Protests in the Irish House of Lords, against the Oltennial Bill. 19

Die Lunæ, 15 Die Februarii, 1768.

Upon reading the Order of the Day, an engroffed Bill, intitled an Act for limiting the Duration of Parliaments was read a second Time, and a Debate arifing, whether the faid Bill fhould be committed;

It was refolved in the Affirmative.

Diffentient:

Ecause altering a long established conftitution found by its effects to be wifely formed is contrary to good policy, as doubtful happiness is only fuggefted in the place of real and experienced.

2. Becaufe, to judge truly of new fyftems offered for this country, we can only have recourfe to the effects produced, where fuch policy is established: the allowed effects in a neighbouring kingdom convinces us of the inconveniences which must confequentially arife from frequent elections in Ireland.

3. Because, although the act for the limitation of parliaments fhould be thought ufeful and falutary to Great Britain, yet we apprehend, from the different circumftances and fituation of this kingdom, it cannot be prefumed, it will have the fame effect here, at least at prefent; and rather think that such a law will be extremely detrimental to our infant manufactures, and introduce fuch corruption, idlenefs, and licentioufnefs, as the poverty of this kingdom can in no fort support.

4. Becaufe, from the number of papifts, and the frequent infurrections and rifings of perfons difaffected to our government, we apprehend it more than poffible, that a parliament of certain duration may expire in fuch times of danger as may render it difficult and improper immediately to convene another; and we have rather chofe to prevent the confequences, that may arife from our being without a fubfifting parliament by giving our diffent to this bill, than to enumerate more particularly thofe mifchiefs and inconveniences which we ardently with our pofterity may never experience by the paffing it into a law.

I

SIR,

Το

Here fend you the best account my memory will furnish me with, at this diftance of time, of the fubftance of feveral converfations I formerly had with Mr. S- E-, of Lincoln's Inn, (author of the preface to the State Trials, and the publisher of lord chief justice Hale's Hiftory of the Pleas of the Crown) relating to Franklin's profecution for a libel, for publishing in the Craftsman an article of news from Hanover.

Franklin was profecuted upon information. As to which method of proceeding, Mr. E-made no fcruple of openly declaring his opinion, that it was oppreffive and unconstitutional, and the fcandalous remains of Star-Chamber practice.

The libel (which is an innocent word of itfelf) was laid in the information to be falfe, fcandalous and malicious; which epithets are the gifte of the information or indictment, and the very circumftance that makes the writing or publication criminal.

Frankin's council, in his defence, offered to prove the truth of the libel. But the court would not fuffer it; alledging, that its being true was fo far from a juftification, that it was an aggravation of the crime.

Mr. E, who was prefent at the trial, thought Franklin's counsel deficient in their duty, for not addreffing themfelves then to the jury, in fome fuch manner as this:

Gentlemen of the jury,-This honourable court has given it as their opinion, that it is not neceflary by law for a libel to be falfe to make it criminal; and therefore do not allow us to enter upon the proof of its truth, which we are prepared for, and defirous to do. The council for the profecution have not thought proper to lay before you any evidence of its falfhood.

But, Gentlemen, there is one circumftance attending this' cafe, which my duty to my client, my obligation to truth and to the public, force me to mention, and to prefs upon your confciences as honeft men, and men of understanding. This libel is laid in the information to be falfe. Now, fuppofing it not necefiiry by law for a libel to be falfe to make it criminal; fuppofing alfo, that you are of opinion with this honourable court, that the truth of a libel is an aggravation of the crime of publication; yt, I will fay, and infift upon it too, that the proof of the fa'fhood of the libel now before you,

is

is neceflary for your justification in bringing in a general verdict, guilty. For, by fuch general verdict, you will, upon your oaths, find Mr. Franklin guilty of publifhing a falfe libel. How you can anfwer this to God, to your own confciences, or to your fellow fubjects, when the counfel for the profecution have not pretended to prove the falfhood, and we are ready to prove the truth of it, I must leave with you. If the counsel for the profecution will strike the word falfe out of the information, your bufinefs will be to confider the charge as it will then stand; whether you in your confciences believe this article of news is fcandalous, and published with a malicious intent. If you doubt either of thofe circumftances, you muft, even then, acquit the prifoner, if you mean to do him, or yourselves juftice. If you are very clear as to the truth of those circumstances of the charge, and the proof of the publication by Mr. Franklin is evident, you may find him guilty, and leave it to the abilities of the learned gentlemen for the profecution to fupport the legality of their information, if they can.

Befides, gentlemen, if you should, as the information now ftands, bring in a general verdict, guilty, and the prisoner fhould hereafter move in arreft of judgment, that it is necef-» fary for a libel to be falfe to make it criminal; the court will very properly reply, that this motion comes too late; for the libel has been already found, by twelve men good and true, to be falfe; that this was a fact, which remained with the jury to determine, and the court muft proceed upon their verdict, which the court has no authority by law to alter.

Gentlemen of the jury, I have purposely avoided that profufion of words, which tends rather to confound the underftanding, than to inform the judgment. I have delivered my fentiments in as plain and concife a manner as I was able. My view has been to lead you directly to the truth, and to fix your attention there. Know the truth, and the truth jhall make you free. I doubt not but you will acquit yourselves as good men and true; and do nothing to regret hereafter, when repentance fhall come too late.

Mr. Ewas to the laft of opinion, that by common-law, the truth of a libel would juftify it; that the contrary doctrine was too modern to be established as common law; that the precedent upon which it originally ftands, is the famous ftar-chamber cafe; a court! the illegality of whofe proceedings have been folemnly condemned by the legiflature. Surely, a determination of that infamous court, against the antient ufage and cuftom of this realm, cannot be deemed a legal

prece

precedent in this land of liberty; or fufficient to remove the abfurdity of fuppofing the word false to have no meaning, or that it could be intended in its antient legal ufe, to convey an idea different from that which the univerfal confent of mankind in all ages and nations have annexed to it.

The courts of law have no legislative authority. They are only interpreters of the law. But what interpretation they have given to the word falfe different from the idea that it conveys to all mankind, I have not yet heard. To fay that it has no meaning, is rather too abfurd to pass with a jury, whom God has bleffed with common fenfe.

I have been told, that an opinion of any court of law, unless given upon a folemn debate before them upon the point, is but an extra-judicial opinion, and confequently not law. Now, I fhould be glad to be informed whether this point, that it is not neceffary for a libel to be falfe to make it criminal, has ever yet been determined to be law upon a profeffed folemn debate upon the queftion, except by the ftarchamber; and whether it has not hitherto pafied for fuch by an extra-judicial opinion of our courts, who refused the debate to be folemnly entered upon, and ftopt it by an hafty judgment, whenever it was propofed, relying upon the ftarchamber cafe as their authority.

Common law is the antient ufage and cuftom of this realm, and fuppofed to be founded in common fenfe and reafon. This is the law which, when broke in upon by venal judges of the courts of law, our forefathers fpilt their blood to maintain against the encroachments of arbitrary power. Nothing can legally alter it but an act of the legislature, which there is no pretence for in the prefent cafe. And God forbid the legiflature fhould fo far interfere, as to enact THE TRUTH a criminal libel. If they fhould fo far betray their truft, I hope they will put their meaning beyond all difpute, by ordering the word TRUE to be added to the charge, as an epithet of aggravation, in the place of the old conflitutional word, FALSE.

In these very modern times, the courts of law have acted more confiftently, though not more legally, in leaving the word falfe out of the information or indictment. But then, I am at a lofs to know how they fupport this innovation as a point of common-law. I know that Mr. E--, when he was writing his preface to the flate-trials, had the records fearched both at Westminfter and in the tower, for any one indictinent, or information, for a libel, which had not the word falfe in the accufation; but no fuch thing was to be found. A great many appeared, but all with the word falfe. Surely,

this

this is of too modern date to be established as common-law; especially as it is directly oppofite to the antient, regular and conftant ufage from time immemorial. It owes its birth to thefe latter days, in which we have fhewn our ingenuity and heroifm, by forcing the antient usage and cuftom of this realm to give way to onr private views and paffions; which, in this point at leaft, the judges of our courts of law fince the revolution, (if I fay from the beginning, the records will justify it) have never dared to do before. All those courts of law fince the revolution, who have declared the word falfe not neceffary to conftitute the crime, have continued the word falfe in their charge for a libel; chufing rather to destroy the fubftance by declaring the word falfe to have no meaning, than to hazard their indictment by an illegal deficiency in the form. I am apt to think the court of ftar-chamber did the fame; but that I am not certain of, as I have not yet been able to inform myself of the whole of their proceedings.

The Hiftory of the two P's; or, an half hour's converfation on horseback, concerning Mr. Periwinckle and the Puppet-fhew-man. By Phileleutherus Americanus,

A$

Non fua verba.

ADDISON Mach. Geft.

"In florid impotence he speaks,

"And, as the prompter breathes, the Puppet fqueaks."

POPE.

S I was lately travelling through a certain great town in the fouth of England, I faw a vast number of people tumultuously affembled round a well-dreffed gentleman-like perfon, who fate with the utmoft compofure and tranquility, ftrongly guarded by conftables, in the public ftocks. This naturally excited my curiofity, and I ftopped my horse to enquire of a man, whom I faw ftanding by himself at a little distance from the mob, what might be the occafion of the gentleman's confinement; who anfwered me very fnappifhly, and as I obferved with fomewhat of a Scottish accent, that the gentleman, as I called him, was a moft atrocious villain, that the stocks were too good for him, and that he was sure he hould one day ice him hanged for a traiterous, blafphemous,

bawdy