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.