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