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.