Political Disquisitions - Vol 111 Chap IX

James Burgh - 1775

An Enquiry into Public Errors, Defects and Abuses

Of the Liberty of Speech and Writing on Political Subjects



     In an inquiry into public abuses no one will wonder to find
punishment inflicted by government upon complainers, rewckoned as an
abuse; for it certainly is one of the most atrocious abuses that a free
subject should be restrained in his inquiries into the conduct of those
who who undertake to manage his affairs; I mean the administrators of
government:  for all such are undertakers, and are answerable for what
they undertake: but if it be dangerous and penal to inquire into their
conduct, the state may be ruined by their blunders, or by their villanies,
beyond the possibility of redress.  There deems to be somewhat unnatural
in attempting to lay a restraint on those who would criticize the conduct
of men who undertake to do other people's business.  It is an offence, if
we remark on the decision of a court of law, on the proceedings of either
house of parliament, or of the administration; all whose proceedings we
are immediately concerned in.  At the same time, if man builds a house for
himself, marries a wife for himself, or writes a book, by which the public
gets more than an author, it is no offence to make very severe and unjust
remarks.

     Are judges, juries, counsellors, members of the house of commons,
peers, secretaries of state, or kings infallible?  Or are they
short-sighted, and perhaps interested mortals?

     In a petition to parliament, a bill to chancery, and proceedings at
law, libellous words are not punishable; because freedom of speech and
writing are indespensably necessary to the carrying on of business.  But
it may be said, there is no necessity for a private writer to be indulged
the liberty of attacking the conduct of those who take upon themselves to
govern the state.  The answer is easy, viz.  That all history shows the
necessity, in order to the preservation of liberty, of every subject's
having a watchful eye on the conduct of Kings, Ministers, and Parliament,
and of every subject's being not only secured in alarming his fellow
subjects on occasion of every attempt upon public liberty, and that
private, independent subjects only are like to give faithful warning of
such attempts; their betters (as to rank and fortune) being more likely to
conceal, than detect the abuses committed by those in power. If therefore,
private writers are to be intimidated in shewing their fidelity to their
country, the principle security of liberty is taken away. 

     Punishing libel public or private is foolish, because it does not
answer the end, and because the end is a bad one, if it could be answered. 

    The Attorney General De Grey confessed in the House of Commons, A. D.
1770, 'that his power of filing informations ex officio is an odious
power, and that it does not answer the purpose intended; for that he had
not been able to bring any libeller to justice".  Mr. Pownal shewed that
power to be illegal and unconstitutional; for that, according to law, no
Englishman is to be brought upon his trial, but by presentment of his
country; a few particular cases excepted. 

     When the lawyers say a libel is criminal, though true, they mean,
because it is, according to them, a breach of the peace, and tends to
excite revenge.  They allow, that the falsehood of the charge is an
aggravation, and that, therefore, the person  libelled has no right to
damages, if the charges laid against him be true.  But by this rule it
should seem, that the truth of the libel should take away all its
criminality. For if I have no right to damages, I have no pretence to seek
revenge.  Therefore to libel me for what I cannot affirm myself to be
innocent of, is no breach of the peace, as it does not naturally tend to
excite revenge, but rather ingeneous shame and reformation. 

     Let us hear on this subject the excellent Lord Chesterfield on the
bill for licensing the stage, A. D. 1737,

     'In public as well as private life, the only way to prevent being
ridiculed or censured, is to avoid all wicked or ridiculous measures, and
to pursue only such as are virtuous and worthy.  The people never endeavor
to ridicule those they love and esteem, nor will they suffer them to be
ridiculed.  If anyone attempts it, their ridicule returns upon the author; 
he makes himself only the object of public hatred and contempt.  The
actions or behaviours of a private man may pass unobserved, and consequent
unapplauded and uncensured; but the actions of those in high stations, can
neither pass without notice nor without censure or applause; and therefore
an administration without esteem, without authority, among the people, let
their power be ever so great at or ever so arbitrary, will be ridiculed:
the severest edicts, the most terrible punishments cannot prevent it.  If
any man, therefore, thinks he has been censured, if any man thinks he has
been ridiculed, upon any of our public theatres, let him examine ne his
actions he will find the cause, let him alter his conduct he will find the
remedy.  As no man is perfect, as no man is infallible, the greatest may
err, the most circumspect may be guilty of some ridiculous behaviour.  It
is not licentiousness, it is an useful liberty always indulged the stage
in a free country, that some great men may there meet with a just reproof,
which none of their friends will be free enough, or rather faithful enough
to give them. 

     Of this we have a famous instance in the Roman history.  The great
Pompey, after the many victories he had obtained, and the great conquests
he had made, had certainly a good title to the esteem of the people of
Rome.  Yet that great man, by some error in his conduct, became an object
of general dislike; and therefore in the representation of an old play,
when Diphilis the actor came to repeat the words, Nostra misferia tu es
magnus, the audience immediately applied them to Pompey, who at that time
was as well known by the name Magnus as by the name Pompey, and were so
highly pleased with the satire, that, as Cicero tells us, they made the
actor repeat the words one hundred times over.  An account of this was
immediately sent to Pompey, who, instead of resenting it as an injury, was
so wise as to  take it as a just reproof.  He examined his conduct, he
altered his measures, he regained by degrees the esteem of the people, and
then he neither feared the wit, nor felt the satire of the stage. This is
an example that ought to be followed by great men in all countries." 
    
     Even the cruel Tiberius, when in good humour, could say, "In a free
state, the mind and the tongue ought to be free." Titus defied anyone to
scandalize him.  Trajan published absolute liberty of speech and writing. 
Constantine, when he was told so me ill-disposed persons had battered his
head and face, meaning those of his statue, felt himself all about those
parts, and told his courtiers, he found nothing amiss; desiring that they
would take no trouble about finding out the violators of the statute . 

     Mr. Gordon allows the maxim, that a libel is none the less a libel
for being true.  But this holds, he says, only in respect of private
characters; and it is quite otherwise when the crimes of men affect the
public.  We are to take care of the public safety at all adventures.  And
the loss of an individual's, or a whole ministry's political characters
ought to be despised, when put in competition with the fate of a kingdom. 
Therefore no free subject ought to be under the least restraint in respect
to accusing the greatest, so long as his accusation strikes only at the
political conduct of the accused:  his private we have no right to meddle
with, but in so far as a known private character indicates an unfittness
for public power or trust.  B But it may be said, this is a grevious
hardship on those who undertake the administration of a nation;  that they
are to run the hazzard of being publically accused of corruption,
embezzlement, and other political crimes, without having it in their power
to punish their slanderers.  To this I answer, It is no hardship at all,
but the unavoidable inconvenience attendant upon a high station, which he
who dislikes must avoid, and keep himself private.  Cato was fourty times
tried.  but we do not think the worse of Cato for this.  If a statesman is
liable to be falsely accused, let him comfort himself by recollecting,
that he is well paid.  An ensign is liable to be killed in war; and he has
but 3s. and 6d. a day.  If a statesman has designedly behaved amiss, he
ought to be punished with the utmost severity; because the injury he has
dine, is unboundedly extensive.  If he has injured the public through
weakness, and without wicked intention, he is still punishable; because he
ought not to have thrust himself into a station for which he was unfit. 
But indeed, these cases are so rare (want of honesty being the general
cause of mal-administration), that it is scarce worthwhile to touch upon
them.  If a statesman is falsely accused, he has only to clear his
character, and he appears in a fairer light than before.  He must not
insist on punishing his accuser:  for the public security requires, that
there be no danger in accusing those who undertake the administration of
national affairs.  The punishment of political satyrists gains credit to
their writings, nor do unjust governments reap any fruit from such
severities, but insults to themselves, and honour to those whom they
prosecute.
     
     A libel is in fact (criminally speaking) a non entity, i.e. there is
no such offence as scandal.  For if the punishment was taken away, the
whole of the evil would be taken away, because nobody would regard
scandal; but people would believe every person's character to be what
they knew it.  The old philosopher said all in a sentence, "Live so that
no one will believe your maligners." 
     
     Filing informations by rule of court on motion of counsel, tends to
set aside the old constitutional method of indictment and presentation of
jury.  But informations filed ex officio by the Attorney General, are not
more consistent with libels than letters of cachet. 

     A. D. 1765, a motion was made in the House of Commons, "That general
warrants for apprehending the authors of seditious or treasonable libels,
and for seizing their papers, are not warranted by law, although they
have been customary."  Nothing done in the matter.  The House was too
tender of the power of the court to make a resolution so favorable to the
liberty of the subject. 

     General warrants are not a whit more reconciliable to liberty, than
the French King's Letteres de Cachet.  A general warrant lays half the
people of a town at the mercy of a set of ruffian officers, let loose upon
them by a secretary of state, who as assumes over the persons and papers of
the most innocent a power which a British king dares not assume, and
delegates it to the dregs of the people; in consequence of which the most
delicate secrets of families may be divulged; a greater distress to the
inn innocent than the loss of liberty, or in some cases even of life. 

     Mr. Pitt issued out two general warrants, but neither on account of
libels.  One was, to stop certain dangerous persons from going to France,
and the other, for seizing a supposed spy, both in times of war. The Duke
of Newcastle issued innumerable warrants, on frivolous occasions, as
libels on the ministry, etc. 

     In all cases of danger to the main, there ought to be a regular and
legal suspension by Parliament of the Habeas Corpus act, as is usual in
times of rebellion; which (supposing Parliament incorrupt) would secure
the state, and at the same time save the liberty of the subject inviolate. 
If it be objected, that it is not worth while to have the Habeas Corpus
act suspended for the sake of apprehending a single incendiary; be it
answered, that then it is certainly not worth while on that account to is
sue an illegal , unconstitutional general warrant, to the violation of the
subject's liberty, as often as a capricious secretary of state shall think
proper. 

     In the arguments against the privy-council's arbitrary power of
committing to prison by an anonymous member, A. D. 1681, he quotes laws
for refraining this power as old as 9 Henry III, 5 Edw. III. c. 9. 25 Edw.
III. c. 4. 28. Edw. III. c. 3.  37 Edw. 

III. c. 18. 38 Edw. III. c. 9. and 42 Edw. III. c. 3.  Besides Magna
Carta, Habeas Corpus, bill of right, petition of right, etc. which ordain,
that no man shall be imprisoned, or stripped, or distrained, or outlawed,
or condemned, or corporally punished, but by presentment and trial by his
peers.  That informers, who deceive the king into unjust commitments,
shall be bound over to prosecute, and be answerable for damages by
suffering the punishment they designed to bring on the innocent, or be
obliged to satisfy the injured.  But all these have been violated by the
privy-council's sending for gentlemen from very distant parts, to their
great vexation, and imprisoning arbitrarily, without other authority or
proceeding than order of privy-council, and no  redress or punishment
inflicted on the false informer according to 37 Edw. III. c. 18. 

     Shippen makes a speech against the suspension on the Habeas Corpus
act.  Over-ruled.  The king did certainly make no bad use of his power. 
And in a time of open rebellion, it seems necessary that there be such a
power somewhere.  But I think it would be better in the hands of a
committee of the House of Commons; who should always fit; but this
supposes an independent House of Commons.

     A. D. 1766, Sir W. Meridith moved the House of Commons, that it might
be resolved, That general warrants and seizure of papers are violations of
the rights of the subject.  Instead of which, almost the direct contrary
was resolved.  Yet it seems ma manifest, that nothing can be imagined more
inconsistent with freedom (say nothing of the right which every free
subject has to write and speak of public affairs), than putting a
discretionary power into the hands of a set of low-bred, unprincipled,
beggarly officers, or messengers who may be expected to abuse their power,
and are incapable of answering the damages of seizing the persons and
papers of the innocent instead of the guilty. 

     No man ought to be hindered saying or writing what he pleases on the
conduct of those who undertake the management of national affairs, in
which all are concerned and therefore have a right to inquire, and to
publish their suspicions concerning them.  For if you punish the
slanderer, you deter the fair inquirer.  But even suppossing real and
justly punishable guilt, no subject is to be molested but on well-grounded
suspicion declared upon oath.  Suppose the coroner's jury, upon a person
found dead with marks of violence, brings in their verdict, "wilful murder
against persons unknown"; we are not immediately to loose a set of ruffian
officers to seize and imprison the persons, rumage and expose the most
secret papers, and carry off the bank-notes they find in the bureaus of
the next twenty housekeepers.  No; nor have our secretaries of state ever
proceeded in this manner on such occasions.  They have only broke loose on
the liberty of the subject when their mal-administrations have been
exposed.  Nor is this unnatural for such a fort of men.  But what shall we
think of such a House of Commons (once the constant and faithful guardians
of our liberty, once our never-failing protectors against regal and
ministerial encroachments), who refused to declare the lawless proceedings
of the secretaries of state unwarrantable, and supported their tyrrany
over the people, till a more faithful expounder of the law wrenched it out
of their hands.

     The same year 1766, a motion was made -- but in vain -- for abolishing
the custom of the attorney general's ex-officio informations, as oppressive
to the subject, because that officer cannot be called to account for
damages suffered by innocent persons informed against by him. 

     It has been pretended, that it is impossible to administer
governments without general warrants.  But this is a mistake.  For all
that is necessary, even when treasonable designs are suspected to be
carrying on, is watchfullness in magistrates and of officers to find out
the guilty persons who, when found or reasonably suspected, are to be
apprehended by a special warrant from a magistrate, who is supposed to be
a person of such fortune, as to be responsible for whatever damage an
innocent person may s suffer, if unjustly apprehended and imprisoned.
Whereas to trust this power in the hands of a set of brutal and beggarly
officers, is neadlessly putting the safety of the best subjects in the
power of the lowest of the people, unless the person who grants the
general warrant be answerable for the behaviour of his officers, which is
laying him at their mercy.  If this be disputed, let it be considered,
that supposing a set of persons taken up by a general warrant, if they
cannot be convicted, must be set a at liberty, whether guilty or innocent. 
And if they, or any of them, proves to be guilty, there must have been
ways and means of fastening upon him sufficient suspicions to justify the
issuing out of a special warrant against him; else we must suppose the
whole set taken at random, and the guilty among them found afterward by
chance.  To issue a warrant for apprehending all persons who shall be
found in the actual commission of punishable actions, may be at some times
necessary; and this necessity does, in no respect, defend general
warrants;  because the confining of a warrant to those who are taken in
circumstances of guilt, makes it a special warrant, and secures the
innocent, (which is all that is wanted) from trouble.

     To seize all the papers indescriminantly of the supposed writer of an
accusation against a statesman, probably a just accusation (for there is
little danger of accusing a statesman undeservedly), is treating the
friend of his country, and detector of vilany, worse than we treat a thief
or a highwayman.  For we seize nothing of what we find in the possession
of such people, but what is likely to have been unfairly come by.  But the
truth is, neither thief nor murderer, is so much the object of a
statesman's vengeance, as the man who detects and exposes ministerial
rapacity.

     In the pleadings against Almon against a writ of attachment, it was
observed, that in prosecuting by attachment the court exercises the
peculiar and distinct providences of party, judge, evidence and jury. 

     It was, among other things, argued in defence of him against a writ
of attachment, that Lord M------- had several methods of doing himself
justice without this unconstitutional one; he was a member of a most
illustrious body, who would never suffer the slightest reflection on the
character of any of their members to pass unnoticed or uncensured; that as
a peer of the realm, he was entitled to his action of scandalum magnatum,
wherein he need not fear but that a jury would give him a proper
satisfaction for any injury he should prove to them he had received. 

     Let us observe how differently different men have behaved in respect
to liberty of speech, and writings on political subjects. 

     Timoleon, when he was advised to punish one who had scandalized him,
answered, "So far from punishing on such occasions, I declare to you, that
it has long been my prayer to the gods, that Syracuse might be so free,
that any man might say what he pleased of every person". 

     Domitian encouraged the informers as much as Titus discouraged them. 

     Constantine punished the delatores, or informers, with death.

     Theodoseus repealed the laws against seditious words. "If", he says,
"such words proceed from levity, they are to be despised; if from folly,
to be pitied; if from malice, to be forgiven". I suppose, because the
malicious are sufficiently punished, by leaving them to their malice, and
because the more injurious the offender, the more humanity, and the more
Christian spirit appears in forgiving him. 

     Augustus used to say "In libera civitate, etc. In a free state, the
tongues of the subjects ought to be free". 

     The Abbe de Thou compliments Henry IV. of France, that his subjects
might speak, as well as think freely.  Tacitus celebrates the Emperor
Trajan on the same account. 

     Caligula rejected an information of a pretended conspiracy against
his life, saying, "I am not conscious to myself of any action that can
deserve the hatred of any man, therefore I have no ears for informers". 
Happy for himself and Rome had he kept in this way of thinking.  How
pitiful the case of a prince or a statesman listening after railers and
scribblers.  How glorious that of the princes or statesmen, whose
rectitude of conduct enables them to rise superior to the malignancy of
the envious and seditious.

     Titus never shewed severity, but against informers.  If libellers
attack him unjustly, he held them more pitiable than blamable (because
they made themselves odious); if they accused him justly, nothing could be
more unjust than to punish them. 

     Mild means for this purpose are much preferable to severity.  The
intriguing Spanish Ambassador Gondolva bribed even the ladies, to keep up
such discourse at their routes as suited his purposes.  Omits a present to
Lady Jacobs.  She resented it and instead of returning his salute from her
window, only gaped at him several times.  He sends to know her meaning. 
She answered, "She had a mouth to stop, as well as other ladies".

     The Czarina says, "Great care ought to be taken in the examination of
libels, how we extend the crime beyond a misdemeanour subject to the
police of a town or place, which is inferior to a crime; presenting to
ourselves the danger of debasing the human mind by restraint and
oppression, which can be productive of nothing but ignorance, and must
cramp and depress the rising efforts of genius." 

     Burnet makes no hesitation about the necessity of the government's
having power to confine suspected persons in times of danger; but not of
security.  It was proposed by the lords, to make some limitations for
seizing persons, A. D. 1690.  But it was rejected by the commons, and they
thought it was better to leave the whole to parliament, that they might
indemnify violations of Magna Charta, when they thought the ministry
justifiable in seizing and confining suspected persons. 

     On occasion of Plunket's conspiracy, A. D., 1723, several lords
protested on passing the bill of attainder against him, for the following
reasons, which express a noble spirit of liberty, and an amiable
tenderness for the safety of accused subjects. 

1. "Because bills of this nature, as we conceive, ought not to pass but in
case of evident necessity, when the preservation of the state plainly
requires it, which we take to be very far from the present case; the
conspiracy having been detected so long since, and the person accused
seeming to us very inconsiderable in all respects, and who, from the many
gross untruths it now appears he has written to his correspondents abroad,
must appear to have been an impostor and deceiver even unto his own party. 

2. Proceedings of this kind, tending to convict and punish, are in the
nature, though not form, judicial, and do not let the commons, in effect,
into an equal share with the lords in judicature, which the lords ought to
be very jealous of doing, since the power of judicature is the greatest
power the lords have; and there will be little reason to hope, that if
bills of this nature are given way to by the lords, the commons will ever
bring up impeachments, or make themselves accusers only when they can act 
as judges. 

3. This bill, in our opinion, differs materially from the precedents cited
for it; as in the case of Sir John Fenwick, 'tis plain by the preamble of
that bill, that the ground most justified for proceeding against him in
that manner was, that there had been two legal witnesses proving the high
treason against him, that a bill was found against him on their evidence,
and several times appointed him for legal trial thereon, in the ordinary
course, which he procured to be put off, by undertaking to discover, till
one of the evidences withdrew; so that it was solely his fault that he had
not a legal trial by jury; all which circumstances, not being in the
present case, we take it they are not all to be compared to one another.

4. As to the acts which passed to detain Counter and others concerned with
the conspiracy to assassinate the late King William, of glorious memory,
we conceive these acts were not in their nature bills of attainder, as
this is; but purely to enable the crown to keep them in prison,
notwithstanding the laws of liberty; whereas this is a bill to inflict
pains and penalties, and does import a conviction and sentence on the
prisoner, not only to lose his liberty, but also his lands and tenements,
goods and chattels, of which he having none, as we believe, we cannot
apprehend why it was inserted and this bill not drawn on the plan of
Counter's &c. unless it was to make a precedent for such forfeitures in
cases of bills which hereafter be brought, to convict persons who have
great estates, upon evidence which does not come up to what the law
requires.

5. If there be a defect of legal evidence to prove this man guilty of
high-treason, such defect always was, and, we think, bills of this nature
brought to supply original defects in evidence do receive countenance,
they may become familiar, and then many an innocent person be reached by
them, since 'tis hard to be distinguished, whether that defect proceeds
from cunning and artifice, or from the innocence of the party. 

6. This proceeding by bill, does not only, in our opinion, tend to lay
aside the judicial power of the lords, but even the use of juries; which
distinguishes this nation from all its neighbours, and is of the highest
value to all who rightly understand the security and other benefits
arising from it; and whatever tends to weaken or alter that great
priviledge, we think, is an alteration in our constitution for the worse,
though it be done by act of parliament; and if it may be supposed, that
any of our fundamental laws were set aside by act of parliament, the
nation, we apprehend, would not be at all the more comforted from that
consideration, that the parliament did it.

7. It is the essence of natural justice, as we think, but is most surely
the law of the realm, that no person should be tried more than once for
the same crime, or twice put in peril of losing his life, liberty or
estate; and though we acquiesce in the opinion of all the judges, that if
this bill should pass into a law, Plunket cannot be again prosecuted for
the crimes contained in the preamble of the bill, yet it is certain, that
if a bill of this kind should happen to be rejected by either house of
parliament, or by the king, the person accused might be attacked again
and again in like manner, in any subsequent session of parliament, or
indeed for the same offence, notwithstanding that either house of
parliament should have found him innocent, and not passed the bill for
that reason; and we conceive it a very great exception to this course of
proceeding, that a subject be condemned and punished, but not acquitted
by it. 

8. We think it appears in all our history, that the passing bills of
attainder as this, we think, in its nature, is, (except, as before is
said, in cases of absolute and clear necessity) have proved so many
blemishes to the reigns in which they passed;  and therefore we thought it
our duty in time, and before the passing this bill as a precedent, to give
our advice and votes against the passing it, being very unwilling that any
thing should pass which, in our opinions, would the least derogate from
the glory of this reign. 

9. We apprehended it to be more for the interest and security of his
majesty's government, that bills of this nature should not pass than they
should, since persons who think at all, cannot but observe, that in this
case, some things have been received as evidence, which would not have
been received in any court of judicature; that precedents of this kind are
naturally growing, as we think, this goes beyond any other which has
happened since the Revolution, and if from such like observations they
shall inf infer, as we cannot but do, that the liberty and prosperity of
the subject becomes, by such examples, in any degree more precarious than
they were before, it may cause an abatement of zeal for a government
founded on the Revolution, which cannot, as we think, be compensated by
any of the good consequences which are hoped for by those who approve this
bill." 

     A. D. 1640, the Earl of Warwick and Lord Brook were apprehended and
their papers seized, on suspicion of rebellious designs, by warrents of
the secretaries of state.  They complained of breach of privilege, which
it was not, because the supposed crime is not covered by privilege.  The
warrant was declared illegal; and the proceeding a breach of privilege,
because the two lords were in parliament.  Satisfaction was made to them,
and the clerk of the council brought on his knees before the lords, and
afterwards committed to prison. 

     A. D. 1680, the Lord Chief Justice Scragg's general warrants for
seizing libels, books, pamphlets, &c. were declared by the house of
commons arbitrary and illegal, and he was impeached. 
    
     A. D. 1692, complaint was made by Lord Marlborough and others, of a
breach of privilege, they being committed to the tower, without
information upon oath, and bail refused, in time of privilege.  On this
occasion a bill was proposed to indemnify secretaries of state for such
committments in treasonable cases, and to limit their powers by law.  But
that incorrupt house of commons would only resolve, that such powers be
illegal, secretaries of state should exercise them at their own peril, to
be condemned or justified according to the case. 

     One Spence, was taken up at London, A. D. 1684, on suspicion against
being concerned in a plot against Charles II.  He was sent to Scotland to
be examined.  There he was required to take an oath to answer all
questions that should be put to him.  "This", says Burnet, "was done in
contradiction to an express law against obliging men to swear; that they
will answer 'super inquirendis' ".  The poor wretch was struck in the
boots, he was kept from sleep nine days and nights, and afterwards put to
the torture of thumbkins, till he fainted away.  See also the horrible
cruelties inflicted, about the same time, on Baile and others. 

     Three peers and the Bishop of London, publicly opposed James's
dispensing with the test for papists. 

     Even under James II, the judicious part of the house of commons
proposed to demand redress of grievances before they granted supplies. 

     Mr. Cook, a member, was sent to the Tower for saying, "We are
Englishmen.  We are not to be threatened".  He was an Englishman.  But
what were they that sent him to the Tower for such a speech? 

      A. D. 1728, a bill was brought into the house of commons, to
prohibit lending money to foreign princes, &c. with a clause, that the
attorney-general be impowered by an English bill in the court of
exchequer, to compel the effectual discovery of any such loans, and that
in default of answer to such bill, the court shall decree a limited sum
against the defendant refusing to answer.  This was like examining by
interrogatories.

     Walpole said, the same strictness was observed before, in prohibiting
commerce with the Ostend Company.  But Sir J. Barnard said, the liberties
of Englishmen were weightier than any arbitrary precedent. 

     A. D. 1690, when the subscriptions of several lords were forged to
certain treasonable papers, which was a direct attempt on the very lives
of those nobelmen, the offenders, though clearly convicted, were only
punished with whipping and the pillory, which, to the reproach of our
constitution, is the only punishment our law has provided for such
practices. 

     Some lords protested, A. D. 1692, against subjecting the press to the
"arbitrary will of a mercenary, and perhaps ignorant licenser", to the
checking of learning, the damage of literary property, and encouragement
of monopolies.

     Many printers were indicted for scandalous and seditious libels. A.D.
1681. The juries brought them off by not finding the writings malicious or
seditious and returned for verdict ignoramus.  They did not bring
in for their verdict 'Guilty of printing and publishing only' or, 'Guilty
of what has no guilt in it', which we have lately seen done by a learned
jury. 

     In the reign of George I, it was industriously spread into many parts
of the kingdom, soon after his assession, a pamphlet, intitled, English
Advice to the Freeholders of Great Britain. Government offered 1000 l.
for discovering the author, and 500 l. for the printer.  In vain, it was
supposed to have been written by Atterbury.  Answers were published; which
was wiser than setting a price on the author and printer. 

     A. D. 1770, it was a matter of much speculation, that a bookseller
should be punished for his servant's selling a book which was brought into
his shop, while he was out of town, and though he was offered, that the
bookseller disallowed the selling of the book.  The bookseller was put to
140 l. expence, and obliged to find bail to the value of 800 l. 

     These severities upon private persons, who write and speak freely of
ministerial conduct, would, by an incorrupt parliament be immediately
restrained, and to the subjects be set at liberty to remark as they
pleased, upon the conduct of those who undertook the management of their
affairs; but while ministers have a scheme of iniquity to carry on, it is
not to be wondered that they endeavour, by all manner of severities, to
drive away those who come with prying eyes to inquire into their proceedings.