tioned?-May never you, gentlemen, nor I, be fenfible of fuch a maxim carried into practice! Nay, the very gentlemen who put it, cannot from their hearts confent to it.-We in this cafe lie under difadvantages enough; our adverfaries have great power; nay, their power's unknown, even to themselves, at all times; few of them know the limits of it: it may be almost what they have a mind. Though great, though wife, this houfe may be, yet they are but a body of men, and therefore fallible; for it is not in men, or bodies of men, to be infallible. -By this great power of the Houfe of Commons, we, for our client, are debarred from making use of all the means of defence we could against other people. Much might be said, but much we dare not fay; I own I dare not. But let me fuppose, only for argument's fake, that a Houfe of Commons may do wrong, it is not impoffible for them to err; I do not say that they do in this cafe; former Houses of Commons certainly have erred, and thofe errors have been redreffed by a future House of Commons, and that on a knowledge of the cafe by complaint: and if the House of Commons ever has erred, by the fame rule it may err again. Therefore allow me to fuppofe, only for fuppofition and argument's fake, that the Houfe have done wrong in their votes on this affair (not that I say they have); they have voted this pamphlet a libel, and have turned it over to the common-law, for the defendant thereby to be tried for it; then they have left the common-law to be judge of it. If fo, fhould the defendant's council be debarred (if it was neceffary, but which in my opinion is not) from contradicting, and proving this to be no libel; which would, in fact, be contradicting and oppofing the opinion and vote of the House of Commons? I only put this by way of fuppofition; to fhew, that if thefe arguments were neceflary to be gone upon, the difadvantage we lie under. Much might be faid, even on this; but much I dare not say. I know not scarce what I dare fay; but I fhall not go on this point, as I think it is not neceffary to our prefent purpose; and I hope we can and fhall be able to fucceed without it. I only mentioned it because the gentlemen on the other fide feemed defirous ftill further to fhut the mouths of the defendant's council, who are under difficulties enough already. The Houfe of Commons have voted this pamphlet a libel: great is the power of a vote of that Houfe; and where is the man who dares find fault with, or contradict, the opinion of the Houfe, efpecially when voted fo? I dare not, and bold must be the man who dares; he knows not the rifk he runs, by juftifying or maintaining a book not to be a libel, when the House of Commons have voted it fo. That man may perhaps have a vote against himself; for what cannot, a Houfe do, whofe power is fo great? What therefore I fhall infift upon is this:

The

The FACT charged in the information is, That the defendant, Owen, published this pamphlet, maliciously, feditiously, fcandaloufly, and falfely, to the calumny of the House of Commons of Great-Britain, and in order to difturb the peace of the nation; and this he has done wittingly, wilfully, maliciously, fcandaloufly, &c. This is the FACT laid to his charge; which the gentlemen have been very far from PROVING. Only proving the fale of the book,does not prove all thofe opprobrious and hard terms laid in the charge against him. If his felling and publishing this book maliciously, with a feditious intent, fcandaloufly and falfely, with a defign to calumniate the House of Commons, and in order to disturb the peace of the nation, is not proved, then this great charge in the information fails. Let the gentlemen prove thofe words (the intention) if they mean any thing by them; if they do not prove these terms, this bad intent, for in that lies the crime, then it is no more than felling printed paper, in which furely there can be no fault. Then what are these words? If the gentlemen mean any thing by them, prove them; if they mean nothing, but words of course and form, let the gentlemen fcratch them out, they are needlefs; which if they do, their information will be very defective. But they will not confent to scratch them out I am fure; why then they must mean fomething by them, which if they do, confequently they must prove them. These words conftitute the charge, which if they do not make out, will you, gentlemen, clap your hands upon your hearts, and fay this man is guilty? guilty of what? nothing; for nothing is proved, unless felling paper is a crime. Surely gentlemen your own breafts, your own confciences, muft tell you, when you confider of it, and pray confider it as your own cafe, fancy each of yourfelves here under a rigorous profecution, like this poor man; there is no crime proved, no malicious intent, no feditious defign; therefore not proved guilty of the crime laid against him. If a man be even a bad man, and you all know it, and is accused of a crime he is innocent of, furely none will find him guilty of a crime, when that crime is not proved, because you know him to be guilty of other faults. These things are plain, even to a demonftration, to every man. But this defendant, whose cause you are now judges of, will appear to be a man of very fair character; well affected to the government and conftitution in his principles; always was, and is a good fubject; a member of the church of England, and as well affected to, both church and state as any man in England. Therefore can any man believe, when we fhall have made this appear by fe-. veral witneffes of men of worth, fubftance, honour and credit, both clergy and laity, that he could be guilty of these things; that he intended this hurt laid to his charge? We shall prove

that

that he published more papers for the government, in the late rebellion, in 1745, and containing the most steadiness for government, and the most home and inveterate things against its. enemies, than any printer of his time; fo that I believe, if the rebels had gained the day, his zeal might have caufed his punishment. Will it then appear likely that he is guilty of these charges laid againft him?--I muft obferve one thing, which is the danger of your finding a verdict SPECIALLY.

Suppofe you find him guilty of publishing and selling this book; guilty includes guilt, then guilty of what? Selling paper. Where is the guilt?-Take care gentlemen of being deceived by finding him guilty any way; by bringing in your verdict any way against him, you render him liable of the confequences of the whole; that is, to the fame penalties that he would have been liable to, if he had committed the whole crime laid to his charge, and that charge fully proved against him. After you have brought in your verdict, it will be in vain for you to say you did not intend he fhould be punished; you only found that he had published, but not committed the crime; it will be in vain for you to petition for mercy, mercy will then be in other hands; it will be out of your reach; and he will be at the mercy of others, who may not look with the fame eyes as you: when you have found him guilty, it will be in other breafts to punish; it will then be too late for you to interfere. By finding him guilty, you do all that you can against him, and then it will be out of your power to ferve him. You must therefore confider him guilty of this great crime, and confequently deferving of great punishment, or not. But if you think he is not guilty, and not deferving of great punishment, then he has not committed this great crime, then confequently they have failed in their information, and he is innocent of it; if innocent confequently not guilty. Mr. Attorney tells you this pamphlet means, and is writ with the intent that is laid in the information; he says because the pamphlet compares the parliament to In, it must certainly mean inquifition; and in my opinion it may, and does as likely mean information; and I affure you gentlemen, I have very little love for information, as well as Mr. Attorney for In; it is certain that these things which will bear feveral interpretations, muft, nor can, have no weight with you; who fhould either put a good conftruction upon them, or none at all: you must confider too, thatthere is a great difference between the author and the printer; the author knew well what he intended, and the whole fenfe of the pamphlet; therefore liable to have the fenfe of the pamphlet interpreted"

against

against him; but a bookfeller may fell a book and not have any intent but profit; and be quite ignorant of the contents, at leaft the fpirit of them; therefore it is well worth confidering how intent makes a crime, and how far not; every man may err, and if unintentionally he cannot be guilty of a crime before God; and if fo, it would be prefumption in man, to make any comparison of his own justice; what is not criminal with God, cannot be with man. The gentlemen on the other fide have not proved the intention.

The Reverend Mr. Warner, Mr. Goflin, Mr. Hawkins, and feveral others were called, who proved Mr. Owen to be a good fubject, a true man to the church of England, zealous for the eftablishment, that he had printed feveral papers for the government, and woul dnot have publifhed the pamphet, had he known or thought the contents bad or any hurt in them, and the farthest man in England from doing fuch a thing.

Mr. Pratt next rofe up for the defendant, and having for fome time gone upon different parts of Mr. Ford's argument; (which it cannot be neceffary to repeat, as Mr. Ford's fpeech has just been given at length, and as nearly verbatim as poffible) he faid, "Then gentlemen to fhew you how neceffary it is to prove the intention; if there is an indictment preferred against a man for an affault, with an intention to ravifh; the intention: must be proved, or elfe the jury cannot find him guilty. The fame of an affault with an intention to kill, if the intention is not proved, he must be acquitted. If he kills, and the intention is not proved, that is, if it is not proved that he killed premeditately and of forethought, it is but manflaughter. Therefore in the cafe before us, if that part of the information is not proved that he published maliciously &c. you must acquit him.The privileges of parliament are not known to the common law; perhaps they may judge and punish: I know not their privileges, nor perhaps are they to be known; may not known to themfelves wholly they may be just what they pleafe. But they have not punished this man; they have turned him over to the common law, therefore he must be tried by the common law. Yet as hath been justly observed, they may take the thing again into confideration, and punish him in the houfe; and if fo, he may be punished twice for the fame fault, by two different fentences; which by the common law a man cannot. Mr. Attorney will not anfwer for the houfe of commons, that it will not be fo. Then gentlemen confider what injuftice it would be to punish a man here, who is at the fame time liable to be punished there, if the houfe thinks fit.--Much might be faid more than we dare fay for our

client in this cafe: our mouths are already half fhut, and the tenets the gentlemen on the other fide lay down, are to shut them QUITE; but may you, this nation, nor I, ever feel the effects of fuch tenets, or fee them put in practice. It is a rule in law, and a principle in equity, to hear both fides; therefore we may justly complain in this cafe. It is a common proverb (and a very wife chancellor affirmed that proverbs were the wisdom of a people)loofers must have leave to speak." In the fcripture Jobe complains of the difpenfations of providence, the caufes and confequences of which he did not comprehend; one would imagine therefore that as complaints áre fo natural to fufferers, they may merit fome excufe where the affliction exceeds proper bounds. It may be faid indeed, they are capable of raifing a dangerous compaffion. But to prevent this, will it be right to tell a free people, happen what will, you fhall never complain? Before this is faid it should be well confidered. [Mr. Pratt then went again upon different parts of Mr. Ford's excellent fpeech, which he enforced in a very ftrong and fine manner, and with which he concluded.]

The attorney general got up again and made a reply, the principal matter in which was, "That in an indictment for murder, were always these words, which are words of courfe, and of mere form, viz. not having the fear of God before his eyes, and being inftigated by the Devil. Now according to the rule laid down by the gentlemen, this must be proved, which is impoffible; for the man would fay, he was not fo inftigated, and had the fear of God before his eyes; and who could prove that it was otherwife? Now this evidently fhews all thofe things to be merely matter of form."

The chief juftice next fummed up the evidence; and delivered it as his opinion, that the jury oUGHT to find the defendant guilty; for he thought the FACT of publication was fully proved; and if fo, they could not avoid bringing in the defendant guilty.

The jury went out and ftaid about two hours; when they came into the court, the foreman answered for the reft, and when the question was put, he faid, Guilty; NOT GUILTY, NOT GUILTY, MY LORD. The firft word guilty being faid by mistake; upon which there was a loud huzza; and the jury went away. But, at the defire of the attorney general, they were called into court again, and afked this leading question, viz. "Gentlemen of the jury, do you think the evidence laid before you, of Owen's publishing the book by felling it, is fufficient to convince you that the faid Owen did fell this book?" At which the foreman appeared a good deal fluttered;

and