The Works of Samuel Johnson, LL.D. Volume 10. Samuel Johnson
embargo was laid by his majesty's proclamation, which surely was not issued to no purpose, and which ought not to be disobeyed without punishment.
Sir John BARNARD spoke next, to this effect:—Sir, I cannot but be somewhat surprised, that a gentleman so long conversant in national affairs, should not yet have heard or known the difference between a proclamation and a penal law.
By a proclamation, his majesty may prevent, in some cases, what he cannot punish; he may hinder the exportation of our corn by ordering ships to be stationed at the entrance of our harbours; but if any should escape with prohibited cargoes, he can inflict no penalties upon them at their return.
To enforce this prohibition by the sanction of punishments is the intention of the present bill, but a proclamation can make nothing criminal, and it is unjust and absurd to punish an action which was legal when it was done.
The law ought, sir, in my opinion, not to commence till time is allowed for dispersing it to the utmost limits of this island; for as it is unreasonable to punish without law, it is not more equitable to punish by a law, of which, they who have unhappily broken it, could have no intelligence.
A future day was agreed to.
HOUSE OF COMMONS, DEC. 2, 1740
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