HOUSE OF COMMONS, DEC. 2, 1740.

DEBATE RELATING TO A SEDITIOUS PAPER OF THE SAME KIND WITH THE

CONSIDERATIONS ON THE EMBARGO ON PROVISIONS.

Lord THOMSON took notice of a paper which he had in his hand, and said

he received it at the door, where it was given to the members as they

came in, and, complaining of it as an indignity offered to the house,

desired that it might be read. Which being done, he rose up, and spoke

in substance as follows:

Sir, the crime of exasperating the people against their governours, of

raising discontent, and exciting murmurs in a time of general danger,

and of attempting to represent wise and salutary measures, which have

received the approbation of the whole legislature, as mean artifices,

contrived only to raise the fortunes of some favourites of the minister,

and aggrandize the officers of state, by the miseries of the people, is

a crime too enormous to require or admit any aggravation from rhetorick,

and too dangerous to hope for any excuse from candour and lenity.

To read or hear this paper is sufficient for a full conviction of its

pernicious tendency, and of the malice of its author; a charge not fixed

upon particular expressions capable of a doubtful meaning, and which

heat or inadvertency might casually have produced, but supported by the

general design of the whole paper, and the continued tenour of the

argument, which is evidently intended to show, that an act of

government, which cannot but appear necessary and seasonable in the

present state of our affairs, an act ratified by the concurrence of all

the powers of the legislature, is nothing but a scheme of avarice to

grow rich by oppression.

Nor is this scandalous libel written with more confidence and insolence

than it is dispersed. Not content, sir, with vilifying the proceedings

of the state, the author has industriously published his calumny at our

door: the time has been when defamation skulked in secret, and calumnies

against the government were dispersed by whispers or private

communication; but this writer adds insults to his injuries, and at once

reproaches and defies us.

I beg leave to move, therefore, that the house do censure this paper as

"a malicious and scandalous libel, highly and injuriously reflecting

upon a just and wise act of his majesty's government, and also upon the

proceedings of both houses of senate; and tending to create jealousies

in the minds of the people." I also move, "that the author may be

ordered to attend, to be examined at our bar."

[This was unanimously agreed to by the house. The doorkeeper was called

in, and, being shown the paper, was asked from whom he received it? who

answered, that he believed the person who delivered it to him, was then

detained in one of the committee rooms, upon which he was ordered to

look for, and fetch him to the bar.]

Mr. SANDYS, taking notice that the person was already in custody, said,

that he should be glad to know by what authority. It was not reasonable

to punish first, and judge afterwards.

Upon which sir William YONGE replied, that he had caused him to be

detained, in order to know the pleasure of the house; and that he

thought it his duty to secure so enormous an offender from escaping.

Soon after, the doorkeeper brought the man in, when he declared, upon

examination, his name and his profession, which was that of a scrivener,

and owned with great openness, that he was the author of the paper. He

was then asked who was the printer, and answered that he printed it

himself. Which he explained afterwards, by saying, that as he had

carried it to the printer's, he might be said, in the general

acceptation of the term, as applied to an author, to be the printer. He

then discovered the printer, and was asked, where was the original

manuscript, which he said he had destroyed, as he did any other useless

paper.

It having been observed by some of the members, that it was printed in

one of the daily papers, he was asked, who carried it thither? and

answered, that he carried it himself. It was then demanded, what he gave

for having it inserted, and he answered that he gave nothing.

[After many questions, Mr. Henry ARCHER desired that he might be asked,

whether on the Friday before he was in the gallery; at which some of the

members expressed their disapprobation, and the man being ordered to

withdraw, the following debate ensued upon the propriety of the

question.]

Mr. SANDYS spoke first, in substance as follows:--Sir, those who are

intrusted by their country with the authority of making laws, ought,

undoubtedly, to observe them with the utmost circumspection, lest they

should defeat their own endeavours, and invalidate, by their example,

their own decrees.

There is no part, sir, of our civil constitution more sacred, none that

has been more revered by those that have trampled upon other forms of

justice, and wantoned in oppression without restraint, than that

privilege by which every Briton is exempted from the necessity of

accusing himself, and by which he is entitled to refuse an answer to any

question which may be asked, with a view to draw from him a confession

of an offence which cannot be proved.

Whether this great privilege, sir, is not violated; whether the

unalienable right of a free subject is not infringed, by the question

put to the person at our bar, the house must decide. The punishment to

which intruders are subject by the orders of this house, proves that his

presence in the house is considered as a crime, of which, as we have no

proof of it, a confession ought not to be extorted by an artful and

insidious question, of which he may not discover the intention or the

consequence. Such treatment, sir, is rather to be expected by slaves in

the inquisition of Spain, than a Briton at the bar of this house; a

house instituted to preserve liberty, and to restrain injustice and

oppression.

Mr. CAMPBELL spoke next, to this effect:--Sir, I cannot but concur with

the opinion of the honourable gentleman, that, in requiring an answer to

this question, we shall expose a man to a punishment against whom we

have no evidence, but what is extorted from himself; and, consequently,

no knowledge of his crime upon which we can proceed to inflict censures

or penalties, without the manifest infraction of our constitution.

It cannot be imagined, sir, that he intends to confess himself guilty of

a crime of which no proof has been brought, or that he will voluntarily

subject himself to punishments. It must, therefore, follow, that he is

entrapped in his examination, by an artifice, which, I hope, will never

find any countenance in this house.

Mr. WINNINGTON answered to the following purpose:--Sir, it is not

impossible that the honourable gentlemen, having not lately looked into

the orders of the house, may mistake the tendency of the question; I,

therefore, move that the order may be read.

[The order being read by the clerk, he proceeded.]

It is evident, sir, that by the order now read, the serjeant at arms

attending on this house, may take into custody all strangers that shall

be found in the house or gallery while we are assembled; and that this

order is not always put in practice, must be attributed to the lenity of

the house. But that this order extends to past offences, and subjects

any man to imprisonment for having been present in some former day,

cannot be conceived. For how far may such a retrospect be extended? or

at what time, after having intruded into the house, can any man presume

to consider himself as exempt from the danger of imprisonment?

Our order, sir, only decrees present punishment for present offences,

and, therefore, the question asked by the honourable gentleman, may be

insisted on without scruple, and answered without hazard. Let then the

honourable gentlemen reserve their laudable zeal for our constitution

till it shall be invaded by more important occasions.

Mr. SANDYS replied:--Sir, what victory the honourable gentleman imagines

himself to have gained, or whence proceeds all his wantonness of

exultation, I am not able to discover. The question only relates to the

interpretation of one of our own orders, and is, therefore, not of the

highest importance; nor can his success, in so trivial a debate, entitle

him to great applause from others, or produce, in a person of his

abilities, any uncommon satisfaction to himself.

But, whatever may be the pleasure of the victory, it must, at least, be

gained before it can be celebrated; and it is by no means evident, that

he has yet any reason to assure himself of conquest.

His interpretation, sir, of the order, which he has so confidently laid

before the house, seems to me to have no foundation in reason or

justice; for if it be an offence against the house to be present at our

consultations, and that offence be justly punishable, why should any man

be exempt from a just censure by an accidental escape? or what makes the

difference between this crime and any other, that this alone must be

immediately punished, or immediately obliterated, and that a lucky

flight is equivalent to innocence?

It is surely, sir, more rational to believe, that the house may punish

any breach of its orders at a distant time, that if our censure is once

eluded, it may be afterwards enforced; and, therefore, that the question

put to the person at the bar ought not to be asked, because it cannot

safely be answered.

Mr. PULTENEY spoke next, in words to this effect:--Sir, I cannot but

conceive that our order may extend its influence beyond the present

moment, and that intrusions may be punished by the house on another day

than that on which they were committed.

I am so far, sir, from being of opinion, that, to make the execution of

this order valid, the house must sit, without interruption, from the

time of the offence to that of the punishment, that if the gentlemen in

the gallery were to be taken into custody, I should advise the serjeant

to wait till the house should break up, and seize them as they should

come out.

Sir William YONGE spoke next, in the manner following:--Sir, if any such

punishment were now intended, I should advise the gentlemen in the

gallery to retire, indeed, but not to hide themselves like felons, or

men proscribed by proclamation; for as the power of seizing any man in

the house is sufficient to secure us from intrusion, there is no reason

to extend it farther; and penalties are not, without reason, to be

inflicted, neither has the house ever coveted the power of oppressing;

and what else is unnecessary punishment?

If, therefore, an intruder is not seized in the act of intrusion, he

cannot legally be imprisoned for it. And any of the strangers, who now

hear this debate, may retire to a very small distance from the house,

and set the serjeant at arms at defiance.

Sir Robert WALPOLE then spoke to this effect:--Sir, whether the question

be proper or not, it seems very unnecessary to debate; because, however

it be answered, it cannot be of great importance: the man has already

confessed himself the author of the libel, and may, therefore, be

punished without farther examination.

That he is the real author, sir, I am not, indeed, convinced by his

assertion, with whatever confidence it was made; for so far as his

appearance enables me to judge of his education and sphere of life, it

is not probable that he should be much versed in political inquiries, or

that he should engage in the discussion of questions like this.

There appears, sir, in the paper before us, a more extensive knowledge

of facts, a more accurate attention to commerce, more artful reasoning,

and a more elevated style, than it is reasonable to expect from this

man, whom, without pretending to determine the limits of his capacity,

or the compass of his knowledge, I am, for my part, inclined to look

upon as an agent to some other person of higher station, and greater

accomplishments.

It is not uncommon, sir, for gentlemen to exercise their abilities, and

employ their pens, upon political questions, and when they have produced

any thing, which their complaisance for themselves equally hinders them

from owning and suppressing, they are known to procure some person of

inferiour rank, to take upon him, in publick, the character of the

author, and to stand the danger of the prosecution, contenting

themselves with the applause and admiration of their chosen friends,

whom they trust with the important secret, and with whom they sit and

laugh at the conjectures of the publick, and the ignorance of the

ministry.

This, sir, is a frequent practice, not only with those who have no other

employment, but, as I have sufficient reasons to believe, among some

gentlemen who have seats in this house; gentlemen, whose abilities and

knowledge qualify them to serve the publick in characters much superiour

to that of lampooners of the government.

Mr. PULTENEY answered in terms to the following purpose:--Sir, whether

the man who confessed himself the author of the paper, has accused

himself of what he did not commit, or has ingenuously and openly

discovered the truth, it is beyond my penetration absolutely to decide;

the frankness and unconcern with which he made the declaration, gave it,

at least, the appearance of truth, nor do I discover any reason for

doubting his sincerity. Is there any improbability in the nature of the

fact, that should incline us to suspect his veracity? Is there any

apparent advantage to be gained by assuming a false character? Neither

of those circumstances can be produced against him, and an assertion is

to be admitted for its own sake, when there is nothing to invalidate it.

But the honourable gentleman, sir, appears to have a very particular

reason for his doubts; a reason, which will, I hope, have no weight with

any but himself. By denying the paper to this man, he gives room for

conjecture and suspicion to range far and wide, and wanton with whatever

characters he shall think proper subjects for his amusement. An author

is now to be sought, and many diverting arguments may be brought by the

dullest inquirer for fixing it upon one man, or denying it to another.

The honourable gentleman, sir, has given us a bold specimen of this kind

of wit, by insinuating that it is the production of some one of the

members of this house; a conjecture of which I am not able to find the

foundation, and therefore imagine, that raillery rather than argument

was intended. But let the honourable gentleman recollect, that the chief

excellence of raillery is politeness, to which he has surely paid little

regard, in supposing that what has been unanimously condemned as a

libel, has one of those who censured it for its author.

If I am particularly hinted at in this sagacious conjecture, I take this

opportunity of declaring that I am equally ignorant of the whole affair

with any other gentleman in this house; that I never saw the paper till

it was delivered to me at the door, nor the author till he appeared at

the bar. Having thus cleared myself, sir, from this aspersion, I declare

it as my opinion, that every gentleman in the house can safely purge

himself in the same manner; for I cannot conceive that any of them can

have written a libel like this. There are, indeed, some passages which

would not disgrace the greatest abilities, and some maxims true in

themselves, though perhaps fallaciously applied, and at least such an

appearance of reasoning and knowledge, as sets the writer far above the

level of the contemptible scribblers of the ministerial vindications: a

herd of wretches whom neither information can enlighten, nor affluence

elevate; low drudges of scurrility, whose scandal is harmless for want

of wit, and whose opposition is only troublesome from the

pertinaciousness of stupidity.

Why such immense sums are distributed amongst these reptiles, it is

scarce possible not to inquire; for it cannot be imagined that those who

pay them expect any support from their abilities. If their patrons would

read their writings, their salaries would quickly be withdrawn; for a

few pages would convince them, that they can neither attack nor defend,

neither raise any man's reputation by their panegyrick, nor destroy it

by their defamation.

Sir Robert WALPOLE then spoke in the following manner:--I hope it is not

expected, that the heat with which one class of our political writers

have been attacked by the honourable gentleman, should engage me to

undertake their defence with the same earnestness. I have neither

interest enough in the question to awaken my passions, nor curiosity or

leisure sufficient for such an examination of the writings on each side,

as is necessary, before the superiority of any author above his brethren

can he justly asserted.

It is no part, sir, of my employment or amusement to compare their

arguments, or to balance their abilities; nor do I often read the papers

of either party, except when I am informed by some that have more

inclination to such studies than myself, that they have risen by some

accident above their common level.

Yet that I may not appear entirely to desert the question, I cannot

forbear to say, that I have never, from these accidental inspections of

their performances, discovered any reason to exalt the authors who write

against the administration, to a higher degree of reputation than their

opponents. That any of them deserve loud applauses, I cannot assert, and

am afraid that all, which deserves to be preserved of the writings on

either side, may be contracted to a very few volumes.

The writers for the opposition appear to me to be nothing more than the

echoes of their predecessors, or, what is still more despicable, of

themselves, and to have produced nothing in the last seven years, which

had not been said seven years before.

I may, perhaps, be thought by some gentlemen of each class to speak

contemptuously of their advocates, nor shall I think my own opinion less

just for such a censure; for the reputation of controversial writers

arises, generally, from the prepossession of their readers in favour of

the opinions which they endeavour to defend. Men easily admit the force

of an argument which tends to support notions, that it is their interest

to diffuse, and readily find wit and spirit in a satire pointed at

characters which they desire to depress: but to the opposite party, and

even to themselves, when their passions have subsided, and their

interest is disunited from the question, those arguments appear only

loud assertions, or empty sophistry; and that which was clamorously

praised, discovers itself to be only impudence or low conceits; the

spirit evaporates, and the malignity only remains.

If we consider, sir, what opposition of character is necessary to

constitute a political writer, it will not be wondered that so few excel

in that undertaking. He that will write well in politicks, must at the

same time have a complete knowledge of the question, and time to digest

his thoughts into method, and polish his style into elegance; which is

little less than to say, he must be at once a man of business, and a man

of leisure; for political transactions are not easily understood, but by

those who are engaged in them, and the art of writing is not attainable

without long practice, and sedentary application.

Thus it happens that political writings are generally defective: for

they are drawn up by men unacquainted with publick business, and who

can, therefore, only amuse their readers with fallacious recitals,

specious sophistries, or an agreeable style; or they are the hasty

productions of busy negotiators, who, though they cannot but excel the

other class of writers in that which is of most importance, the

knowledge of their subject, are yet rarely at leisure to display that

knowledge to advantage, or add grace to solidity.

Writers of the latter sort appear but seldom, and most of our political

papers are the amusements of leisure, or the expedients of want.

Whether the paper now before us is the produce of ease, or of necessity,

I shall not determine; I have already offered my opinion, that the man

who claims it is not the author, nor do I discover any reason for

changing my sentiment: the question is a question merely of conjecture,

since neither I nor the honourable gentleman attempt to offer any

demonstrative proofs of our opinion. If he has any to produce in favour

of his own notions, let him lay them before you, but let him always

forbear to impute to me assertions which I never uttered, and beware of

representing me as declaring that I believe this paper the composition

of some member of this house.

[It was then debated, whether this offence should be punished by the

authority of the house, or referred to the cognizance of some of the

courts of judicature in Westminster hall, on which occasion Mr. HOWE

spoke as follows:]

Sir, it is the duty of every part of the legislature, not only to

preserve the whole system of our government unaltered and unimpaired,

but to attend particularly to the support of their own privileges,

privileges not conferred upon them by our ancestors, but for wise

purposes.

It is the privilege of this house that we, and we only, are the judges

of our own rights, and we only, therefore, can assign the proper

punishment when they shall be presumptuously invaded.

If we remit this offender, who has attempted to debase the house in the

opinion of the nation, to any inferiour court, we allow that court to

determine, by the punishment that shall be inflicted, the importance of

this assembly, and the value of the collective character of this house.

It therefore concerns us, in regard to our own dignity, and to the

privileges of our successours, that we retain the cognizance of this

crime in our own hands, in which it is placed by perpetual prescription

and the nature of our constitution.

[The house agreed to this, and the libeller was sent to the common jail

of Middlesex, by warrant from the speaker.]

Sir William YONGE then spoke to this effect:--Sir, I am pleased with

finding that the malice and indecency of this libel, has raised in the

house a just resentment, and that the wretch, who, with a confidence so

steady, and such appearance of satisfaction in his countenance,

confesses, or rather proclaims himself the author, is treated as he

deserves. But let us not forget that the same degree of guilt always

requires the same punishment, and that when the author of scandal is in

prison, the printer and propagator of it ought not to be at liberty.

The printer of the daily news is surely the proper object of your

indignation, who inserted this libel in his paper, without the fondness

of an author, and without the temptation of a bribe; a bribe, by the

help of which it is usual to circulate scurrility. To this man the

expense or labour of aspersing the government was recompensed by the

pleasure, and he could not prevail on himself to omit any opportunity of

incensing the people, and exposing at once the whole legislature to

censure and contempt.

Those, therefore, that have concurred in the imprisonment of the author,

will doubtless join with me in requiring the attendance of his officious

accomplice, and I cannot forbear expressing my hopes, that he will not

meet with kinder treatment.

It is far from being the first offence of his licentious press; and the

lenity of the government, by which he has been so long spared, has had

no other effect upon him, than to add confidence to his malice, and

incite him to advance from one degree of impudence to another.

He has for several weeks persisted in misrepresenting the intention of

the embargo, by letters pretended to be written by friends of the

government who are injured by it. He has vented his insinuations

hitherto, as without punishment, so, as it appears, without fear. It is

time, therefore, to disturb his security, and restrain him from adding

one calumny to another.

Sir John BARNARD rose up hereupon, and opposed this motion in terms to

the following effect:--Sir, the end of punishment is to prevent a

repetition of the same crime, both in the offender, and in those who may

have the same inclinations; and when that end is accomplished, all

farther severities have an appearance rather of cruelty than justice.

By punishing the author of this libel, we have, in my opinion,

sufficiently secured our dignity from any future attacks, we have

crushed the head of the confederacy, and prevented the subordinate

agents from exerting their malice. Printers can do no injury without

authors; and if no man shall dare to write a libel, it is not worthy of

our inquiry how many may be inclined to publish it.

But if the printer must necessarily be punished before the resentment of

the house can be satisfied; if it shall not be thought sufficient to

punish him without whose assistance the other could not have offended;

let us, at least, confine our animadversion to the present fault,

without tracing back his life for past misdemeanours, and charging him

with accumulated wickedness; for if a man's whole life is to be the

subject of judicial inquiries, when he shall appear at the bar of this

house, the most innocent will have reason to tremble when they approach

it.

Even with regard, sir, to the offence of which he is now accused,

somewhat may, perhaps, be said in extenuation of his guilt, which I do

not offer to gratify any personal affection or regard for him, to whom I

am equally a stranger with any other gentleman in this house, but to

prevent a punishment which may be hereafter thought disproportioned to

the crime.

It is, sir, to be remembered, that he was not the original printer of

the libel, which he only reprinted from a paper, of which he knew that

it was to be dispersed at our door, and in which he could not naturally

suspect any seditious or dangerous assertions to be contained. It is,

therefore, probable that he fell into the offence by ignorance, or, at

worst, by inadvertency; and, as his intention was not criminal, he may

properly be spared.

Mr. WINNINGTON spoke, in answer, to this effect:--Sir, I cannot but

think the honourable gentleman betrayed, by his zeal for the defence of

this man, into some assertions not to be supported by law or reason. If

it be innocent to print a paper once printed, will it not inevitably

follow, that the most flagitious falsehoods, and the most enormous

insults on the crown itself, the most seditious invectives, and most

dangerous positions, may be dispersed through the whole empire, without

any danger but to the original printer? And what reason, sir, can be

assigned, why that which is criminal in one man, should be innocent in

another?

Nor is this the only position which has been advanced contrary to the

laws of our country; for it has been asserted, that the general

character of an offender is a consideration foreign from that of his

immediate crime; and that whatever any man's past life has been, he is

only to be judged according to the evidence for the offence which is

then the subject of examination.

How much this opinion is consistent with the practice of our courts, a

very slight knowledge of their methods of proceeding will readily

discover. Is any villain there convicted but by the influence of his

character? And is not the chief question at a trial the past conduct of

the person at the bar?

Sir John BARNARD rose here, and spoke thus:--Sir, I rise up only to

answer a question, which is, whether properly or not, put to me, and

hope the irregularity will not be imputed to me, by the house, but to

the occasion which produces it.

I am asked, whether it is not the chief question at the bar of our

courts of justice, what is the character of the prisoner? and cannot but

feel some amazement that any man should be so ignorant of common

proceedings, and so much unacquainted with the execution of our laws, as

to have admitted a notion so chimerical.

The character of the prisoner is never examined, except when it is

pleaded by himself, and witnesses are produced to offer testimony in his

favour; that plea, like all others, is then to be examined, and is

sometimes confuted by contrary evidence. But, the character of a

criminal, though it may be urged by himself as a proof of his innocence,

is never to be mentioned by his prosecutor as an aggravation or proof of

his guilt. It is not required by the law, that the general character of

a criminal, but that the particular evidence of the crime with which he

stands charged, should be examined; nor is his character ever mentioned

but by his own choice.

Sir William YONGE spoke next, to the effect following:--Sir, to prove

the malignity of the intention with which this libel was inserted in the

daily paper, it cannot be improper to observe, that the embargo has been

for many days past the favourite topic of this printer, and that,

therefore, it was not by accident that he admitted so zealous an

advocate for his opinions to be seasonably assisted by the circulation

of his paper, but that he, doubtless, was delighted with an opportunity

of dispersing sedition by means of greater abilities than his own.

Nor can it be justly pleaded, sir, in his favour, that he was encouraged

to publish it by the confidence with which he saw it dispersed; for it

was printed by him in the morning, and not brought hither till the

afternoon. I cannot, therefore, but conclude, that his intentions were

agreeable to his practice, and that he deserves to accompany the author

in his present confinement.

The advocate, CAMPBELL, spoke next, to this purpose:--Sir, I hope it

will not be imputed to me as disregard of the government, or neglect of

the honour of this house, that I declare myself, on all occasions like

this, inclined to lenity, and think it necessary always to proceed by

regular methods, and known forms of justice, not by capricious

determinations, and orders variable at pleasure.

I opposed the imprisonment of the man who just now appeared at the bar

of our house, and am still more unwilling to proceed to severities

against another, who is criminal only in a subordinate degree. The

loudest declaimers against these men cannot have stronger detestation of

falsehood and sedition than myself; but however flagrant may be the

crimes, they may be punished with unjustifiable rigour, and, in my

opinion, we have already proceeded with severity sufficient to

discourage any other attempts of the same kind.

Whether it will promote the advantage of the publick, and the efficacy

of our deliberations, to deter any man from the common practice of

giving us information by delivering papers at our door, must be

considered by the house.

Nor is it less worthy of our most attentive inquiry, whether it is not

more reasonable to prosecute this offender in the common forms of

justice, than to punish him by any act of uncontroulable, unaccountable

authority? Whether it is not more reasonable to have him prosecuted

before a judge unprejudiced, and a disinterested jury, than to act at

once as party, evidence, and judge? I have no desire, sir, of

diminishing the privileges of this house; and yet less would I

contribute to establish any precedents of unlimited power or arbitrary

punishments.

The ATTORNEY GENERAL then spoke to the following effect:--Sir, whence so

much tenderness can arise for an offender of this kind, I am at a loss

to discover, nor am I able to conceive any argument that can be produced

for exempting from punishment the printer of a paper, which has been

already determined, by the vote of the house, to be a scandalous libel,

tending to promote sedition.

It has been, indeed, agreed, that there are contained in the paper some

true positions, and some passages innocent, at least, and perhaps

rational and seasonable. But this, sir, is nothing more than to say,

that the paper, flagitious as it is, might have been swelled to a

greater degree of impudence and scurrility; that what is already too

heinous to be borne, might, by greater virulence, become more enormous.

If no wickedness, sir, is to be checked till it has attained the

greatest height at which it can possibly arrive, our courts of criminal

judicature may be shut up as useless; and if a few innocent paragraphs

will palliate a libel, treason may be written and dispersed without

danger or restraint; for what libel was ever so crowded with sedition,

that a few periods might not have been selected, which, upon this

principle, might have secured it from censure.

The danger of discouraging intelligence from being offered at the door

of our house, does not alarm me with any apprehensions of disadvantage

to the nation; for I have not so mean an opinion of the wisdom of this

assembly, as to imagine that they can receive any assistance from the

informations of their officious instructors, who ought, in my opinion,

sir, rather to be taught by some senatorial censure to know their own

station, than to be encouraged to neglect their proper employments, for

the sake of directing their governours.

When bills, sir, are depending, by which either the interest of the

nation, or of particular men, may be thought to be endangered, it is,

indeed, the incontestable right of every Briton to offer his petition at

the bar of the house, and to deliver the reasons upon which it is

founded. This is a privilege of an unalienable kind, and which is never

to be infringed or denied; and this may always be supported without

countenancing anonymous intelligence, or receiving such papers as the

authors of them are afraid or ashamed to own, and which they, therefore,

employ meaner hands to distribute.

Of this kind, sir, undoubtedly, is the paper now under our

consideration, of which I am far from imagining that it was drawn up by

the man who declares himself the writer, and am, therefore, convinced of

the necessity of calling the printer to the bar, that whatever the

lenity or justice of this assembly may determine with regard to his

punishment, he may be examined with respect to the real authors of the

libel; and that our resentment may fall upon him, who has endeavoured to

shelter himself by exposing another.

Counsellor ORD spoke to this effect:--Sir, I am inclined to believe,

that the persons associated in writing and dispersing this paper,

whosoever they may be, are of no high rank, or considerable influence;

as it is not likely that any man who had much to hazard, would expose

himself to the resentment of the whole legislature; but let us not for

that reason exert our superiority in wanton punishments, or tyrannise

merely because we cannot be resisted. Let us remember that the same

justice and the same humanity is due to the meanest, as the highest of

our fellow-subjects; and that there is even less necessity of rigorous

measures, as the attack is less formidable.

But, sir, there is one motive to moderation that has seldom been found

less efficacious than the consideration of the laws of justice or

humanity. We ought to be withheld by regard to our posterity, and even

to ourselves, from any exorbitant extension of our privileges. We know,

that authority once exerted, is claimed afterwards by prescription. And

who knows by what sudden rotation of power he may himself suffer by a

precedent which he has concurred to establish, and feel the weight of

that oppressive power which he first granted for the punishment of

another?

Mr. HOWE spoke thus:--Sir, I am always unwilling to oppose any proposal

of lenity and forbearance, nor have now any intention of heightening the

guilt of this man by cruel exaggerations, or inciting the house to

rigour and persecution.

But let us remember, sir, that justice and mercy are equally to be

regarded, and while we pity the folly of a misguided, or, perhaps, a

thoughtless offender, let us not suffer ourselves to be betrayed, by our

compassion, to injure ourselves and our posterity.

This house, sir, has always claimed and exerted the privilege of judging

of every offence against itself, a privilege so long established, and so

constantly exercised, that I doubt whether the inferiour courts of

judicature will take cognizance of an attack upon us; for how can they

venture to decide upon a question of such importance without any form or

precedent for their proceedings.

There seems also to be at this time, sir, an uncommon necessity for

tenaciousness of our privileges, when, as some whispers, which have been

wafted from the other house, inform us, a motion has been made in terms

which might imply the subordination of this assembly, an assertion

without foundation either in reason or justice, and which I shall always

oppose as destructive to our rights, and dangerous to our constitution.

Let us, therefore, sir, retain in our hands the cognizance of this

affair, and let the criminal either suffer his punishment from _our_

sentence, or owe his pardon to _our_ mercy.

[It was agreed that the printer of the daily paper should attend next

day, when, being called in, it was proposed that he should be asked,

whether he printed the paper complained of. It was objected to, for the

same reason as the question about the author's being in the gallery,

because the answer might tend to accuse himself; and he being withdrawn,

a debate of the same nature ensued, and the question being put whether

he should be asked, if he be the person that printed the daily paper

shown to him, which paper the house the day before resolved to contain a

malicious and scandalous libel, etc. it was, on a division, carried in

the affirmative, by two hundred and twenty-two against one hundred and

sixty-three: accordingly he was called in again, and being asked the

question, he owned that he printed the said paper from a printed copy

which was left for him with one of his servants; and being asked what he

had to allege in his justification or excuse for printing the said

libel, he said that as he had before printed several other things which

he had received from the said person, which had not given offence, he

inserted part of the paper in his news, and which he should not have

inserted, if he had thought it would have given offence to the house,

and that he forbore to print the remainder, having heard that it had

given offence. Upon which he withdrew, and the house, after some debate,

on a division, one hundred and eighty-eight to one hundred and

forty-five, not only ordered him into the custody of the serjeant, but

resolved to present an address to his majesty, that he would be pleased

to give directions to his attorney general to prosecute him at law.

The first printer of the libel was also ordered into custody. This was

on the 3d of December, but the next day presenting his petition,

expressing his sorrow for the offence, whereby he had justly incurred

the displeasure of the house, and praying to be discharged, he was

brought to the bar on the following day, received a reprimand on his

knees, and was ordered to be discharged, paying his fees.]

On the 12th, lord BARRINGTON presented a petition from the printer of

the daily paper, expressing his sorrow, promising all possible care not

to offend for the future, and praying to be discharged.

This petition being read, a motion was made, that the serjeant at arms

do carry the petitioner to some court of law, to give security for his

appearance to the prosecution to be carried on against him by the

attorney general; which done, that he be discharged, paying his fees.

Sir William YONGE spoke to this effect:--Sir, I know not for what reason

this enormous offender is entitled to so much regard, or by what

interest he has engaged so many, who, I doubt not, abhor his crimes, to

pity his sufferings.

Had he been young and unexperienced, and seduced into the commission of

this offence by artifice or persuasion, his act might have been

reasonably considered rather as an errour than a crime, and it might

have been proper to treat with lenity a delinquent neither obstinate nor

malicious.

But how, sir, can this plea be urged in favour of a man, whose daily

employment it has been, for these two years past, to misrepresent the

public measures, to disperse scandal, and excite rebellion, who has

industriously propagated every murmur of discontent, and preserved every

whisper of malevolence from perishing in the birth.

The proper judge, sir, of this affair, is his majesty's attorney

general, who is not now in the house. I am, therefore, for detaining him

in custody, and for referring the consideration of farther proceedings

against him to that gentleman, whose proper province it is to prosecute

for the crown.

Mr. WALLER spoke next, to the following purpose:--Sir, it is

undoubtedly the duty of every man to oppose the introduction of new

laws, and methods of oppression and severity, which our constitution

does not admit; and what else is the mention of a prisoner's character

as an aggravation of his present offence?

It is well known, and has been already asserted, upon this occasion,

that in the lower courts of justice, though the prisoner may plead his

character, in his own defence, his prosecutor is not at liberty to

produce it to his disadvantage. Even those who are cited to the bar for

murder or for treason, are tried only by the evidence of that crime for

which they are indicted.

That this house is not bound to strict forms, and is not accountable for

the exercise of its power, is easily granted; but authority cannot

change the nature of things, and what is unjust in a lower court, would

be in us not less unjust, though it may not be punishable.

* * * * *

It was replied that this question had been before sufficiently

discussed.

The attorney general not being present, the debate was adjourned to the

next sitting.

On the next day of the session, the lord BARRINGTON proposed, that the

adjourned debate might be resumed, and several members interceded for

the petitioner, that he might be released; to which it was objected,

that it was not proper to release him, unless an information was lodged

against him, without which he could not be held to bail; and the

question being put, whether he should be released, was determined in the

negative.

At the sixth sitting, the author of the libel, who was committed to the

common prison of Middlesex, petitioned the house to permit him to

implore pardon on his knees, and promising, by the strongest and most

solemn assurances, not to offend again, was ordered to be discharged the

next day, paying his fees.

On the forty-seventh sitting, the printer of the daily paper again

petitioned the house, representing, that he most heartily bewailed his

offence, that he was miserably reduced by his confinement, having

borrowed money of all his friends to support himself, his wife, and

children, and praying the mercy of the house. He was then ordered to be

discharged, paying his fees, and giving security for his appearance to

answer the prosecution.

On the eighty-fifth day, Mr. George Heathcote offered another petition

for the said printer, and represented, that the fees amounting to one

hundred and twenty-one pounds, he was not able to pay them, that,

therefore, he hoped the house would consider his case; but the petition

was not allowed to be brought up. On which he remained in custody

fourteen days longer, till the end of the session, and, the authority of

the senate ceasing, had his liberty without paying any fees.

The Works of Samuel Johnson, LL.D. Volume 10 Parlimentary Debates I · 第 11 / 41 题