that his troops are the instruments with which part of the executive government is to be carried on. The introductory part of this information charges, that the subject of the writing in the present case was,The troops, and the king's troops, and the business they 'had done.' ignorant of criminal law."-" Blackstone when he compiled his lectures was comparatively an ignorant man, he was merely a fellow of All Souls College, moderately skilled in the law. His true and solid knowledge was acquired! afterwards; he grew learned as he proceeded with his work.""There were many things in Blackstone's work which, as a lawyer, he was bound to say were mis-statements, among them was the proposition to which the noble lord had referred." Lord Erskine, however, It has been truly said, that the king's troops powerfully vindicated the Commentaries; may, like other men, act as individuals: but "The work shewed the author'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 informations er officio were amounts to this, that, in the discourse which part of the ancient law, it was from history and was held, the words were said of and concern- writers of authority which were open to him, ing the king's government;' the natural im- that their true nature was to be traced; from port of them, without any forced or strained his not having attended the courts, he might meaning, appears to us to be this; I am speak- not know the modern practice, but he knew 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 he said, were for that reason only inhumanly mur-that the objects of them, were properly such 'dered by the king's order; or the orders of 'his officers.' The motive imputed tends to aggravate the inhumanity of the act, and consequently, of the imputation itself: because it arraigns the government of a breach of public trust, in employing the means of the defence of the subject in the destruction of the lives of those who are faithful and innocent. As to any other circumstances not stated in the information; if those which are stated, do of themselves constitute an offence, the rest supposed by the defendant, whether true or false, would have been only matter of aggravation, and not any ingredient essential to the constitution of the crime, and therefore not necessary to be averred by the record. Upon the whole of the case therefore, we are unanimously of opinion, that the record contains all facts and circumstances necessary 'to warrant the conclusion of the jury. And 'that it likewise contains all facts and circum'stances necessary for the information of the Court to give their judgment upon the occa⚫sion.' Whereupon it was ordered and adjudged, That the judgment, given in the court of King'sbench for the king, be affirmed, and the record remitted, &c.-(Cowper's Reports, p. 682.) In the course of the debate July 17, 1812, respecting lord Holland's bills relative to informations er officio, (see New Parl. Deb. vol. 29, p. 887, 1069, et seq.) lord Holland hav enormous misdemeanors as tended to endanger or disturb the government, and in which a moment's delay might be fatal; in such cases, the law had given to the crown the power of an immediate prosecution without waiting for any previous application to any other tribunal.” He entirely agreed with his noble and learned friend that this was not quite a correct view of the use of informations in our own times, nor even when the Commentaries were written; but to arraign the work on that account, would be trying it not by the principles of the law, but by the very abuse complained of." Indeed, whatever be the authority of Mr. Justice Blackstone's opinions at the time of his death, to that authority, and not merely to the. weight of his opinions when he compiled hist lectures, are his Commentaries as he left them entitled. Nine editions of Blackstone's Commentaries were published in his life-time, and it appears from Hargrave's Jurisconsult Exercitations, vol. 1, p. 381, that the tenth edition, though published after Blackstone's death, had been corrected by him. Not unconnected with the law of libel upon which Mr. Horne said so much in this case, is the dictum of lord Ellenborough in the case of Dubost v. Beresford, (2 Campbell's Nisi Prius Rep. 511,) being an action for destroying a picture, which was publicly exhibited, but which it appeared was highly defamatory of a gentle man and his wife who was the defendant's sister. Lord Ellenborough, C. J. B. R. said “If it was a libel upon the persons introduced into it, the 1 law cannot consider it valuable as a picture. Upon an application to the Lord Chancellor, be would have granted an injunction against its exhibition, and the plaintiff was both civilly and criminally liable for having exhibited it." I have been informed by very high authority, that the promulgation of this doctrine relating to the Lord Chancellor's injunction excited great astonishment in the minds of all the practitioners of the courts of equity, and I had apprehended that this must have happened; since I believe there is not to be found in the books any decision or any dictum, posterior to the days of the Star Chamber, from which such doctrine can be deduced, either directly, or by inference or analogy: unless indeed we are to except the proceedings of lord Ellenborough's predecessor Scroggs and his associates, in the case of Henry Care; in which "Ordinatum est quòd liber intitulat the Weekly Packet of Advice from Rome, or the History of Popery,' non ulteriùs imprimatur ,vel publicetur per aliquam personam quamcunque." See the Order in vol. 8, p. 198, in Scroggs's Case. See Herry Care's Case, in vol. 7, p. 1111. See also, vol, 19, p. 1152. case Concerning appeal of murder, spoken of in p. 716, see the cases of Spencer Cowper, vol. 12, p. 1106, and Thomas Bambridge, vol. 17, p. 397. In Vol. 16, which is just published, of the New Parliamentary History (p. 42.) it appears that the attempt at the time of the Revolution to take away Informations in the court of King's Bench, (see p. 678) was mentioned by Mr. Nicholson Calvert in his speech on March 4, 1765, in the House of Commons, upon moving for leave to bring in a Bill for the relief of his Majesty's subjects, touching Infor mations in the King's-bench, by and in the name of his Majesty's Attorney-General.' "Much doubt has been formerly entertained by those who where most eminently distinguished for their knowledge of the criminal laws of this country, whether any criminal informations were lawful. The constructions of Magua Charta, cap. 29, some ancient statutes, and books of the law, declare and agree, That no man can be charged, but by indictment or presentment. In the case of the King and Berchet and others, 1 and 2 William and Mary, reported in 5th Mod. 463, and there called Prynne's case, sir Francis Winnington averred that lord chief justice Hale had often said, That if ever informations came in dispute, they could not stand, but must necessarily fall to the ground.'-It is admitted, however, that the court of King's-bench in that case held, that informations lay at common law. "The present question therefore will be, Who are the officers known to the law, and described in the law books, as the persons with whom only this right of exhibiting informations ex officio rested?-It may be clearly collected, from the authority of the legislature, and the law books, that these officers were only the king's attorney-general, and the king's coroner, to which latter is always added, in such liament, no law book, mentions any other officer, cases, the title of attorney also-No act of paras 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 William and Mary, cap. 18, and was then left in the attorney general only.-Serjeant Haw kins in his second volume of Pleas of the Crown, fol. 268, observing upon that statute's taking away this power from the king's coroner and attorney only, says, from whence it follows, that informations exhibited by the attorney general remain as they were at common law. "Such informations can only be exhibited in the court of King's-bench, of which court the king's attorney general and the king's coroner and attorney, commonly called the master of the Crown-office, are officers upon record, and have their known seats and places there as such. On the writ of error in Wilkes's Case, (See Vol. 19, p. 1126) in support of the first error assigned, viz. "That it does not appear by the 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 in 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; and, therefore, that the said informations are not sufficient informations in law, whereon to ⚫ convict the said John Wilkes of the offences in and by the same informations charged upon him, and to ground the aforesaid judgments against him," the following reasons were alleged in his printed Case, signed by his counsel (Glynn and Davenport.) "I. Because the said informations are exhibited and filed by the said sir Fletcher Norton, as his Majesty's Solicitor General, ex officio, when, by virtue of such his office, he had no general authority so to do. .. "II. Because it does not appear, that he had any special authority so to do. such officers of record as have, in respect of their offices, theretofore lawfully used to ex hibit informations,' that it is the judgment of parliament, that there were officers to exhibit them, and those that are meant must be the at torney and his deputy the coroner, for I know, says he, no other.-It may be thought that sir Bartholomew Shower is inaccurate in calling the coroner deputy to the attorney, because the coroner has a superior seat in the court of King's-bench to the attorney.-But sir Bartholomew Shower must be understood to speak of the coroner, as deputy only in this instance, be not having equal power with the attorney over the information when exhibited; for the coroner cannot put a stop to it even though he should have the king's warrant under his sign manual for the purpose; and yet the attorneygeneral can, by virtue of his office, stop it at once by a noli prosequi, which appears by the case of the King v. Benson, 1 Vent. 33. Sir Bartholomew Shower, fol. 120, says further, That in case of malicious prosecution, no action lies against the attorney or coroner, any more than against a grand juror or prosecutor; and the reason given for it is, because they are upon their oaths, and so says he, they (mean ing the attorney and coroner) are here as officers upon record; and fol. 122, he says, the way of apprizing the Court is, by dedit curiæ bic intelligi et informari' before any process, which is done by a sworn officer filed of record. "If it be contended, that during the vacancy of the office of attorney general, his authority, in this respect, devolves upon the solicitor general; it is answered, that no law book or judicial determination warrants that argument. It is admitted that there are some modern instances in the rolls of the Crown-office of informations filed by the solicitor general, ex officio some of which describe the vacancy of the office of attorney general, as if that was the circumstance from which the solicitor general derived his authority, and raised to himself this power. But as the others are silent about such vacancy, they must prove a general original authority, or nothing; because if a special authority is to give the title, it must by the rules of law be set forth in the record, for nothing out of the record can warrant the judgment upon the record. There does not appear to be one instance of a litigation, or judicial opinion, concerning such informations filed by the solicitor general. | claimed or exercised the power; and as he appears to have had no warrant or authority whatsoever to act in this instance as attorney for the crown; it is humbly submitted by the plaintiff in error, that the informations in question were filed without any lawful authority, and for that reason are fundamentally bad and void, so as not to warrant any judgments upon them against the plaintiff in error." On the part of the crown it was said in answer, "That an information for an offence is a surmise or suggestion upon record, on behalf of the king, to a court of criminal jurisdiction, and is, to all intents and purposes, the suit of the king; and that it would be difficult to assign a reason, why his majesty should not have equal liberty with the subject of commencing and prosecuting his suits, by those persons whom he thinks fit to confide in and employ. That the attorney and solicitor general are invested, by their offices, with general authority to commence and prosecute the suits of the crown it is true, the attorney general, as the superior officer, has the direction and control of his majesty's prosecutions, in which the solicitor general seldom interferes; but it is equally true, that during the vacancy of the office of attorney general, all the suits of the crown, both criminal and civil, are commenced, prosecuted, and carried on by the Solicitor General. That at the time when these informations were filed against Mr. Wilkes, the office of attorney general was vacant, and consequently the solicitor general was the proper officer to exhibit them. But it is said, that the fact of the vacancy ought to appear upon the record: the only pretence for such an averment is to inform the court of the vacancy, as an inducement 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 vacancy of the office; and there are offspring can sanctify their birth. If the infor- multitudes 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 has 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 themation being filed by the solicitor general furroom of the coroner, from whom they took this nished any real ground of objection 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 be pleased; as the irregularity, and the remedy must have been legislature has left the attorney general the by application to the court to have the informaonly known 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, about any power lodged in him for such purpose; as this power has of late time only been usurped by the solicitor general in some modern instances, and those too varying in their form, as if he did not know on what ground he VOL. XX. waived any advantage of that irregularity. Besides, the solicitor general having, during the suit, been appointed Attorney General adopted the information, joined issue with the plaintiff in error, and prosecuted the suit to a conviction." 553. The Trial of JOIN 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 Middlesex, Filed Hilary Term, 10 Geo. 3. lord the king, and of that paternal love and concern which he hath 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 had unjustly taken a part with within the liberty of Westminster in the some of his subjects against others, and had county of Middlesex, bookseller, having no unjustly prostituted the measures of his goregard 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 him the said John thereof, and most unlawfully, seditiously, 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 right ought to have and lest and disturb the happy state, and the shew towards our said lord the king; and also, public peace and tranquillity of this kingdom, most unlawfully, 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, aud 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 manage in that part of Great Britain called England, ment of the weighty and arduous affairs of this and in 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 lamentable state and condition; and also, most unlawfully and maliciously contriving and intending to represent, and cause it to be believed, that our said lord the king had bestowed promotions and favours upon his subjects of that part of his kingdom of Great Britain, called Scotland, in preference to his subjects of that part of Great Britain called England, and thereby to create groundless jealousies and uneasiness in his majesty's subjects of England, and also most unjustly to represent, and cause it to be believed, that our said lord the king had bestowed promotions and favours upon one part of his said majesty's army, commonly called the guards, in preference to another part of his army, commonly called the marching regiinents, and thereby to create groundless jealousies, uneasiness, and mutiny, in that part of his army called the marching regiments, and to bring our said lord the king and his administration of the government of this kingdom, Printed for J. Miller, in Queen's HeadPassage, Paternoster-row, 1770. nisters had violated the laws and constitution of this kingdom, and adopted weak, oppressive, and infamous measures in the administration of the public affairs of this kingdom, and had brought distress and misery upon the subjects of this kingdom; and thereby to weaken and diminish the public credit, power and authority of the government, and also, as much as in him the said John Almon lay, contriving and intending to asperse, scandalize and vilify the members of the present House of Commons of this kingdom, and to represent them as an abandoned, profligate set of men, who had arbitrarily invaded the rights of the people, violated the laws, and subverted the constitution of this kingdom, and also as much as in him the said John Almon lay, to move, excite, and stir up the subjects of our said lord the king to insur rection and rebellion against our said lord the king, he the said John Almon, upon the first day of January, in the 10th year of the reign of our said present sovereign lord George the 3d, by the grace of God, of Great Britain, France and Ireland, king, defender of the faith, and so forth, with force and arms, at the parish We are correct the error of your education. of St. James aforesaid, within the liberty of Westminster aforesaid, in the county of Middlesex aforesaid, unlawfully, wickedly, seditiously, and maliciously did publish, and did cause and procure to be published, a most wicked, scandalous, seditious, and malicious libel intituled, The London Museum of PoJitics, Miscellanies, and Literature, in which said libel of and concerning our said present sovereign lord the king, and of his administration of the government of this kingdom, and also of and concerning the public affairs of this kingdom, and also of and concerning the principal officers and ministers of our said lord the king, employed and entrusted by our said lord the king in the conduct and management of the weighty and arduous affairs of this govern-natured prince from the folly and treachery of ment, and also of and concerning the members his servants, and the private virtues of the man of the present House of Commons of this king- from the vices of his government. Were it dom, are contained (amongst other things) di- not for this just distinction, I know not whevers, wicked, scandalous, seditious, and mali- ther your m--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 nius's Letter to the **** (meaning 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 have meaning our said present sovereign lord the suffered, when, instead of sinking into submis- king) wish for nothing but that as they are reasion, they are roused to resistance, the time sonable and affectionate enough to separate will soon arrive at which every inferior cousi- your person from your government, so you deration must yield to the security of the so- (again meaning our said present sovereign lord 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 itself 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 he owes I doubt not, a sincere resolution of giving unito 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 his subjects. a young prince, whose countenance promised In these circumstances it may be matter of even more than his words, and loyal to you not curious speculation to consider, if an honest only from principle but passion. It was not a man were permitted to approach his king, in cold profession of allegiance to the first mawhat terms would he address himself 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- nor 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 be (again meaning our said present sovereign lord 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. Unacquainted with the and 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 not without respect. Sir, (meaning our pre-possess you. Distrust the men who tell you sent sovereign lord the king) it is the misfortune of your life, and originally the cause of every reproach and distress which has attended your government, that you (again meaning our present sovereign lord the king) should never have been acquainted with the language of truth, until you heard it in the complaints of your people. It is not, however, too late to the English are naturally light and inconstant, that they complain without a cause. Withdraw your confidence from all parties; from ministers, favourites, and relations; and let there be one moment in your life in which you (again meaning our said present sovereign lord the king) have consulted your own understanding. When you (again meaning our said lord the |