UNIVERSITY 
 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 SCHOOL OF LAW 
 LIBRARY 
 
 
A 
 
 LETTER 
 
 CONCERNING 
 
 LIBELS, WARRANTS, 
 
 THE 
 
 SEISURE of PAPERS, 
 
 AND 
 
 Sureties for the Peace or Behaviour; 
 with A 
 
 VIEW to fome late PROCEEDINGS, 
 
 AND THE 
 
 DEFENCE of Them by the Majority 
 
 with the 
 
 POSTSCRIPT and an APPENDIX. 
 
 The SIXTH EDITION. 
 
 The Child may rue, that is unborn, 
 
 The Hunting of that Day. Chevy Chase. 
 
 LONDON: 
 
 Printed for J. Almon, oppofite Burlington Houft in 
 Piccadilly. 1766. 
 
 Ms : 
 
Books jufl printed for J. Almon, oppohtc Burlington' 
 Iloufe in Piccadilly. 
 
 I. A \ Impartial HisTORy of the l.vri: MI- 
 •**• NOKI1 'Y, Exhibiting the Conduct, Princi- 
 ples, ninl VlBWS ot' that Pari v, during the Years 
 i I, 1763, 1764, and 1765. With Original 
 Mi Price bound. 5 s. 
 
 JI. The I 1 I 1 r am! Pr< < BEDINGS of the Britimi 
 
 sf. of Com- the third, fourth, and 
 
 1 Siflions of the third Parliament of his late Ma- 
 jefty George II. held in the Years 1743, 1744, 1745* 
 and 1746. Compiled from Authentic Papers, and 
 compared with the Journal^. 
 
 Theft D( " my Speeches in which were furnifh- 
 
 ed by the Speakers themfelves, and all of them have been 
 compared with authentic Notes taken in the Houfe, aic 
 arranged partly upon the fame Plan with ChanDLI r'j 
 Collection, which is brought down to the Year 1742 ; 
 as is alfo Torbuck'sj but with fuch lmpn 
 from the Journals, and other authentic Papers, as render 
 it a Work eflentially ufeful to every Lover of Conllitu- 
 tional Hirtory, and worthy the Notice of every lhitiih 
 Legiflator. 
 
 The( oNTiM'ATioNof this interetfingWork is in great 
 I orwardneis, and will be publifhed early next Scafi n. 
 
 III. The PASSENGER. A new Paper, publifhed 
 Weekly, Price Two-pence Halfpenny each Number. 
 The 1 'irft of which was publifhed on the 26th 
 of Aprils 1766. 
 
 IV. A Collection of the mod valuable which 
 have been lately publifhed in i ilgland and America, on 
 the Subjects of taxing the Britifh C • and regulat- 
 ing theii I rade. In two Volumes^ Price 14 s bound. 
 
 V. A Colle&ipn of the moll efteemed Traces which 
 
 appeared during the Years I763, 1764, and I 765, Uj 
 
 the Subjects ol General Warrants, Seizure ol \\v; , 
 Publication of Libels, Difmiffion rs, the li- 
 
 nances, the late Ch . 8cc. fcc. In live Volumes. 
 Price 1 1. ics. bound. 
 
 VI. A Collection of the mod interesting I cttcrs, which 
 appeared in the Public Papers from the Autumn Ni 
 ciation in 1763, to the Change ol the Admininiftration 
 in 1 7 ' ' 5. In one Pocket Volume, P . od. 
 
 
LETTER 
 
 T O 
 
 M r. A L M O N, 
 
 B E I N G A N 
 
 C-; 
 
 DC 
 
 E N Q^U I R Y, &c. 
 
 SIR, 
 
 ^"3cs£~K O M E weeks after my Ton's fending vou 
 *^ 3 ^ ^ L*tfw /o //;* P«£/iV Advcrtifer, I was iur- 
 S^ ' ^ prized with the fight of a * pamphlet, where- 
 ^.^"^.M in a contrary doctrine is conveyed, altho' I 
 cannot fay directly affirmed ; from which laft circum- 
 ftance I guefs it to be the work of fome enterprising At- 
 torney, retouched by his Superior, who has ventured to 
 allert in print, what I do not remember to have hcarJ 
 any one gentleman avow in parliament, and for that 
 reafon, among others, has attracted my notice and in- 
 dignation. 
 
 Indeed, the difcourfe of late has run fo much upon 
 libels, warrants, and refolutions of parliament, that every 
 body's thoughts have been turned to thefe points. Now, 
 I do not think myfelf at liberty to fcan the private actions 
 of any man, but have a right to confider the conduct of 
 every man in public; and to approve or to condemn his 
 doings as they appear to me to be calculated, either for 
 the good or the hurt of his Country. 
 
 A King of England may be confidered in two refpe&s, 
 
 either in a public or private capacity. In the latter he 
 
 -may, as a man, indulge his own humour, in the cltablifh- 
 
 j ment of his houfhold and the choice of his immediate fcr- 
 
 :'vants. But in the former, he is wholly a creature of po- 
 
 B ' iiry ; 
 
 * The Majority defended. 
 
( 6 ) 
 
 ln\ ; his crown, his power, .in J his revenue II d n\(d 
 from and circumfcribcd by acl oi parliament* He is in- 
 deed th ::;!t iii rank of toe three independent pans of the 
 lature, andth ive hand of the whole j but the 
 
 Beers b) which he carries on the govern- 
 ment, are the fervants of the community, and the public 
 
 . is the folc object of the entire political frame. In 
 
 oriK -T, to prefervc a propei refpecl and chaftity 
 
 of [dea with regard to the crowned head, the royal name 
 u nevei to be introduced into any queltion of public trans- 
 actions. \\ uh this \ icw it is eltablifhed as a maxim, The 
 King tan Jo no wrong. In truth, h<- i-> fuppofed to do 
 every thing by the advice of his counfel and miniftcrs. 
 The IpeC' hea from the throne ; treaties of peace and war ; 
 the application of public revenue j appointment; to of- 
 fices in the date ; the direction of crown profecutions ; 
 and, in a word, every other act of government mult 
 therefore be always debated, queftioned, and blamed as 
 the :. ; ■ < I the minilter. As nothing can be done in a 
 limited monarchy, but what (bmebody is to be account- 
 able for it. in evi \ miniller in bis department is to be 
 
 id to act at bis peril. 
 
 re is no inicparable connection between aminifler 
 
 reign. The latter is not, by the duty of his 
 
 orfiee, t.-> luppoit any one man againit the general lenti- 
 
 i le ; and , whatever is laid or 
 
 written againfl the adminiftration, i^ not to be regarded 
 
 n his throne. Indeed, were it other- 
 
 i n .\ J ever ne an and 
 
 no lib< the prefs cxifl ; foi , and 
 
 cenfure in print, would be towing fedition, it not 
 
 .in tiie fl . 
 
 By the old conftitution, and afterward 
 I tarta, no • upon his ti ial fa 
 
 fence, until a grand Jury bad found a bill ol entj 
 
 or, of their <><.. n know (i nun n; th< 
 
 !'. virtue ol pai ticular (tatu 
 crin ice became prefentable by conferva- 
 
 tors Ol jufti< CS ot th In prOCeis ol tune, mi(- 
 
 ame to b , ted by an information filed 
 
 troner or Attorney, that i ; , the matter ol 
 
 the j andth! nfidered as the prefent- 
 
 It oJ the King. A petty jury was afterwards to tiy 
 
 the 
 
( 7 ) 
 the truth of every fuch indictment, presentment or infor- 
 mation. But, Henry the 7th, one of the worft Princes 
 this nation ever knew, procured in aft of parliament 
 which, after recking mai and abufes in trial bv 
 
 jury, and pretending a remedy for the fame, gives a fum - 
 mary jurifdiciion to cefl at officers of Kate, calling 
 
 to them a biihop, to fummon, try and panifc ol their 
 OWU mere discretion and authority, any perfons who fhall 
 be aecufed of the offences therein very generally named 
 and dclcribed. In fhoit, the court of ftarch amber is, \y 
 this act, fo enlarged in its jurifdi&ron, th t ir may be faid 
 to be erected, and both grand and petit juries in crown 
 matters are in great mcafure laid aiide, as the Attorney'-' c- 
 ncral now brings everv thing of that fort before this court, 
 T ..h:eh, by its conftif.ition, never can make ufe of cither. 
 In lieu or an indictment or prefentm?nt of their peers, 
 peop'e of all degrees arc put on their trial by a cbar»c 
 framed at the pleal'jre of the Attorney-general, called an 
 information, and filed by him ex officio •, without even the 
 fanclion of an oath ; and the ftar-chamber decide thereof! 
 mod confcientioufly, but, as mofl true courtiers would 
 wifli to do, without the intervention of a jury. The 
 faces of the fubjeet are fo ground by tfiis proceedings 
 that every body at length is alarmed, and the people in 
 ftrttggiing with the cre#n happening to get the better, the 
 patriots of the time feized an occafion, towards tbe latter 
 end of the reign of Charles the Kirft, to extort irom that 
 martyr to obffinacy, an aci for the abolition of this moil 
 oppreffive jurifdidtion. But, by fome fatality, the At- 
 torney-general's information, was overlooked and fuffered 
 ftill to remain, and the uCe that is now made of it every 
 body knows. It is reported, however, that my Lord 
 Chief Juftice Hale had fo little opinion of the legality of 
 this kind of informations, that he ufed to fay, " If ever 
 «« they came in difpute, they could not Hand, but muft 
 u neceffarily fall to the ground." 
 
 It was alio long thought, they could not be filed where 
 the King was immediately concerned, and fo the old books 
 fay; but, it is now certain that they are not limited by 
 any thing befides the difcretion of the Attorney-ge-ierar. 
 who is an officer of the Crown, durante bene plr.dto, and 
 not upon oath. They may, in time, become an ordi- 
 nary engine of Adminiftration, as much as any G zette 
 
 B2 '0/ 
 
( 8 ; 
 
 or common courier. Indeed, the fccrefy, caff, and cer- 
 
 tainty or Living a man under a heavy proiecution in the 
 C .'. - : bout any controul, by this mode of 
 
 information, are what I il much more formidable 
 
 than tlit commor, rcgulai information! which, by virtue 
 of a ft.uutc paffed foon after the revolution, can not now 
 be filed, for aft or mifdemeanor, without c.\- 
 
 piefs order of the King's Bench, and the Informers enter- 
 ing into a recognizance to pay cofts to the Defendant if 
 acquitted upon the trial, or if luch informer do not pro- 
 ceed within a year, or procure a Noli Profequi. The 
 Attorney general; however, informing ex officio never 
 ] . any cofts: to 'bat he may harrafs the peace of any 
 man in the realm, and put him to a grievous expence, 
 without ever trying the matter at all. Indeed, the cofts 
 of the Crown-office are fo enormous, that any man of 
 middling circumft inces, will be undone by two or three 
 plunges there. Moft Bookfellers and Printers know this 
 very well, a' d hence fo few of them can be got to publifh 
 a ftrichire upon any adminiftration. 
 
 It is a p.v.c, in my apprehenfion, very alarming; 
 and a thinking man cannot refrain from furprize, that a 
 free people fhcu'd fuftvr fo odious a prerogative to exift. 
 It has been, and may molt certainly be again, the, 
 means of great perfecution. In truth, it feems to be a 
 power necellary for no good purpofe, and capable of be- 
 put to a very bad one. For, although a man may 
 doubt whether a Grand Jim in times of violent p 
 would always find a bill of indictment or preient. 
 th( re- can be none but that a Court of hing> 1> 
 would ;-;rant an information, wherever it could, by any 
 Admin. ftration, be applied tor with the leaft foundation. 
 It i*- dill more wonderful th.i', fmcc this prerogative is 
 < lured, thcie has been no adl palled to fubjecl the At- 
 torney-general, . be did not purfue Ins informa- 
 tion, or upon trial wa c nonfuited, or had a verdict againft 
 him, to tbe payment < (tl to the party abufed. 
 
 When L. H. wai nf ' .: the head of 
 
 the law, the Ait"; iled an information ex officio 
 
 •nit .1 Vicc-Chancelloi of ( .ittcr putting 
 
 him to a i re trial entered a nolle 
 
 Soon ition for the 
 
 ■•, and, when a like t: vvas incurred, 
 
 entered 
 
(9 ) 
 
 entered another nolle prosequi. In fhort, this politico-legal 
 game was had refort to, becaufe there was no evidence to 
 convict, and was dropped and renewed in Order to oppreft, 
 to the extreme charge of the wonhlefs Doctor, and to 
 the infinite difcredit of a moderate king. During the 
 reign of this Law-Lord, thfl fame Star-chamber weapon 
 was frequently brandifhed, like Medufas head, to terrify 
 and benumb individuals. A lecrctand efficacious method 
 of prcferving the peace ! Many an ufeful publication has 
 been nipped in the bud bv an information ex officio (that 
 great fuppreflbr of truth) and by the gripe of its ex- 
 ecutioner, (that enemy to light) the mellenger of the 
 prefs. The miferable object of it has been frequently 
 awed into giving fecurity for his future behaviour, with- 
 out any legal ground either for Mat or for the prolecu- 
 tion ; and in this ignominious ftate of apprehenfion un- 
 certainty and bondage has he been kept for years together, 
 without the information being withdrawn or the Surety 
 given up. 
 
 The oppreffion, however, can go no farther ; for, if 
 the trial proceeds, that fecurity of Englifhmens rights, a 
 Jury, mult be called in. Some late ftatutes, however, (t 
 fhould juft obferve) in particular inftances have given a 
 fummary and final jurifdi£lion to Juftices of the Peace, 
 in matters of Excife, Game, &c. where the proceedings 
 and decifions arc arbitrary, vexatious and partial enough 
 I believe; but this does not reach to fuch a length as to 
 endanger, perhaps, the Conftitution itfelf. 
 
 There is no offence which is oftener profecuted by an 
 information, ex officio, than a libel. Now, many Judges 
 before the Revolution, and perchance fome fince, have 
 faid that, inlaw, a paper may be a libel, whether the char- 
 ges in it be true or falfe, againft a good or a bad man, the 
 living or the dead ; nay, that the "truth of it is even an 
 aggravation of the crime: that every libel is, by conftruc- 
 tion of law, againft the peace, and (in very late times) 
 that it is an actual breach of the peace ; and (at laft) 
 that fecuritics for the good behaviour may be demanded 
 of anv man, charged with being the Author, Printer 
 or Publifhcr. After all, I do not yet learn by what 
 certain figns one can know whether any particular pam- 
 phlet or paper will induce any body to commit a breach of 
 the peace. 
 
 1 think 
 
( io ) 
 1 think one may fay of the Lawyer, who have thus 
 matured the doctrine of informational that they have been 
 
 aitute ill the forging of chains for mankind. No- 
 thingi indeed, can be added but the revival of i pofition, 
 to be met with like-wife in fame few tales before th I Re- 
 \ aion, that ■ Jury is only to try the fact of publication, 
 an. I mull leave the intention of the words to the Court, 
 ior their confirmation ; unlef , indeed, it could be contri- 
 ved to get lid of Juries intire!\\ that i", to eltablilh in 
 n t&l mi th«. Star-Chamber anew. Already, almolt anv 
 thing that a man smites mav, by the help of that uleful 
 and ingenious key t>) conttruction, an inueodo, be ex- 
 plained to scandalize Government, and of couric be a 
 libel ; and Could the lait mentioned impediments be totally 
 removed, inlicad of being only now and then got the bet- 
 ter of by the uextcritv of a Judge, no writing whatever 
 could i ;fcape cor.vic.ti n. 
 
 However, it is only in conform it - / with common par- 
 lance, that 1 fpeak o\ law and fact in a libel as diftinctthingsj 
 to myfelf they appear to he mfeparafelv united. For, a 
 c rimmal profecution and trial can only be had for a crime; 
 now the melt fimplc publication of my thing not libellous 
 (there being no public licenfer) is no crime at all ; it is 
 then th' ' on of what is falfe, fcanda'ous and ledi- 
 
 tious, that i th< crime, and ;olcly cives jurifdiction to the 
 criminal Court ; and That therefore is what muft, of nc- 
 
 •y, be fu omitted to the Jury for their opinion and 
 determination. A decifive argument to the fame purpofe 
 may be drawn from the conduct of the Lawvcrs themfcives 
 in this very matter. For, it is agreed, on all hands, to be 
 nccclTary for the Crown-Pleader to ret forth fpecially fomc 
 of the paper, and to charge it to be a lallc, or 
 malicious libel. Now, this would never be dons by the 
 Law-Pleaders, fubmitted to by the Attorney-General, or 
 endured by the Judges, if it was not cflential to the le- 
 gality of the proceeding. The King's- Bench, in erant- 
 
 the information! only act like a Grand Jury in finding 
 a bill ot indictment, and in erred (ay no more than this, 
 That, fo far as appears to them, the paper charged feems 
 to be a libel, and therefore the peifon accufed mould be 
 put upon his trial before a Jury, whole bufincf^ it will be 
 I ■ ntcr thoroughly into the matter, hear the evidence ex- 
 amined, and what the Council can fay on both fides, and 
 
 form 
 
[ II ] 
 
 from thence form a judgment upon the whole, which, af- 
 ter fuch a difcuffion, it will not be difficult for any men 
 of common undcrftanding to do. Whether the contents 
 of the paper be true, or falfe, or malicious, is a fact to 
 be collected from circumftances, as much as whether a 
 trefpals be wilful or not, or the killing of a man be with 
 malice forethought. " Whether any act was done or 
 44 any word fpoken, in fuch or fuch a manner, or with 
 " fuch or fuch an intent, the Jurors are Judges. The 
 *' Court is not Judge of thefe matters, which are evi- 
 u dence to prove or difprove the thing in iflue." This 
 is our law, both in civil and criminal trials, altho' the 
 latter are by far the mod material, becaufe what affects 
 our perfon, liberty, or life, is of more confequence than 
 what only affects our property. 
 
 Were I therefore a Juror, I fhotild take nothing impli- 
 citly or upon truft, in this refpedt, from any man, but 
 fhould endeavour to form my own judgment of the mat- 
 ter as an impartial Juror, and not as a Statefman : plain 
 truth and fait, and common fenfe, and not political con- 
 venience, far-fetched inference, or ingenious inuendo, 
 being the proper object and intent of my oath by the law 
 of the land. " The verdict itfelf is not an acTt minifterial 
 44 but judicial, and where the Jurors give it according to 
 44 the beft of their judgment, they are not finable. They 
 " can only be punifhed by attaint, that is, by anoth.-r 
 U Jury, where it fhall be found, that wilfully they gay * \ 
 44 verdict falfe and corrupt. Indeed, were this not fo, 
 44 they would be but mere ecchoes to found back the ; . ! . i- 
 44 fure of the court." Whereas, Judges cannot refufe to 
 receive a Jury's verdict. 
 
 The ftrict law, 1 know, is pretended to be, that the 
 truth of the matter afferted is no defence againft: the 
 charge of its being a libel j but that is a point which I 
 fhall never be prevailed upon to receive as law, fron the 
 authority of any man whatever; and much the lei's fo, tor 
 the fafhion now introducing (for the firft time fince the 
 Revolution) of proceeding againft Printers after the Au- 
 thor is known, which breathes a fpirit of perfecution (I 
 may fay of cruelty) hardly to be endured. 
 
 The ltatutes againft Slander and Scandalum Magnatum, 
 (namely the 3d Ed. I. 2d and 12th Ric. II.) direct only 
 that he who " fhall be fo hardy to tell or publifh any falle 
 *' news or talcs, whereby difcord or (lander may grow 
 
 44 betwe-.n 
 
[ I* ] 
 
 " between the Kin.; and his people, or the great men of 
 " the realm, fh.ill be taken and kept in prnon, until he 
 4 ' I... it trim into the Couit which was the frjt An- 
 
 " thr cf tbi tale" 
 
 [fan Attorney-General funis it ncccflary in law to 
 
 paper to be falfe, in order to render his intor- 
 
 (1 it, as a libel, legal ; and that his infbrmtn ■ 
 
 it for bein . true libel, would not only he ridicu- 
 
 , but bad in law, he fhould prove it to be falfe, or I 
 would never upon my oath find it to be fo, let what mca- 
 fure or what magiftrate foevcr be the object of it ; in re.i- 
 lity, it would be abfurd to do other wife. The diftin.-tion 
 between words fpoken and words written is mod curious, 
 lor no criminal profecution lies for words fpoken, and 
 none a;e even actionable in thcmlclve; that do not im- 
 pute a crime; their truth may he pleaded in juftificafion, 
 no inuendo is permitted) a Jury afTeflcs the damages, and 
 no gt eater colts than damages can be recovered. The 
 calling of foul names, uf.ng of abuftve, reproachful or ri- 
 diculing language, or the fpreading of falfe or difparaging 
 ftoiics, (unlels againft a Peer, &c«J u not in itfclf adtion- 
 ablc at all ; and to ground an action for fuch fcandal and 
 defamation, fome fpecial damage mutt be allcdgcd and 
 proved. Othcrways you can only proceed in the C'ourt- 
 Chriftian for an ecclcfiattical ceniurc. But, if the fame 
 words arc committed to paper, the writer is a libeller, 
 may be indicted, or informed againft ; is admitted to 
 plead nothing in his jufdification, and it found guilty, 
 may be fined and corporally punifhed, as the King's 
 Otmih Judges (hall think fit. 
 
 In mith, the Crown, in a libel, mould not ' prove 
 the • i be falfe, but I ike wife Qiew, either from the 
 
 nature of th. paper itfclf or from external proof, that it 
 v . malicious as well as falfe, or 1 would acquit the defen- 
 dant* For, if this were n : i :qui(ite, it might 
 
 y well happen, thai mperate man, who 
 
 v. . eiv iuftly upon th it a bad minMt:\, 
 
 been mifinformed. touching feme particuhn 
 then tl ng or 
 
 DOd his hngir 
 
 falfe, and th 
 
 v 11 hat ing i : or mat ion. In 
 
 , I m iu!d i onfid 
 
 . .nat the author had publi/hed !uch an untruth, 
 
 or 
 
[ '3 1 
 
 or whether common fame fupportcd him in it, and fhould 
 acquit or condemn him accordingly; for, common feme 
 has been rcfolvcd to he a good ground of accufation. 
 
 In fliort, the whole of the information is given in charge 
 to the J ury, and if they find him guilty at all, they mutt 
 find him guilty of the whole, that IS, that by publifhing a 
 paper of fuch a nature he is guilty of a libel ; and if they 
 do find this, it is not in the power of the King's- Bench af- 
 terwards to determine that the fame was no libel. There- 
 fore the charge both of the falfehood and the malice of 
 the paper secured, as well as the fact of publication, fhould 
 be made appear, or the Author and Publifher fhould be ac- 
 quitted. The very ftatutcs againft flandering great men 
 punifh no other than falfe news and tales, horrible and 
 falfe lies. 
 
 Judge Powell, in the trial of the feven Bifhops, {peak- 
 ing of their petition, which was charged as a libel, in the 
 information, faid, " To make it a libel, it muft be falfe 
 " and malicious, and tend to fedition ;" and declared, 
 " As he faw no falfehood or malice in it, that it was no 
 " libel." The other three Judges, it is true, were of a 
 different opinion ; but their opinion has ever fince been 
 held infamous, and his in the utmoft veneration. Sir Ro- 
 bert Sawyer, as Council, farther infifted, in the fame trial, 
 that " the falfity, the malice, and fedition of the writing, 
 " were all facts to be proved." And it is faid, that Lord 
 Chief Juftice Holt always afked, " Can you prove this to 
 «' be true ? If you write fuch things as you are charged 
 «' with, it lies upon you to prove them true, at your 
 ,( peril ;" and a man runs rifk enough in being forced to 
 do this. Mr. Huwles, in his excellent Trcatife upon the 
 duty of Petty Juries, called The Englifkmans Right, 
 fays, •« When the matter in iflue, is of fuch a nature, as 
 *• no action, indictment or information will lie for it 
 ct fingly, but it is worked up by fpecial aggravations into 
 *' matter of damage or crime, as, that it was done to 
 " fcandalize the government, raife fedition, affront autho- 
 " rity, or the like, or with fuch or fuch an evil intent: 
 " if thefe aggravations, or fome overt act to manifeft fuch 
 •« ill defign be not made out in evidence, then ought the 
 " Jury to find the party Not Guilty. And if a Jury mall 
 " refufe to find that fuch an act was done falfly, fcaittia- 
 " loufly, malicioujly, with an intent to raife jedition, dc- 
 «* fame the government, or the like, their mouths arc not 
 C "to 
 
r 14 1 
 
 ct to be B I, or their consciences fatisfied, with the 
 
 ■* ( I .. mthing to dj with 
 
 *' rl'l only r.'ur.tcr of fzrm cr mutter of law, you are only 
 *' to i f he fpokt fuch words, writ 
 
 " or i , or toe like: for, if they fllould igno- 
 
 " rant)) take this tor an anfwer, an 1 bring in the prifoncr 
 " Guilty, tho' they mean of the naked fad only, yet 
 "• the Cleric recording it dcmaiuis a further confirmation 
 M thus, I ben you fay D. is guilty of the trefpafs or mifde- 
 M meaner in manner and form as be Jlands indifted, and ft 
 <\iy all? And the verdict is drawn up, The jurors 
 *' elo jiy, upon their oaths, that D. malicioujly, in contempt 
 u of the King and the government, ivitb an intent tJ fcan- 
 " dalize the Admlnijhation ofjujlice, and to bring the fame 
 " into contempt, or to raife fedltion, Sic. (as the words 
 " were laid J fpake fuch words, publijhed fuch a book, or did 
 *' fuch an aft, againjl the Peace of our Lord the King y his 
 Cw tr&wn and dignity.'' 
 
 Befides, there is a constitutional rcafon of infinite mo- 
 ment to a free people, Why a Jury (hould of themfelvea 
 ftlwaya determine whether any thing be or be not a libel. 
 It is this, that ninety-nine times out of an hundred, thefe 
 informations for public libels arc a difpute between the 
 minifters and the people. Our Progenitors knew this 
 very well, and therefore having acquiefced in the power 
 exercifed by the Attorney-General* of infbrmij 
 what he pleafes as a libel, were refolvcd n I with 
 
 the prerogative of j upon the matter them- 
 
 lilves ; and, in my poor opinion, had tlv >, wc 
 
 fhould, long before thi.% not only have loft the liberty 
 of the prcls, but every other liberty befidi . No m.ui 
 that disapproved tin at, would venture 
 
 to difcuis the propriety or confequence of them. No 
 man would venture to utter a l\ liable in print againfr. any 
 
 power of office, and much left againft any royal pre- 
 
 ive, bowei illy ufurped. He would oe fure 
 
 to be charged with a libel by the Attorney-( rem ral, and 
 
 10 br fined, and p: rh.ips impnfoncd without mcu v, by 
 
 the A'/'.-'t Vx-ruh, as, in fact, happened to Sii Samuel 
 .i .liiton, whole judgment was reverfed by F 
 
 after the Revolution. 
 
 1 I, ib. In. 1 es held their plat i 
 
 th-. K.mg'^ pleafure, ajM ; v'y* ^ ' : " l, ' lt ' 1 
 
 was 
 
( 15 ) 
 was then their only reftraint j that waa fotne guard, 
 not a fufEcient one, when the confequenceoi i ■■ 
 pliance with Adminiftration would deprivi a J his 
 
 Ijvelih 'I, and raife the indignation and i 
 Crown. Judge) arc now tor life, and a n >ble 
 it is ; and yet, un'ef. one could u: the 
 
 common tailings of manlcind, from ambition, • t 
 
 the defire ot providing lor their families, one m 
 conceive that fome influence may ltiil take place even in 
 a Judge. 
 
 But it is become more nccefTiry than ever, that tri- 
 ple fhouid retain the privilege of determining the law and 
 the fact, relative to libels, becauie their representatives 
 have lately, by a resolution, declared, that privilege of 
 parliament does not extend to the cafe of a libel. I had b n 
 always in an error upon this head before, which I was led 
 into by old cafes. My notion was not taken up in conl - 
 quencc of the conftruclion made by the prefent Court of 
 Common Pleas, nor did 1, indeed, entirely build upon my 
 own fenfe of the matter ; but I was fixed in the opinion 
 by the authority of that great lawyer Lord Chancellor 
 Egerton, who, after having held the great feal for fourteen 
 years, with greater reputation than any man before him, 
 in a folemn argument which he delivered in the cafe of 
 the Pofl-Nati, and which he afterwards pi.blifhed himfelf, 
 upon a firict. review, and with great deliberation, (fo that 
 it is uncontrovcrtibly his opinion) has laid down the fame 
 dodlrine, and cites particularly the old determination made 
 by the Judges in the cafe of Thorpe. His Lordihip there 
 i'ays, " Then let us fee what the wifdom of parliaments 
 •* in times pair, attributed to the Judges opinions declar- 
 " ed in parliament, of which there may be many ex.: - 
 '* pies. In the parliament anno 31 H. 6, in the vacation 
 " (the parliament being continued by prorogation) Th 
 " Thorpe y the Speaker, was condemned in a thoufand 
 •' pounds damages, in an action of trefpafs brought againfl: 
 " him by the Duke of York, an 1 was committed to prifon 
 " in execution for the fame. After, when the parliament 
 " was rc-allembleJ, the Commons made (bit to the King 
 " and the Lords, to have Thorpe, the Speaker delivered, 
 '* for the good exploit of the parliament ; whereupon the 
 * c Duke ot York's counfel declared the whole cafe at 
 •* large. The Lords demanded the opinion of the Judges, 
 
 C 2 •« whether, 
 
' i6 ) 
 
 11 whether, in that caf", ought to be deRi 
 
 44 out of priibn by \ 
 
 M made tbi , That t • mine 
 
 M the privilege ol that High Couri Pari ment; but, 
 
 lh ■ declaj i per Court 
 
 4k cafes where writ ol fuj • the privilege o( the 
 
 41 parliament be brought unto them, they anfwered, 
 M lh perlon t: P irli m 
 
 " arrcftcd, in fucb * 
 
 . 01 condemnation h re the 
 
 " pai fucl« pcrfi ns be rcl 
 
 *' mai vitorncv, (b as tbey may bare their freedom 
 
 44 and liberty nee' I ih«. parliament.* 1 
 
 The L iras, in the fcllowr . mofl folcmnly ra- 
 
 dudrine in the famous cafe of the 1 
 . by a resolution m • ./<• ; and then 
 
 prcicnted to the King, the following remon ft ranee, "■ May 
 41 it plcafcyour Majefty, we the Peers of this your 
 
 •v nlVembled in pa :, findii irl <>f 
 
 *' Arundel abfent from his p)ace s that foifietimes in this 
 
 44 parliament fat amongft us, his prefence was therefore 
 
 * 4 called for; but, hereupon a meffage was delivered unto. 
 
 ** us from your Majefty by the Lord Keeper, that the 1 .:;1 
 
 44 of Arundel was retrained fur a mlfdemeanor, which was 
 
 " pcrfonal to your Majefty, and had no relation to matter 
 
 *' of parliament: this meflage occafioned us to enquire 
 
 44 into the acts of our anceftors, and what in lib 
 
 44 they h.ui d fo we might not eir in ar 
 
 * l ful refjp :r Majefty, and yet pi rve on hi 
 
 44 and pi i. parliament : a diligent fcarch 
 
 •* both of all ftories, ftatutes and record- that might in- 
 
 n us in this cafe, we find it to be an undoubted 
 
 ht and conftant privilege, That no Lord ol Parlia- 
 
 •' roent, fittii parliament, oi within the ulual 
 
 *' times ( be rmprifoned 
 
 *• oi reftrain d (without fentence or order of the houfe) 
 
 M unleft it be I i to give 
 
 *' fuur'tt) 
 
 " wi ild he s Hedged by your Ma- 
 
 learned Council at Law, that might any way in- 
 
 I to all th.at 
 
 . .i and alledged, < < full fatisfa&ion has 
 
( '7 ) 
 
 " been given us that all the Peers in parliament, upon the 
 M qucilion made of this privilege, have una twtconfentrd 
 »' that thi; is the undoubted right of the Peers, and inviol- 
 " ably has been enjoyed by them." 
 
 Now what my reafoning from fuch premifes muff, be, 
 may be eafily guefTcd. It was thus : Members are clearly 
 intitlcd to Privilege in all mifdemeanors, for which furcties 
 of the peace cannot be demanded. But, furcties of the 
 peace cannot be demanded but in actual breaches of the 
 peace. The writing of any thing quietly in one's ftudy, 
 and publifhing it by the prefs, can certainly be no a&ual 
 breach of the peace. Therefore, a Member who is only 
 charged with this, cannot thereby forfeit his Privilege. 
 
 I thought that no common man would allow any writ- 
 ing or pablifhing, efpecially where extremely clandeftine, 
 to be any breach of the peace at all ; and that none but 
 lawyers, on account of the evil tendency fometimes of 
 luch writings, had firft got them, by conJhu£iion> to be 
 deemed fo. I had no idea that it was poffible for any 
 lawyer, however fubtle and metaphyfical, to proceed fo 
 far as to decide mere authorfhip, and publication by the 
 prefs, to be an actual breach of the peace, as this laft 
 feemed to exprefs, ex vi termini, fome pofitive bodily in- 
 jury, or fome immediate dread thereof at leaft j and that, 
 whatever a challenge, in writing, to any particular might 
 be, a general libel upon public mcafures, could never be 
 conftrucd to be fo. And 1 knew it was not required of 
 any one in matters of law, to come up to the faith of an 
 orthodox divine, who, in incredible points, is ready to fay, 
 Credo quia i?npoJJibile eji. 
 
 Indeed) 1 had originally conceived, upon a much larger 
 fcale of reafoning, that freedom from arreft for a libel was a 
 privilege incident and neceffary to the Houfe of Commons, 
 becaufe it was a fafe-guard againft the power of the Crown, 
 in a matter that was almoft always a difpute between the 
 Dlfnifrer and the fubjeft, and no more than a natural fe- 
 curitv of perfon for an independent part of the legiflature, 
 againft the arbitrary proceedings of a King's officer, in the 
 leaft ascertained of all imputable offences. Uut this point 
 has been lately cleared up to the contrary in Stt Stephen's 
 chapel, upon a debate of two fucceffive days, the laft of 
 which continued from three in the afternoon till two in 
 
 the 
 
C * ) 
 
 the morning *. And, I lament my not hairing a very 
 I and elaboi h of a certain candid 
 
 product oi family Icarnin riotifm ; 
 
 nor the finer wove oration oi .1 jrcat juiticiaryj which 
 I n highly celebrated, <• at different 
 
 ti nd places, in order to < 
 
 chim inaine, and to convince the io>| ;tof 
 
 mankind , that a lib*. 1 h of the 
 
 ftioguiflj un- 
 
 Neveri thi Com- 
 
 nii -ind at large, having come to no new compact 
 
 till potkts their old right 
 I aw in a libel. 
 
 I cannot r\-y.;i adding loo, with regard to pledges for 
 good behaviour, that in mv ipprehenfion, they are not 
 mdablc bylaw in thecafc oi a libel, before convi&iioaj 
 f i this mifdemeaaor is only a bicach of the peace by 
 political conduction, nothing being an actual breach of 
 the peace, but an aflault or battery, the doing or attempt- 
 ing to do lome bodily hurt. Now, fureiv for the peace 
 1 guard from perfonal injury ; and articles 
 
 of the peace can only be demanded from a man, who 
 by fomc pofitive act has already broke the peace, and 
 therefore is likely to do fb again ; or where any one will 
 make pofitive oath, that ho apprehends bodily hurt, or 
 that he goes in danger of his life. The articles which 
 are . 1 in the court of K;:: :' l!-'iich, are 
 
 always for the prevention of corporal damages. No 
 cafe is (b common «i s that of women exhibiting articles 
 of the peace againft their hufbandlj DOW, I di> not bc- 
 lieve, tl l to allege, u a foundation for 
 
 articles, libel againft 
 
 let the libel be ever to lalle, fcaodalous an ! in. 1 ici- 
 , that Lord M :..; Id would n.. ■ th hufband find 
 . .r for hii future goo 1 behaviour on 
 that account. Now, in the cafe of a public ere 
 
 i, i tvhocancoi e court ol K rich 
 
 exhibit articles of the p infl the writer or p.ib- 
 
 l.lher, i.. iat he believe . l.unu!. to b. in dan 
 
 t 176;, and 
 
( '9 ) 
 of bodily hurt from him, or that he walks in fear of his 
 life. 
 
 Another rcafon which ftrongly weighs with me is, 
 that the writers upon bail, or the delivery of a man's 
 perfon from prifon i never mentions fureties for the be- 
 haviour, in :my cafe of a libel or conftru£Hve breach of 
 the peace ; and yet it would have been material for them. 
 fo to have done, if fuch fecuritv muft be given before a 
 man could obtain his liberty. My Lord Coke lias wrote 
 an cxprefs treatife upon bail and mainprife, and confidcred 
 the writs de homlne rcplcgiarulo, dc odio iff atia, and 
 Habeas Corpus, and yet it is plain he had no imagination 
 of the thing. He fays, " Bail and mainprife is, when a 
 44 man detained in prifon for any offence for which he 
 *' is bailable or mainprizable by law, is by a complete 
 ** Judge or Judges of that offence, upon fufiicient furc- 
 44 ties, bound fur his appcan.ee and yielding of his body, 
 " delivered out of prifon. As for example, if a man be 
 " indicted of any felonies, publishing of any feditious- 
 44 book.', &c. contrary to the form of an act made in the 
 44 23d year of Queen Elizabeth, he may be bailed, for 
 44 the offence is made felony, and bail and mainprife not 
 44 prohibited." 
 
 Infides ; for words fcanda'ous in thcmfelvesor attended 
 with confequential damages, or f r a libel, the party tra- 
 duced can only bring an action of trefpafs on the cafe, 
 which adlion, however, lies merely for a wrong done 
 without force, but againft the peace, that is, for a con- 
 Jlruftive breach of the peace. For, if it were an aclual 
 breach of the peace, an a&ion of trefpafs with force and 
 arms would lie, as it does for an affault and battery and 
 falfe imprifonment ; but, I believe no lawyer ever heard of 
 fuch an action being brought cither for words, or for a 
 libel, or would fay that in cither cafe it would lie. This 
 therefore is a proof that the Law does not regard a mere 
 libel as an aclual breach of the peace. 
 
 The notion of purfuing a libeller in a criminal way at 
 all, is alien from the nature of a free conftitution. Our 
 ancient common law knew of none but a civil remedy, 
 by fpecial action on the cafe for damage incurred, to be 
 affefled by a jury of his fellows. There was no fuch 
 thing as a public libel known to the law. It was in order 
 to gratify fome of the great men, in the weak reign of 
 
 Richard 
 
( 20 ) 
 Rn.h.ird the 2.1, that fomc a&s of parliament were paffod 
 to give adions for fill ft talcs, news, aiul Dander of peers 
 or certain ^rt .it officers of ftate, which are now termed 
 
 "Mtum. Before that time, or at molt the 
 3 Edward I. no mere words were actionable : There mufr. 
 be fomc (pecial damages to found in a&ion, which mufr. 
 be laid and proved. The doclrinc m courts of common 
 law flill contini c I to he, thai M no writing whatever is 
 44 to be eftcaned a libel, unit on fome paiti- 
 
 ** cular perfon." And they will not fuftain aclioni at all 
 for obfeene difcouries, by word of mouth or writing, or 
 for ribaldry. They leave fuch fpiritual concerns to the 
 ccclcfiaftica! cenfures of Courts- Chriflian. 
 
 whole dodrinc of libels, and the criminal mode 
 of profeCuting them by information, grew with that ac- 
 curfed court the (tar-chamber. All the lea::. ing intruded 
 upon us fit- libelUs famojh was borrowed at oner, or rather 
 tranflateJ, from that Qavifll imperial law, ulua'ly deno- 
 minated the civil law. You find nothing ot it in our 
 books higher than the time of CK Elizabeth and Sir Edward 
 Coke. 
 
 Out if any writing fhould be a libel, and be profecuted 
 only as fuch, it is in vain afterwards to call it " abominable 
 or treafonable," with any idea that fuch epithets will war- 
 rant an extraordinary proceeding in the prr fecutor. I his 
 end indeed it may aufwer, and a very diabolical one it is ; 
 it may ferve to found a pretence for demanding exceffive 
 bail, which if the fippofed libeller cannot find he mud 
 lie in prifon : however, as there have feveral a&s of parlia- 
 ment pafled from time to time forbidding exceflivi 
 particularly the Habeas Corpus z€t, and as the Houle of 
 Commons have even fince in the e.ife of Lord Chief 
 Jufticc Scroggs, exprclTcd their deteftation of fuch op- 
 prcfiion, a Judge is not now fo likely to put this mode 
 of tyranny in ufe. Hut if the do&rineof fecurity for the 
 peace can be cftablifhcd, I do not fee what fhould ' nder a 
 tfme-Jerring magiftrate, from infilling upon enor- 
 
 mous a pledge to nomine: The Judge might (ay, J h:u e taken 
 moderate bail ; but, I found he wai a .nan much 
 
 ilif-inclincd to his M.ijefly' . meafuri n, and 
 
 had r< afon to tliink he would flill write againfl tl m, whicl) 
 
 I n it fail of railing a dangerous fedition, anil t!.. 
 I thought the bed way was to take fuch a pledge for his 
 
 good 
 
( 21 ) 
 good behaviour for fevcn ycar<=, as would deter him from 
 writing any thin;!; that could pomblj ' i I a libel; f"r 
 
 If he did, he would forfeit his caution money, and That 
 woulJ be fo great a loft, it would abfolutely ruin him* 
 I did for the beft ; and, I do not know thai I 
 fratutc which pn ny meafure for fecurity of the 
 
 peace. Now, fuppofmg a chief Juftice ■ "Ui- 
 
 plained of for fuch an oppreffibn, as a grofs fraud on the 
 fpirit and intention of the Habeas Corpus ad, and the 
 Houfe of Commons wore to inquire i«to the matter; if 
 the adminifrration which he fcrved was then prevalent, it 
 might perhaps be very difficult to obtain any cenfure of 
 the pra&ice: but, if that could be done, it is highly im- 
 probable they would go any farther j and, at the worft, 
 his Lordfhip would get off without any fine upon himfelf, 
 as well as Chief Jultice Scrooggs did. To fay the truth, 
 and to fpeak out upon fo material a fubjedl, I cannot help 
 imagining that this word trcafonable or traitorous, is fre- 
 quently thrown into the charge againft a fuppofed libeller 
 by an Attorney General, for the purpofc of affording 
 colour for the demand of high bail, and, if pofliblc, 
 enormous fecurity for the good behaviour. 
 
 Had this practice of furety for the peace upon the charge 
 of a libel prevailed in Charles the lid's time, it is incon- 
 ceivable that the legiflature fhould not have mentioned it 
 by name in the Habeas Corpus ad. The patriots who 
 procured that fhMtc, evidently meant to have a delivery 
 of the body in all cafes not capital by bail, and muft cer- 
 tainly think by the words fpeedy relief of all per Jons impri- 
 j'oned for criminal or fuppofed criminal matters, that they 
 had provided for all cafes of mifdemeanor. Nay, after 
 this, if Surety for the Peace or Behaviour had been taken 
 in Libel, can it be conceived that it would not have 
 been complained of and redreffed in the Bill of Rights, 
 as being, equally with exceffive bail, a mean to dude 
 benefit of the laws made for the liberty of the Subjccls, utterly 
 and direclly contrary to the freedom of this realm, and which 
 ought not to be required ? 
 
 It is no excufe for this novel attempt to f.w, that 
 Judges take the fame furetics for appearance and for the 
 p ace, and make the one the meafure of the other ; be- 
 caufe they are certainly not obliged fo to do, and might 
 
 D perhap3 
 
) 
 
 i cafton fee reafon b i 
 , .1 man might forfeit his pledges lor the bebav our. by 
 - fubfequeni imprudence, altho' he might be acquit! 
 
 of the charge which hid occafioned them, and this could 
 never be the intention "i .my legislature. 
 
 In fpeakins ol fureti s, 1 have not entered into the dif- 
 ference between thofe foi th r the good 
 our; but the laM r are certainl) by much the- molt to be 
 F< r M furety ol the p ace cannot be broken 
 M without fome act, a? an affray or battery, or the like. 
 " Whereas (according to my bird Coke} furety de ■ 
 
 fa, or good i confine chiefly in that a man 
 
 "demean himfelf wtll in his port and company, doing 
 " nothing that may he cat breach of tb 
 
 c< or of putting the people. in fou 01 trouble." In lhorr, 
 it affords mote room lor a latitude of construction, or 
 fur a Judge's difcretion, which is very apt to operate 
 againft the fubjedl, and lhould therefore be ftudioufly 
 avoided. 
 
 The truth i°, at common law, furety for the 
 haviour could be i d in no cafe before i n by 
 
 a jury. Binding to the good behaviour on- 
 
 v judgment, given by a court of record, fbi an i I 
 at the fuit of the King, a;t-.r a verdict; trial by his peers 
 being an Eng birth-right in ..11 charges, not to 
 
 be t ken away but by a*:t i I i i.t. 
 
 " Originally, wardens or confervatoi were 
 
 " wont to b in t le full county I 
 
 «' they had oi tion or prehenfion in a few c 
 
 «' jio jui de. 
 
 " But, when young Edward the 3d, :.s ( f 
 
 < l bis mother ai.d Sir Roger Mortimer, 
 « i poffeffion of his father's crown, He inftii i 
 *« com:. , or jufiices of the peace, as fo many 
 
 <.<■ fpecii the con 
 
 41 whereby t. n ol confervatois oi the p 
 
 *• taken from the people, and translated to i ment 
 
 m oi the King. Tl B were not ordained how- 
 
 n ever, to reduce the people to an univerfal unanimity, but 
 " to fupptefo injuriou lintl the per- 
 
 il fon, htS goods or In this matter of the 
 
 * i peace (continues iMr. Lambard) the lav,- of C.iod rc- 
 
( 2 3 ) 
 <l fpc&s the mind and conscience, the laws of men do 
 •* look but to the body, hands and weapons: and there- 
 *' fore, furious gefture and beaftly f. rceofbody (and I ' 
 " (.very contention, luit and dilagreimcnt of minds) is 
 " the proper fubjecl about which the office of the jufticcs 
 " ot the peace is to be exerciied." 
 
 Before the 2d of Edward 3, jufticcs could only r. 
 to the parliament; bur, by that ftatute, th<y had p wer 
 to punifh difobcyers, and refifters, And the 34th of ;he 
 fame king cnails, " that in every county fhall he : l- 
 " figncd for the keeping of the peace one Lord, and with 
 M him three or four of the moit worthy in the countv, 
 M with fome learned in the law, and they fhall have power 
 " to rcjhain misfeafors> rioters, and all otrur barrators, 
 " and to purfue, arreft, take, and chaflife them, accord- 
 " ing to their trefpafs and offence j and to caufe them 
 *' to be imprifoned and duly punifhed, according to the 
 " law and cuftoms of the realm ; and alfo to infoim of 
 •« them; and to inquire of all thofe that have been pil- 
 " lors and robbers in the parts bevond the fea, and be 
 '■ now come again, and go wandring, and will not 
 «' labor as they were wont ; and to take and arreft all 
 M thofe that they may find by indictment, or by fufpicion, 
 " and to put them in prifon ; and to take of all them 
 •« thai be not of good fame, where they fhall be found, 
 <l fujficicit Jurety and mainprize of their good behaviour 
 *' towards tne King and his people, and the other duly 
 " to punifh, to the intent that the people be not by fuch 
 " rioters or rebels, troubled nor endamaged, nor the peace 
 " blemifhed, nor merchants nor others pajjtng by the high- 
 *' ways difturbed, nor put in the peril which may hap- 
 " pen of fuch offenders." Now, it is plain, this itatute 
 regards nothing but actual offenders, rioters, barrators-, 
 rebels and highwaymen : and furety for the behaviour 
 cannot be taken thereby, but of thofe who are on iirong 
 ground fufpeclcd of fome fuch actual breach of the pc 
 This law, neverthelefs, is the origin and the fole foundation 
 for the prefent demand of furcties for the good behaviour 
 before conviction; and what is not warranted by the 
 .provifions of this a£t, is illegal and unwarrantable, the 
 common law permitting no fuch thing, and the lame be- 
 ing in ltfelt derogatory of the rights of a freeman. 
 
 12 2 Indeed. 
 
( 2 4 ) 
 
 Indeed, fome particular ftatutes in fubfcqucnt reigns, 
 
 1 Abearin r I i cafes 
 
 the, But, thefe fpecial ft* wt out of 
 
 iit queftion, and I need not be touched 
 
 re. 
 
 To retut . I the '34th Ed. 3. It appears (I think) 
 
 from the penning of th.it llaiutc, as 
 
 ptation of it among our .mceilors, 
 
 and the conduction of antient lawyers, that fee: 
 
 or cannot be required^ bet where a man u 1 
 to app;ehend ionic bodily hurt to be done tohim- 
 And in fach cafe, the pcacc-magilirate muft con- 
 ( the p.rfon charged, inquire and find him not to be 
 pf good fame where taken. He mult examine into the 
 truth of the matter alleJged, try and adjudge it u; on la- 
 t rory teftimony or evidence of the thing, unlcis he 
 raw it with his own eyes, before he can legally den 
 any fumy for gooj abearing, or know what to take : for, 
 I judicially. In fhorr, mainprize for the behaviour, 
 
 (whether by bond to or caution) muft 
 
 be by a regular proceeding of record. In fadb, none but 
 a judge of reccru (which a juftice of peace : s) cm take a 
 recognizance, bo aufe the acknowledgement of the lum is 
 to remain as a matter of record. Every recognizance for 
 the puce is exprcfly directed by the 3d Henry 7, to be 
 certVd to tin next feffions. And, before the reign of 
 James I. ir was not imagined that fecuritv for the be- 
 havi onejuflic-, be books 
 
 in hi-> time red Oimend two. Nay, bindi: be- 
 
 ha : . • he done in open feffi ns ; and 
 
 the beft ( inions now arc, that a ;ulti:c acts illegally, if 
 he bi r-> i is bebavi >cir foi er time 
 
 than ui • ions ol thr peace. My Lord Hale 
 
 , " This t ir. . ■ iiJ with- 
 
 " out anjr time limirted; is not b i.p.-tual, 
 
 "but iii nai bail, via. Ri uch a day at 
 
 be«of good bcha- 
 - 
 
 . -heChancervoiKing's Bench, 
 
 a i rety rbi the » 1 d 
 
 - . any pan: d then in otndi- 
 
 >, roi he ' mi- 
 
 lteiially, 
 
[ 25] 
 
 ftcrially. Fitzberbcrt however fays, that after the i Edw. III. 
 t.hefc writs begun thus, Supplicavit nobii A quod cum ipfc dc VII I I I 
 inutilatione membrorum luorum per E. gravittr el manifefte com- 
 minatua txt/iat, life, and then went on, Tiki pracipimus quod ipfum 
 F. ad Jujfictcnttm Jccut iliitcm inveniendam quod ipj<? damnum vcl ma- 
 lum aliqttod eidem A. tie corpore (uo non facial ncc fieri procurakit y 
 quovis mjdo iompdlas : et ji hoc reevfaverit, bunc ipfum E. proximo: 
 gaola nojiiit committal, in eadem Jalvo at/loan i quoufqui hoc gratis 
 facere voluerit. * And the fupreme courts, arc commanded by 
 •* the 2 1 ft James I, to grant no procefs of the peace for good bc- 
 " haviour, but upon motion in open court, and declaration in 
 " writing and upon oath, to be exhibited by the party defining 
 41 fuch procefs, of the caufes for which fuch procefs fhall be 
 *' granted; the motion and declaration to be mentioned on the 
 M back of the writ; and if it fhall afterwards appear that the 
 *' caufes are untrue, the court may order cofis to the party «rieved y 
 " and commit the offender till paid." This act is profe'Fedly 
 by its preamble made to prevent furety for the behaviour beino- 
 unjuftly " procured upon oaths peremptorily and corruptly ta- 
 " ken, and upon falfe fuggeftions and furmifes," which fhews 
 that it is only to be awarded after a foiemn examination into 
 the truth of the caufe fuggefted, upon ftrong and fatisfaclory 
 evidence in open court, in the face of mankind. 
 
 What then muft one think of any court of juftice that fhall, 
 upon the caption of a man as a libeller, refufe to let him to bail 
 before he has entered likewife into recognizance for his beha- 
 viour, and even that without limit of time? An Attorney-Ge- 
 neral, at the inftigation of a peevifh and fufpicious minifter, 
 may charge any paper as a libel, and any man as the author or 
 publisher, ex officio^ without oath, or the fhadow of legal proof! 
 The information may be filed, procefs taken out and executed, 
 and the fuppofed libeller obliged to become bound in a heavy 
 fum for his good behaviour; and yet the information may never 
 be tried, or withdrawn, nor the recognizance releafed ! Nay, 
 if the fame perfon mould afterwards be guilty of any petty con- 
 structive mifdemeanor or breach of the peace, it might be pre- 
 tended that he had forfeited his former heavy recognizance; (o 
 that he would be punifhed, not in proportion to his real tranf- 
 greflion, but to one that was only fuppofed: and This in a 
 country where the Jaw prefumes every man to be innocent un- 
 til he be found guilty ! In plain words, it is a libel on the con- 
 stitution to hold fuch doctrine, and in a judge, a breach of his 
 trult (which is treafon at Common Law) to fupport it. It would 
 render every Englifh fubject, by poffibility, a mod miferable 
 fettered Have. Air. Selden knew well the contrary, and there- 
 fore 
 * Natura Brevium, p. 184. 
 
r t6 ] 
 
 fore fuftrrrd himfetfto be re-imprifoned rather than fubmit fo f-i 
 
 Fa a demand of t! i, and in hia own perfon to afford 
 
 a precedent for 1 l be attempted a 'linfr 
 
 He wa»a great I a true 
 
 nl live of th t, in oppofuion to the 
 
 inical procedure l >urt and its fubfervicnr 
 
 judges, that would ha\ mi/it •,.'../ regis, it' 
 
 could. 
 
 J laving feen wh.it the words of the (latute, creating this pow- 
 er are; let ua now look at the comra CC framed 
 in confequence of it : premising that r. > ufage, royal procla- 
 mation, or expofition of a judge, will make law in this cafe, 
 that is not warranted by the exprefs w < rda of the fratute, and 
 that the fame being a penal ftatute it muft be conftrued ftri£tly. 
 
 The claulc in the old commiffion of jufticcs of the peace, 
 authorizing them to take furety of the peace or good behaviour, 
 confines the fame to actual breaches of the peace, that is, 
 threats of bodily injury, or the burning of their habitations, 
 and is in thefe words, " ad omnes illos qui alicui de populo 
 tc noflro de corporibus fuis, vel de incendio ihnurum fuarum minas 
 44 fecerint, ad fufficicntem fecuritatem de pace vel de bonogeftu, 
 44 erga nos 6c populum noltrum invenic: Jam, &c." And the 
 words fettled in James the id's time and now purfued, are, 
 " To keep, and caufc to be kept, all ordinances and ftatutes 
 44 for the good of the peace, &c. and to chaiHle and punifh all 
 44 perfons that offend, according to the form of thole fratutcs 
 " and ordinances j and to caufe to come before you all thole, 
 44 who to any of our people concerning their bodies, or the 
 * 4 fring cf their houses, have njcd threats, to find fufficicnt fecu- 
 ** rity, for the peace or their good behaviour towards us 
 44 and our people; and, it they fhall refufe to hod luch fecu- 
 •• rity, then them in our prifona until they fhall find fuch fe- 
 44 curity to caufe to be fafely kept. We have alio iffigned vou 
 <k to inquire the truth more fully by the oath of good and lawful 
 ** men, Sec. of all thole who in compani againfl our peace, 
 41 in diliurbance of our people, have gone or rode, or hereafter 
 " fhall prcfume to go or iidc; and alio of all thole who have 
 *' there lain in wait, or hereafter (lull prefume to lie in wait, 
 u to maim, or cut or kill our people." 
 
 Nov/, this commifHon i:; grounded evidently on the ftatute 
 id, derives its force from it, and needs no com- 
 ment to apply thereto the feveral parts of \ r . It confirms abun- 
 dantly thedo&rine I have advanced. Indeed, the legality i 
 quirin fioui for Arfon, feem very queftion- 
 
 a,ble, as not comprifed within the aci. However, nobody will 
 object bo tig a fecurity again it being burnt in one's bed, 
 
 by 
 
[ 2 7 ] 
 by any man who (hall threaten, or, by lurking about the houfe 
 at night, fhall indicate an intention of lb doing. Fitzbtrbert, 
 the Judge, in his Natura Brrvium (which ii of fuch eftablifli I 
 
 authority in all the conns of law, from the reputation of the 
 learned author, and the annotations of Lord Chief" [uftice Unit) 
 in treating of the writ de fcuritate pads, fays, " I his writ Ii l 
 M when a man is in fear or doubt that another will beat or af- 
 " fault him; and lies properly where one man does threaten an- 
 " other to kill him, beat him, or afl.uilt him; then may he 
 " pray to have fuch a writ — .Quia conque/tus ell quod cei tie cor- 
 " pore fuo manifefte minatur : and the King's writ runs praci- 
 " pimus tibiy quod eidem A. de prccfato C. fir mam pacem nnjlram, 
 M fecundum confuetudincs Angliae, habere facias, ita quod fe cur us 
 lt fis quod eidem A. de corporc fuo per prafatum C. vel per procu- 
 C( rationem fuam damnum vel periculum non eveniat. And by the 
 " antient courfe of law he ought to take his oath upon a book, 
 " before he have this writ. But now (adds this reverend writer 
 ¥ of the reign of Harry the 8th) they ufc to fue forth fuch writs 
 " without any oath made ; and the fame is ill done, becaufe they 
 " are oftentimes fued out more for vexation than for any good 
 " caufe ; and the jujiices of the King's Bench will not grant any 
 " writ for furety of peace, without making oath that he is in far of 
 M corporal damage. And the juftices of the peace ought not to 
 " grant any warrant at the fuit of any one to find fureties of the 
 " peace, if the party who does require the fame will not take 
 " his oath that he requires the fame not far malice, but for the 
 "fafety of his body." 
 
 It is moft certain, alio, that furety for the peace or the be- 
 haviour could be demanded in no cafe whatever, at common 
 law, before conviction, that it fprings wholly from ftatute law 
 within time of memory, and that the ftatute authorizes it oaly 
 in cafes of real perfonal danger ; wherefore it may very well be 
 doubted upon what legal bottom it can be extended farther. In 
 the reign of Edward the 4th, it was determined, that it ought 
 not to be granted to a man who fhall demand it, becaufe he is in 
 fear that another will take and imprifon him ; by reafon that 
 he may have a writ de homine replegiando, or an action of falfe 
 imprifonment, whereby he may be repaired in damages. This 
 may be too ft rift a conftru&ion. But it is a proof that our an- 
 cestors thought the ftatute ought to be ftri&ly conftrucd, and 
 that furety or" the behaviour was only to be had as a protection 
 from bodily maiming or deftruclion indicated and proved by threats 
 of immediate injury, by the wear of dangerous and forbidden 
 arms, or by wandering and lurking about highways, and other 
 fufpicious places, in a fufpeiSted manner. It has been rcfolved, 
 that this fecurity cannot be demanded for fear of harm to fer- 
 
 vants. 
 
[ 2S J 
 
 tints, cattle, or goods; altho' a fcrvant may demand it for 
 himfclf in his own perfon like any other man ; aiul it is n< \ ei 
 awarded by any magiftrate but upon crediblo oath) of up- 
 on hia own view, ol i fumcient caufe. My [x>rd Coke fays 
 eflyj that 4l Qanderoua words are not a breach of the be- 
 
 " haviour, for tho' fuch WOrdl are motives and mediate provo- 
 "■ cations for breach of the peace, yet tend they not tmme- 
 
 , like a challenge, &c." Ma- 
 ny ftrange difcretionary deviations, however, from the words of 
 the ftatutc, have been made and upheld with forced conltruc- 
 tions bv judges, in the flux oi time] until, in the latter end of 
 James the ift's reign, it came to be aflerted by Mr. Dalton, in 
 his book, that furety for the behaviour could be demanded or 
 libellers, I prefume, however, he muft mean for fuch a libel 
 on fomc particular perfon as dire&ly and immediately tends to 
 provoke him to fight ; for, I believe, it has been rcferved to 
 our day, and to the complement of crown law by Serjeant 
 Hawkins, to have it maintained either in print or at the bar, 
 that fuch furety can be required for any public libel, or for a 
 libel on any puticular perlon not directly tending to an imme- 
 diate breach ol the peace. Be this a3 it may, the pofition is 
 not warranted by any ac~t of parliament, and is therefore ab- 
 folutely illegal. 
 
 It has been rcfolved, " That fedition cannot be committed by 
 M words, but by public and violent adtion." And my Lord 
 Coke himfclf (the introduclcr, fofrcrer, maturer and reporter of 
 the prefent ftar-chambcr dotStrine about libels) relates, " that in 
 " the 30th of Q^ Elizabeth, one King with iureties was bound 
 c< by recognizance to appear at the next fcilions, and in the mean 
 l - time to be of the good behaviour. He appeared and was in~ 
 M diffedtor flanderous words fpoken,"y/>;tv his bindings to a fquirc, 
 namely, Thou art a pelter, a lyar, and has t'Ad my Lordjlories y and 
 for breaking and entering the j't'.tire'i iiy, and thahng and vexing his 
 cattle, and lor tailing him afterwards a drunken knave. The in- 
 dictment was removed afterwards into the King's-llcnch, and 
 there it was debated divers times both at the bar and the bench; 
 whether admitting all that is contained in the indictment to be 
 true, any thing therein was in judgment ol law a breach of the 
 I . ! i .1/ nCC. And il blved, vk neither any of the 
 
 *' words, nor the trefpah Were any hi each of the good behaviour, 
 <c for that none of them did tend immediately to the breach 
 ° of the pea tho' the words liar and drunken knave, 
 
 u are provocations, yet tend they not immediately to the 
 
 M breach of the peace, as if King had challenged the fquirc 
 M to fight with him, or had threatened to beat or wound 
 " bim, or the like, fot tbcfe tend immediately to the breach 
 
 " of 
 
i$ ) 
 
 " of the pence, to a trcfpa r s oti the pcrfon, md tlicrc- 
 •« fore nrc I)i caches of the f the ^ood bc- 
 
 M haviour." 
 
 " Surety of the pence alfo (according to fome great 
 "authorities] is not to be granted, but When there is a 
 V fear <>l fome prefent, or future danger, and not merely 
 ,€ for a trefpafs or battery, or any breach • ace 
 
 * c that is pa// ; for this fort of J'urcty is only tor the fecu- 
 " rity ot fuch a., are in fear " 
 
 Dr. Burn, after giving a fuccincl and clear hiftory of 
 the feveral extenfions of the fenfe of the ftatute, cafe after 
 cafe, an J reign after reign, with ftriking propriety remarks, 
 that " one great inlet, to the larger and at length almofl 
 «« unlimited interpretation of the worJs, was a\\ aJjudica~ 
 " tion in Henry the Seventh's time, That it was lawful 
 " to arreft a man for the good behaviour, for haunting a 
 " fu (peeled bawdy-houfe, with women of bad fanutf' 
 and concludes with the following judicious reflections : 
 *' Thus the fenfe of this ftatute has been extended, not 
 * c only to offences immediately relating to the peace, but 
 *' to diver:: mifbehaviour not directly tending to a breach 
 " of the peace ; info much, as it is become difficult to 
 " define how far it (hall extend, and where it (hall ftop. 
 " Therefore, the natural and received fenfe of any ft a 
 " ought not to be departed from without extreme no - 
 " fity ; for, one conccllion will make way for anotl 
 " and the latter will plead for the fame right of admiffion 
 " as the former." 
 
 Let the legiflature interpofe therefore, when they (hall 
 think fit, and fee the public fafety requires it ; but, \ h 
 no crown Judge will ever pre fume, for the future, to do 
 more than jus dime* and not jus dare. Ev rj day makes 
 one more lenfible of the wifdom of Arifiotles counfel in 
 making laws " {Quoad ejus fieri poflit, quamplurim 
 *' ipfis definiantur, quam pauciffima judicis arbitrio rel n- 
 " quantur." If Judges are not bound I h chains 
 
 of laws, cujloim, ordinances, and Jiatutes, it is impoflible 
 to divine what a fervile Chief Juftice may 
 out for law, to gratify the fpleen of an anxiou 
 
 * Whoever is inclined to BDtei fully into this im 
 Surety fir the 21 
 
 dc Pace, I 
 
 K And 
 
( *o ) 
 
 And fuch a horror have I, particularly, of the intro- 
 duction of any new criminal law into tins country, that, 
 were it to happeOj lather than fubmit thereto, 1 fhould 
 he even for accompanying :i noble Law-lord to VI- 
 whtch, by the Oliver he fpolce of it with, I 
 guefs mutt be Scotland, the very northern fcrag or blcak- 
 efl barebone of the illand. A man would fly any where 
 in fuch cafe. 
 
 When the Archbifhop of Canterbury and fix other 
 Bifhops were called into the Council-chamber by James 
 the 2d, and only prclTcd to enter into a recognizance, 
 " They faid, they were informed that no man was ob- 
 " bliged to enter into recognizance, unlefs there were 
 " fpecial matter againft him, and that there was oath of 
 *' it made againft that pcrfon ; and at laft they infifted 
 •' there was no precedent that any member of the Houfc 
 u of Peers fhould be bound in recognizance for mifde- 
 " meaner. The Lord Chancellor (Jeffreys) (aid there 
 '- ere precedents for it; but being defired to name one, 
 " he named none. Thereupon the Archbifhop declared 
 " he had the advice of the beft council, and they had 
 41 warned him of this." Let me afk then, whether the 
 privilege of parliament is greater in one houfe than in the 
 other ? 
 
 It is further obfcrvable, that there is no adjudged cafe 
 •where this demand of furety for the peace in libel, has 
 been determined to be legal ; the crown hath in fomc 
 cafes, as in that of Mr. Amherft and others, after infix- 
 ing upon ir, avoided having the point determined, and 
 rclinquifhed the claim to it, but not till the laft minute : 
 it is contrary to the general principles and notions of law ; 
 and it may be the means of great opprcflion. Any gen- 
 tleman would therefore fcrve his country, by refilling fuch. 
 a lawlefs demand, and by having it folemnly argued, upon 
 the firft oce;.;: 
 
 When a man is charged with a libel, by an arbitrary in- 
 formation , he muft cry out, like a Roman of old, 
 Provoco ad Populum; I appeal tr> my country, that is, to 
 a Jury of my equals. 1 will give bail for my appearance 
 to try the validity of this charge before- them, but 1 will 
 do nothing more. 1 i urd till very lately, that At- 
 torn yC upon the caption of a man fuppofed a 
 
 libeller, 
 
( 3i ) 
 
 libeller, could infift upon his yivin;!; fecurititt for hi3 good 
 behaviour. It is a do&rine injurious to the freedom of 
 every fubjccl ; derogatory from the old conftitution, and 
 a violent attack, if not an abfolutc breach, of th~ liberty 
 of the prefs. It is not law, and I will not fubmic to 
 it. 
 
 What makes me Inflfl the more upon ?.ll thefe points 
 is} an afTurance that the legal methods of proceeding in 
 every cafe of libel, are fufficiently fevere, and that there- 
 fore all illegality is totally inexcufable. The profecution 
 is heavy, and if the fuppofed offender be found guilty by 
 the Jury, his punifhment may be extremely grievous. 
 After the trial, all the circumftanccs that appeared are 
 reported, by the Judge who prefided, to the Kings Be 
 and this Court gives judgment thereupon, after delibera- 
 tion, and both can and will proportion the punifhment to 
 the cafe. They may, after conviction, pillory, fine, im- 
 prifon, and even infift upon fureties for the good behavi- 
 our, according to the nature and degree, the mifchic- 
 voufnefs and tendency of the libel. In bad times, Sir Sa- 
 muel Bernardifton, for letters not very extraordinary, was 
 fined 1 0,000 i. In good times, Shcbeare, for the moft 
 feditious and treafonable libel that could be penned, was 
 fined in no very great fum on account of his circumftances, 
 but was pilloried, committed to prifon for two years, a;:d 
 oblig-d to find fecurity for his behaviour, in a pretty 
 tolerable fum himfelf and two fureties in as much more, 
 for feven years to come. This may be done in the re- 
 gular way of proceeding, and feems to be as much power 
 of punifhment as can be wanted, for a mere mifdemeanor; 
 becaufe I prefume nobody chufes to revert to the addi- 
 tional punifhments inflicted before the ftar-chamber was 
 fupprefled ; fuch as public whippings, burning in the face, 
 flitting the tongue and noftrils, cutting off the nofe and 
 ears, and long or perpetual imprifonment ; which was 
 the treatment of writers againfr Administration in thole 
 days, and was abfolutely inflicted at one time upon the 
 three liberal profeflions, in the perfons of a clergyman, a 
 councilor, and a phyfician. 
 
 If the libel be upon the Legiflature, and the Libeller a 
 
 Member, the Houfe will expel him, as Quuen Anne's 
 
 Tories did Sir Richard Steele, for charging the Queen, 
 
 h 2 " au^ 
 
- ) 
 
 ind 
 
 .. in i 
 
 K: . In- 
 
 • 
 plaii 
 
 thai i. • nony 
 
 i [although 
 
 ■•• 
 
 Mr. \ there, and carried o 
 
 j on • ... . ■■ tminfterHall, oranywbtrt 
 
 I do not ' Mr. Wi1k< S in this place as 
 
 I v, hiving ever avoided his 
 
 . ay, what indeed the H. 
 
 of, from the gofthe reign of Charles the 
 
 Firft to the prefent ti ill nitrate, that profecu 
 
 ■mi, and are purfued with a fpirit 
 I\Kii aic upon fuch occafions apt to do 
 things which in coolct moments they would b 
 
 : , I mult 
 i been his conftant comrade, 3nd my doors 
 « >re the partak r < f his 
 
 , I 
 . r ; :i the i fe or 
 
 pub- 
 is the 
 an incli- 
 I all 
 i . 
 
 loti 
 ■in onfiftent and nioft 
 • in; anion 
 my I fl n upon the 
 
 , or even 
 
 :nre, 
 I it) will 
 
 ife or mirth, 
 h 
 j worfl "t 
 
 ga; 
 
( 33 ) 
 
 gangs, they fhould at lcart be true to each other, a~. kindred 
 fouls. In my own opinion, thia ludicrous Libeller did himlelf 
 all thnt his fevered enemies could wifh, to turn his own 
 cafe into ridicule) and to let the people fee that a love of 
 farce and merriment predominated in all his actions ; and 
 that he had too much levity and vicioufnefs of natural con- 
 ftitution, to make the good of his country the rule of his 
 conduct in any one action of his life. But the fiirjit of 
 thole very things Ihould make grave men of all fides at- 
 tend to the conititution in fuch contcfts of profligacy, to 
 prevent the lawe of their country from being made either 
 the fport or the Incrifice of party upon the occafion. A 
 point that is carried for the lake of punilhing a worthlefs 
 '\v, may he cited hereafter as a precedent for the 
 ms profecution and oppreflion of an excellent 
 
 The mod refpcclful and conflitutional of rcmonftrances 
 from (even bifhops, in behalf ot the eftabliflicd religion, 
 has been treated as a feditious libel, and nothing but the 
 hondh* oi a Jury faved them from the mod- unjuft con- 
 demnation. " The Attorney and Solicitor both affirmed 
 " to James the 2d, That the honefteft paper relating to 
 " natters of civil government might be a feditious libel, 
 " when prefented by perfons who had nothing to do with 
 " fuch matters, as (they laid) the Bifhops had not but in 
 " time of parliament *." 
 
 Mr. Somers's medfji plea for the Church of England, 
 underwent the fame denomination, although it was no 
 more than a feafonable defence of our national worfhip, 
 upon the true principles of the constitution, againfr. an 
 arbitrary and Popifh Court. 
 
 And I remember myfelf a tiny pamphlet, publifhrd by 
 the Author of 1'he Confederations on the German war, 
 qucftioning the merits of the defence of Minorca, by ar- 
 gument, not by hard words or foul names, which was un- 
 fortunately on motion in the King's Bench deemed a libel, 
 and an information in the ordinary way granted againft 
 the writer, whereby he became a confiderable fufferer ; 
 and vet 1 believe any man who were to read this perform- 
 ance now, fixe from prejudice, would never concur in that 
 opinion. 
 
 * See I.crJ Clarendon's State Letters, p. 317. 
 
 In 
 
( 34 ) 
 In fhort, one cannot guefa what may, or may not, in 
 feme unlucky tin i libel In- fome fudge 
 
 ;hcft or loweA of Autl 
 
 or the C< 
 t Patriot or the ! ... . , : the A- 
 
 ma rivate Junto . in Choir, the moft nf\ 
 
 <>r the paltrieft of Coffee-house 
 
 . . chance 
 I 
 
 i to have a 
 
 int- 
 
 it the ceconony or 
 
 r, and eitl ifh, 
 
 i of ju (tinea tion oi his pretentions, tetters that n . 
 
 : r , lor au I held a libel, tor 
 
 1 I information, and 
 
 whereto do defei I a little management, 
 
 fhould 1 j po/fible, and which counlt.1 might fairly 
 
 M inout the lofs of their chai 
 If a m«> ,v to publifh an ode, like that c 
 
 Pultci. IL 
 
 " Let's out for England's glory," 
 inviting any courtier to join in measures of oppofition to 
 the ad minift ration, and it was to be written with half the 
 fpirit and beauty, it might be the ob ct of an information 
 ex cj/uio, as a libel, altho' no man turned of thirty, I 
 
 jfe, would tlnnk any placeman could be moved th- 
 ey to oppofe the court, and quit a part of their tinery for 
 the fake of being a | . . 
 
 Nay, if it be law, that a man may be guilty of a libel 
 by writii • the dead (as \. ng) I do not 
 
 iVc how the world is e< . ails the actions of aJ - 
 
 nifiration, or air, man to publifh animadverfions upon tlicir 
 in particular inftances ; DOT what is to become 
 of the licenfed hiitorian, with his rule oi .ere 
 
 audcat. 1 nple, if I was I 
 
 Chancellor, that I could Dot think be merited the appx 
 tion 
 
 circumfped, prerogative lawyer; that be leaned in his 
 
 much towards ariftocracyi that be feemed, 
 
 in his politics, to approach much nean r to the principles 
 
 of the Earl of Clarendon (whole title he once aiicclcJ) 
 
 than 
 
( 35 ) 
 
 than of Lord Somcrs ; and that, at laftj upon what 
 public principles he joined the opposition, after having* 
 been in all things with the court for forty yean before, 
 I could never learn. It feemed, that even his oppofiti >n to 
 or rather difapprobation of, the peace, procee led rather 
 from a private dittatisfadtion at the nun who h . , I 
 at laft to have the making of it, (his old friends being 
 difplaccd) than from any motive of public concern ; and 
 fomc of his reafona againft it, indifferent men thought 
 the ft rouge ft in its behalf, namely, the delineation of 
 our boundary in North America, which, altho' the courfe 
 of a great river is made to defcribe, he objected to, 
 becaule its extremely diftant fource could neither be af- 
 certaincd or denominated. His difcourfe, it was remark- 
 ed, favoured more of a draughtfman arguing exceptions, 
 than of a ftatefman difcuffing a treaty. And nothing per- 
 haps like it can be recollecled, favingone equivocal Ipcech 
 of a fimilar texture, delivered in another place, but at 
 the fame time and upon the fame occafion ; where the 
 arguments were fo artificial, qualified and verbal, without 
 edge or fubflance, that it would be extremely difficult to 
 put into clear and dillincvt propofitions, what was either 
 affirmed or denied, touching any of the articles therh- 
 felves. Indeed, I could never determine whether he had, 
 or had not, a good conception of our foreign interefts, 
 altho' I a»m perfuaded he had a thorough one of all the 
 domeftic connections among us. I might add, that when 
 a bill for a militia was prcfented, altho' he liked the 
 name and fpcciouflv commended the defign, yet he fore fa w 
 great difficulties and infinite danger in it, recalled to mens 
 minds the public evils that followed from arms being put 
 into the hands of the people, no lei's than the deftruction 
 of royalty and the fuppreflion of peerage ; and fo found 
 innumerable objections, both religious and political, to 
 the form and the fubftance of the feveral claufes, and to 
 all the regulations propofed. The tide, however running 
 for the meafure, both as a national ftrength and a counter- 
 poife to a Handing army, he fuggefted fe\ ral enervating 
 amendments, to reduce the number propofed one half, 
 and to have the other either officered wholly by the crown, 
 or elfe unofficered at all, as a mere fund in the hands of 
 the King, for the better fupply of his (landing army. The 
 
 number 
 
( 3^ ) 
 
 i i .:id other i 
 
 i an , 
 
 t fo managed in hi , that the 
 
 i never cither embodied, or con | 
 
 i .in fpitc of the alternative the pui ,- 
 
 1 v.. apparently a principal man in, 
 i i new Habeas C< bill, | 
 
 unanimoufly by the Commons, am 1 calculated for the 
 i >n of lome cvafions of the old act : and pro- 
 
 , in conceit with another new made p -er, the mar- 
 , anJ, having difapproved afhort bill diawn by 
 the Judges, obliging people to marry in churches, that 
 their marriages might be regularly regiftered and capable 
 of proof; had the reputation of drawing another, filled 
 with claufes calculated for the prevention of all marriages 
 without confent, with a view, as it mould feem, to per- 
 petuate, as much as might be, a fortune or family once 
 made, by continuing from generation to generation, a v. tit 
 
 cr of propcrtv, and to facilitate- at each dclccnt, the 
 lumping of one great fum, or one great family, to an- 
 other, by bargain and fale, in oppoHtion to the generous 
 principles of equality and diffuiive propcrtv, which I 
 flates have always encouraged. The royal family, how- 
 ever, was excepted out of this late act, altho' their mar- 
 riages are alone an object of public concern or influence. 
 I might afk too, whether his Lordfhip did not uniformly 
 throughout his life, purfue his own private intcrcfr, and 
 raife the grcatcfr fortune and provide the mofr. amply for 
 his family, of any lawyer that ever lived ; and win tin r, 
 during his dominion, the judicial promotions were dif- 
 
 ! of upon miniftcrial motives, or merely agreeable to 
 profcffional defert. 1 might nevertheless, and ought to 
 add, that the fame illuftrious perfonage was blefled with a 
 good temper, and great worldly prudence, which are the 
 two hand-maids in ordinary to prosperity ; that his whole 
 deportment was amiable ; and that he po fie fled, in gene- 
 ral, the founded undcrfianding in matters of law and 
 equity, and the heft talents for judicature 1 had ever fecn, 
 that DC might be cited a* an example, in this country, of 
 
 the perfefl <>t • good Judge, which my Lord Bar 
 
 con had fo admirably drawn ; and that he was, in fh 
 a truly wife magiftratCi lie vai dec from the leviti 
 
 vices, 
 
( 37 ) 
 
 :, and cxpcnccs, which are (o commonly the product 
 of ,i lively and purient fancy. His flation did not require 
 nor his j^t- 1 1 1 hl: turnilh him with imagination, wit, or elo- 
 quen< . AnJ, perhaps, had he poflefied a true tafh 
 the fine arts and the politer parts or literature, he would 
 n vet have hcen io extenfive a lawyer, to which however, 
 the plainnefs of hi, education might have fomewhat con- 
 trihuted. In fhort, one might fay that Lord Somen and 
 He fecm to have been the reverie of each other in every 
 refpect. 
 
 Now, this might be profecuted as a libel on the dead ; 
 whereas, the writer penned no part of it malicioufly, nor 
 falflely, as he believed, and did not mention a tenth part of 
 what ne might, in fupport of the juftnefs of the character. 
 And therefore, unlefs a matter be thoroughly canvaflld, 
 and gentlemen at the bar will fpeak out to a Jury, that 
 they may have the proper information ro deliberate upon, 
 it is hard to fay what may not very glibly pafs at one time 
 or other for a libel. Every thing depends upon the Jury's 
 judging for themfelvcs. 
 
 If they once give up this right, we (hall never know 
 any thing o( public tran factions, but from the moll 
 partial and leait credited of all mankind, from writers 
 employed by the authors of the meafures themfelvcs, who, 
 like Scotch Reviewers, may have the face to attempt to 
 make Englishmen believe, that a man can be a conltitu- 
 tional judge, who quits the laws of the land and deviates 
 from the eilablimed practice of courts, in fpight of com- 
 mon fenf'e and the conftant declaration of our anceftors, 
 nolumui leges Aiigllcs mutari. Let the dependent judges 
 before the Revolution have advanced what do&rTne 
 they pleafe, the fail has been, that juries have always 
 exercifed the right of determining what is a libel, "it 
 hath laved this confritution often, is the great bulwark of 
 liberty, and fhould never be refigned, but with the laft 
 breath. 
 
 Few men know much of the nature of polity, and, of 
 them, all do not fufficiently attend to the conduct of Ad- 
 miniftration, to obferve when flight innovations are made 
 in the laws or in their Adminiftration ; and, of thofe 
 who do, very few indeed have that degree of undemand- 
 ing which enables them to judge foundly of the confe- 
 
 P quinces 
 
 H353 
 
5« ) 
 
 , with rel Fvrtics 
 
 . ii t m re than 
 lution, ami public I: 
 • I 
 
 oncerning what - in 
 
 fellow 
 
 in the conftitution, 
 
 whi bi in on a tot 1 lofs ol ! i i ei- 
 
 >lly unnoti clfc ire i ^- - mere 
 
 \ , .'.O'l bur 
 
 nmcJij: r the lake of compal- 
 
 fing their own rndS| there rs nothing which party men 
 \)o> ptr >. an eftabtifhed high- 
 
 churchman will perfecute t\ ith, nnv other man or 
 
 divine that queftionshi rity or his doctrine. From 
 
 lents of all Porta of illegal and unconfti- 
 liniftera (as> not one in a th >u(and is 
 any principle of public good, or even 
 e of hooeft fame} for the fake ol power, title, ie?, 
 and pre-eminence ol any kind, will deceive the belt in- 
 
 rince, and minuter to the hun-.our, tolly, \ 
 
 and domination ol the worft. On 1 i-bill, no 
 
 more than two, even of the I , enture to 
 
 it, alt ho' their r.iflv [.ended upon the 
 
 itinuance o 1 Voteftant religion, which that bill 
 
 avowedly framed to | Mow, u en an im- 
 
 ience and 
 trine 
 held witl i to writii that 
 
 animadvert upon public pr< , and the ufe th 
 
 , an information, 
 
 I to male 
 ul f 
 
 , that if the reigning notions 
 will 
 t lefs to ufe his pen, igainfl 
 the Ad mini (hat ion that can take pla< . 
 
 >ndi- 
 what 
 it an univerfal acquiefi 
 
 , that i>> • ght paflive 
 
 There 
 
(' 39 ) 
 
 There is one | •: n, why every patriot fhould wifli 
 
 this fort of writings to be encouraged ; which is, that i: i- 
 madverfions upon the conduct oi minifters, fubmitted 
 lo the- eye "I the public in print, muft in the n 
 the thing be .1 great check upon their bad actions, and, at 
 the lame time, an incentive to their doing of what ispraife- 
 worthy. Nevcrthelefs, if it be once clear law, That a 
 paper may he a libel, whether true or talle, written 
 Bgainft a good or bad man, when alive or de ' , 
 who is there that may not continue a Minifter, whe- 
 ther he has a grain or' honefty or understanding, if he 
 fhould happen to be a Favourite at Court? The wi 
 his actions are, the more truly and ftiarp the writer 
 Hates them ; and the more the public, from his juftpeafon- 
 ings, deteft and crv out againft them, the more fcandalous 
 and feditious of courlc, will be the libel ; for, the truth 
 cf the fact is .. 1 i gtion ot" the libel ; and it was 'J'h:.c 
 
 which occalior.ed the clamour. There is but one (rep far- 
 ther before you arrive at complete defpotifm, and that is to 
 extend the lame doctrine to words fpoken, and this I am 
 pcrluaded would in truth very foon follow. And then 
 what a blellcd condition fho ild we all be in ! when nei- 
 ther the liberty of tree writing or lice fpeech, about every 
 body's concern, about the management <.i public money, 
 public law and pu .ii.s, was permitted ; and every 
 
 body was ahnid. to utter what every body however c 
 not help thinking ! 
 
 With refpe& to Jibels on a particular perfon, in his pii- 
 vate capacity, there may be fome foundation for a doc- 
 trine of this fortj becaufe, as the welfare of the State 
 has nothing to do with his private tranfa&ions, you ou 
 not to make reflections v. h;ch may injurehim in his cal 
 or his reputation; you muft always do this out of p< 
 nal fpite, and therefore ought to be punifhed for fuch your 
 malevolence. 
 
 Bur, the cafe is totally different with refpecf. to an Ad- 
 miniffration ; for the country in general is always the bet- 
 ter or the worfc for its conduct, and therefore every man 
 has aright to know, to confider, and to reflect upon It. 
 Their polls in the State, or their public chi rafters, are 
 not like any individual's particular trade, profeflion or for- 
 tune, or his private character. The writing of them out 
 
 V 2 of 
 
( A I 
 
 mm rnt is not a loL for w' 
 
 i in damage . The li 
 
 '. only to be quarr. <7//;/, ni 
 
 people .it large ought to be > 
 his country is rcprefented, and confequently i 
 (lature icd 
 
 •■.ifion of thefe two different kinds 
 
 and upheld trom vl motives, it 
 
 n laid down. 
 
 ti< n i , tl ■ in public lib It the truth oJ the 
 
 thoi :". with regard to | libels. The 
 
 [led in this .nation being 
 
 Wh • elves aggri 'he violence or 
 
 us appointed to the Miniftrv, it 
 r them to complain, to co nmunicate their 
 put thcii ;i their cuard, 
 
 print againil th? public ; in g s> 
 
 t (o to do, as much as a boron 
 i i .'iirt candidate, ai ilifh the 
 
 ..nd both 01 th tfl will I hope 
 
 xercifed until tlicic can be both a < dire and 
 
 . and a conge d'elire, cftablifhed in th 
 i already is in the church. The liberty ot expofing 
 .•. had Adminiftration b ,■ the pen, i> ai 
 
 :.c ptuplc, and is perhaps the 
 
 the liberty <>t the 
 
 But Minifters, who by their mifd the 
 
 out and complain, to make that 
 
 t the foundation of a new o] . by 
 
 ibel on the State. N i 
 
 :i arife from their 
 , ii they arc true, tb< v are highly i 
 mehdable ; if they ; . they are certainly n 
 
 licious, feditious and , TJ 
 
 be 
 ol U-. li .-.'. an | writer *■ an pul 
 t . the wofld the jufl li ai I , 
 
 pie and th 
 d with the adminid ation, i kn 
 t. Nay, I fcarcel] i n fi m to 
 
 know th ;.illry he 
 
( 4i ) 
 
 appointed is bad. However, ifa mitiifter notwkhftand- 
 inglh mid i ontinue a favourite at Court, an I the people be- 
 ing affected with what was written (hould lamor, ana have 
 great rcafon for fo doing, I make no doubt but any At- 
 torn n the (lighted hint from tfa 
 
 j ] i, . : file an information againfl the Writer, and 
 
 charge him at once with endeavouring to alienate the 
 
 of the people, and to raife traitorous infurre&ions 
 againfl. the peace of the King ; altbo' it were obvioui bo 
 every indifferent perfon, that the unlucky writer bad no 
 
 fuch intention, nay, had been ready on a former octftfion 
 voluntarily to affociate tor the defence of his Majefty's 
 titic, and to venture his life in the field to fupportit. And 
 yet I am fully convinced, that were it not tor fuch writ- 
 ings ad have been prolccuted by Attorney-generals for 
 libels, we fhould never have had a Revolution, nor his 
 prefent Majefty a regal Crown •, nor ihould we now enjoy 
 a protcllant religion, or one jot of civil liberty. Kings 
 can hardly receive any intelligence but what their miniilers 
 give them, and thefe gentlemen, being generally guided 
 by avarice and ambition, endeavour to iep'cfent every man 
 who firives to get them difmifled from their employs, as 
 one whq is about to attack the throne itfedf, call him trai- 
 tor directly, and then exert the power of the crown to 
 demolifli bim. The ufeof the word trtpfonable is gene- 
 rally, to give them a pretence for difregarding the com- 
 mon rules' of Law and Juftice. And if tliey arequeftior.ed 
 in parliament for what tbey have done, they are in hopes 
 a majority may be procured to come to a refolution in 
 their favour, or at worlf, to prevent any from being 
 come to againtt-them. And then, who dares fay they 
 have done amifs ? 
 
 Libels are bv no mcrms a " h?.rmlefs fport" ; for truth 
 .alone can excuie any man in complaining even of a bad 
 magiftrate : but yet, I cannot think them fuch drea<lful 
 ihingi as vindicate ministers in breaking through every law 
 for the fake of coming at the writer. I believe mod fober 
 men, who fee already what lengths fuch profecutions may 
 be carried according to law, and how deeply the liberties 
 of the people may be affected by fuch means are of opi- 
 nion, that if fomc of the legal methods of . r( fecution now 
 acquiclccd in were done away, the conitnuiion would be 
 xtter for it. The prerogative which an Attorncy-ge- 
 
 nei al 
 
( *« 
 
 .! atliimt -«i of filing an information againfl 
 he pleaies, is certainly a reproach to a 
 it the regular information awarded upon fpe< :ial motion by 
 Che King ;< likew taken away, I linfc 
 
 the conftitution would b it: in which cj 
 
 old common law method ol i libel, isavio- 
 
 lation of the | , would 
 
 mud retort to ; and in my own opinion a in ! jury * are 
 very competent ai any pub- 
 
 •;i be deftl :utive lo the welfare of the (late or not. 
 Altho* tbi n vet no licenfing a;! , except for 
 
 ; ifa man prints what is fup| - , either 
 
 on the (late, 01 any particular perfon, be :• liable to be 
 profecuted tor it. But people like to fee i'ecutior 
 
 forward in the ordinary way, as w with Dr. 
 
 Shebeare : in companion with whofe writings, thofe of 
 Mr. Wilkes may really he (aid to be " . v^rcile oi 
 
 wit and talents, and an innocent the liberty of 
 
 the prels." Mankind will ever diflike violent proceedings. 
 Altho' the perfon himfelf may m ait the chaili foment h_- 
 meets with, yet if this he inflicted by illegal methods, it 
 will make every man fear, fhould he raife the refentmertt 
 of the miniftry, that himfelf would be treated in ] 
 manner, whether he had committed any crime in law or 
 not. If things arc done in one inltancc contrary to ' 
 they may in another. No man is fecure, when the . . 
 of the land ceafe to be a protecton. Although the mef- 
 n, be not at my d it is very 
 
 :o find that it is no longer in m\ power to be 
 icca. r being there. My liberty is equally gone. 
 
 eceffities Of (late can ever be a reafon tor quitting 
 road of law in the purfuitol a The ta k. 
 
 . n the mini 
 , for the lake of brin jing in fome other man ; and fo 
 from bcir. be inftance the moft dan- 
 
 ger: : srtainly not at .all fo, if by 
 
 l he meant the efrablifhment itfelf. 
 Whether the warrant of I 
 or for a feditieus and trea libel, makes no difference! 
 
 . .. 
 
 The 
 
( 43 ) 
 
 The fact indeed is, that the * warrant, which was for 
 apprehending perlons and papers, does not mention the word 
 libel at all, but ules the terms, (i /editions and treafontbU 
 faper\ and the feoohd ** warrant, which was lor com- 
 mitting Mr. Wilkes to the Tower, makes ufc of the 
 terms, a moll infamous and fditious It if I, So that there 
 is a diversity of denomination and defcription ohferved by 
 the drawer of the warrant, whether, the lame were the 
 Secretary of State, his law clerk, or the folieitor to the 
 trcafury. Then comes the Attorney General, who files 
 his information ex officio ngainft the writer, and charges 
 him with writing a libel. Now, he certainly knows what 
 
 he 
 
 • George Montague Dunk Earl of Hallifax, Vifcount Sun- 
 bury and Baron Hallifax, one of the Lords of his Majelly's 
 moll honourable Privy Council, Lieutenant General of hi$ 
 Majeffs forces, and principal Secretary of State. 
 Thefe are in his Majelly's Name to authorize and require you 
 (taking aconllablc to your aflillance) to make drift and diligent 
 fearch for the authors, printers and pnblilhers of a feditious and 
 treafonable paper intitled the North Briton Numb. 4^. Saturday 
 April 22,1763, printed for G.Kearfly in Ludgate-llreet, London, 
 and them, or any of them, having found, to apprehend or feize 
 together with their papers, and to bring in fate cuilody before 
 mc, to be examined concerning the prcmilTes and further dealt 
 with according to law. And in the due execution thereof, all 
 Mayors, Sheriffs, Juftices of the Peace, Conilables and all other 
 his Majelly's Officers civil and military, ana loving fubjc&s whom 
 it may concern are to be aiding and affiding to you, as there (hall 
 be occafion, and for fo doing this (hall be your warrant. Given 
 at St. James's the 26th day of April, in the 3d year of his 
 ::y's reign. 
 
 Dunk Halifax. 
 To Nathan Carrington, John 
 Money, James Watfon, and 
 Robert Blackmore. 
 
 • * Charles Earl of Egremont, and George Dunk, Earl of 
 Halifax, Lords of hisMajelty's moil Honourable Piivy 
 Council, and principal Secretaiies of State. 
 Thefe are in his Majelly's name to authorize and requii 
 to receive into your cullody the body of |ohn Wilkes, E q. he e- 
 with lent you for being the author and publisher vt a moll infa- 
 mous and feditious libel, intitled, the North Briton, Number 
 45 ; tending to inflame the minds and alienate the afie&ions of 
 
 the 
 
( 44 ) 
 
 he is afoot, whether the otbert did or hot; arid there 
 there is no longer any room to difputc about the < imc, 
 it i ed. Indeed, the Km \ a | t«> the 
 
 1 Louie, d< liv< k d In th i . , touch* 
 
 th i n e ..Is ir no more than a moil I 
 
 •nd . and the Refolution of th I ions 
 
 it but a . 
 Bat .1 dei ifu c n gument upon this head is, that h. d the 
 cha: other thans* misdemeanor, it could not fa 
 
 been profocuted in to . lor, no tti$n will 
 
 :1 crime, or tor mifbriuon < t treafon. 1 he 
 
 lbtute lavs, it (hall not lie for life <>r limb. 
 
 It is childifh i . whether the printing of 
 
 any particular li:>cl, as for inftance, i I th North Imton 
 No. 45, M is to be confidered as no higher an orrencethan 
 " publishing a libel?" The Attorn< " had it been 
 
 M adjudged to have excited, inftead of tending to excite, 
 " it would have been no lefs a crime againlt the State, 
 M than th it of hi h treafon, without any palliation what- 
 * l (.•■ which I canonly fay in a plain way, that had 
 
 it been adjudged to have been (bmething elfe than a libel, 
 it would not haw been adjudged what it was ; for, I do 
 not know thi .v-logic ever proved tibtl and high 
 
 treafon, to be convertible terms. No two offences can be 
 more diuinet in their nature or kind. One is by conjiruc- 
 
 , and the other is the highcil of 
 all ce : cprefs Hatutc. 
 
 To compafs or to imagine (that is to excite to, or in- 
 
 of the King is H - 1 is 
 
 the people from his Majefty, and to excite them to traitorous 
 infui And to keep him fafc 
 
 , ,. : . due courfe oi law ; for 
 .his lliall be vnur warrant. Given at St. James's the 
 oi April, 17631 in the 3d year of his Majefty's reign. 
 
 - 
 
 Lord 
 
 . 
 
 .,1 his . 
 • 1 Q, OI 
 
 j ieuiifuiit dI 
 
 ' 
 t • " 
 
( 43 ) 
 
 niflicJ with lnfb o ging, dra\ I [uarter> 
 
 lug, Whether the King be kill l,orev n hurt 01 not. But 
 thr. dbctrin holds ii n i tther i .For, 
 
 petn trcafon, which is the next thai the lay 
 
 knows, and whi< Ii is the murder of a hufhand by the wife, 
 or of the m after by the fervanr, the incitii g of others to 
 
 perperratc the fact, or any Attempt tb do i( onefelf, with- 
 out effect, is only punifliable as a mifdem anor and as an 
 aH'ault. Let us not then be lb impudently impofed upon 
 as to be told, that every Hop we take in q'u< dinning the 
 acts of a minifter, i ■, high trcafon. £\ ' rWeft- 
 
 minfter mob, every rot, every abulc of adminiftration or 
 of a party; « Mai's or anirfladver'fio'n upon 2 pro- 
 
 clamation, or upon a fpcech from the throne, or, in fhort, 
 upon any other public meafure oi the miniftry, will in inis 
 way of reafoning (or>n be deemed Treafon - , to the difgrace 
 ofourlehes the difhnnour of Our constitution, and the lofs 
 of the rights of a free people. 
 
 In truth, I hkewife fuprJofe the Attorney General knows 
 }> is bufinefs too well to denominate any offence a libel, and 
 to prolecute it b information only, if he means to have 
 it confidered as high trcafon. 
 
 Indeed, I have h:ard in difcourfe, that a certain laborious 
 minifter has whilpered many of his friends, " whatever they 
 M might hear from others, that the law-officers of the crown 
 " had aiiine.i h;m, Mr.Wilk.es mi^ht have been profecuted 
 " for high tre:fon ; but however, they were not willing 
 " to pu(h things againft him to the ucm >ft." An afierti on 
 that is Icarcely to be parallelled (I believe) for its folly, 
 profligacy or effrontery ; and which, in a country where 
 nothing can be done nut bv law, defcrves no other anfwer 
 than this, "• I wifh you had attempted it, for if y u had, 
 ** it would have ruined you, and you would havedeferved 
 " it, as the only adequate reward tor your pains." The 
 Epping-foreft cafe would not warrant this pofition, I can 
 allure him j and I am certain he has a private friend, a 
 candid lawyer, who would ftrongly dilTuade him from really 
 making fo ridiculous an aaempt. I fay this, becaul 1 
 fuppole the minifter himfelf, is now become fo Right Ho- 
 nourable, that he ceafes any longe. to be learned in the 
 laws of his country. 
 
 M The earl of Bnftol, having exhibited a charge ol Trea- 
 " fon againft the E. of Clarendon, alleged, Thai h haJ 
 " endeavoured to alienate the affection's' of his Majefty'a 
 
 G 
 
( 46 ) 
 «' 1 1' 1 hi Ma~ 
 
 - . . nd that he had tradn of 
 
 •« parliament. The Judges were orden 
 tl opinion whether thi »n or noi They una- 
 
 « l nimouflv agreed, That it the matters alledged in the 
 *' charge were admitted to b i true, altho' alledged to be 
 I there is ; I in in it." 
 
 Wh) then, is the Attorney ith any other man 
 
 for talking of No. 45, as a libel f He birnfelf, with all his 
 1 . plexityofl •> can tell no more I Why 
 
 d he fcarch for words to denominate " feditious 
 4C writings, a fubtile poifon, the feed of jcaloufy, revolt 
 " and difcord, the parent at leafl if not the offspring, 
 "of trcafon?" (Or why not both parent and oft'^p; 
 at one and the fame time : the fejjfe will not be hurt, and 
 the creed be more orthodox r) In every light he can put 
 thefc writings, they will appear the fame, their nature 
 will not alter, they will flill be but libels. 
 
 Indeed there is a great deal of difference between libel and 
 libel, as between other individuals of one and the fame fpc- 
 c , ionic having more and others lefs wit, fome being 
 more and others lefs perfonal, fomc levied againft the cK.i- 
 Wifhmcnt, and others againft that varying thing a miniftry. 
 example, The Sixth Letter to the People of England 
 a rr.oft grois attack upon the prefent conftitution and 
 fucceflion ; but The Teji % The Letter ver/s/Ud, and Rodondo, 
 were merely perfonal abufe upon -Mr. Pitt, his LaJy, and 
 her cldcft brother. Mock- Pair iotifm took a middle flight 
 between the abufe of one or two individuals, and that of a 
 whole party; altho' for the beauty of it:, im , the hap- 
 pinefs of its allufions, and the elegance of its expreflions, 
 it was rara nuis in this predicament of writers: none of 
 whom however were without fomc wit and merit; ex- 
 cepting always the dull and rancorous Jacobite firft 
 named. In 'ruth, abufive fatire has been dealt in pretty 
 equally of all fi 1 , and the only meafure has been the abi- 
 lities of the I men. When fomebody fhewed 
 a North Briton to old Johnfon, turning his definition of a 
 penfioner upon himfelf, he very cleverly anfwered, " It 
 «« is fair enough, I have no reafon to complain, 
 
 " A . i':or ullti 
 
 yam netu fua, n 
 
 After all, the Attonu « an not help fpcaking of 
 
 uon of libels as an exercifc of wit, and there- 
 upon 
 
( -;; ) 
 
 upon " fappofing the authoi of? ' f may chufe by and 
 •* bye to amuft himfelf I and then roundly 
 
 charges tin n nan M with perfonal in , and his" 
 
 fuppofed " friend with acrimony, envy, fpleen, o 
 
 " ncls and fell -importance" I \>'< '"i 
 
 fhetorick, well becoming the pen ol a miniftcrial writi 
 gainft libeh. And, he fpeaks of the ruin of a virtuous pa 
 triot by an information, with as much glee, as an old letcher 
 
 docs or" the debauching of a comely virgin by r;;vilhmcnt. 
 
 Nobody without doors thinks the cale of any " libel juf- 
 tifies ftrongly," or at all, " the practice of general warrants," 
 if it were only for this reafon, that every party again ft whom 
 a libel is levelled, always chriitens it ieditious, treafonabl?, 
 and what not ; and yet, whether it be any libel .it all, no 
 man has a right to pronounce, hefore a Jury of the country 
 has determined it to be one. They are likewile left nee 
 farv in this than any other offence, becaufe the publifhcr 
 mull always be known and may be come at, whether the 
 author be fo or not And " it would be (as Haivkins fays) 
 M extremely hard, to leave ir to the difcretion of a common 
 *' officer to arrelt what perfons, and fearch what houfes he 
 '.' thinks fit: and if a Jultice cannot legally grant a blank 
 " warrant for the arreft of a fingle perfon, leaving it to the 
 " partv to till it up, furely he can lot grant mch a general 
 " warrant, which might have the effect of an hundred 
 M blank warrants." 
 
 With refpecr. to the warrant of Lord LL if the form had 
 really been according to the " uninterrupted practice of the 
 " fecretary of State's office," this would not have made it 
 legal. But even this is not a foSt ; for one cannot help 
 remarking, that the old Tories under Queen Anne, the Re- 
 volution ibll tingling in their ears, were exceedingly cau- 
 tious, confillting council, probably upon the warrant itfelf, 
 before they ventured to take up a fubject ; infbmuch, that all 
 the warran s even of Lord Holingbroke, whilft he was Se- 
 cretary of State, appear to be itri&ly legal. In truth, there 
 has been no uniform practice in the office, as may be leen 
 by the variant and multiform warrants printed from thence 
 in Quarto, and privately diitributed to trufty friends by P. 
 C. VV. with the infeription of moft fecret. Much Lis would 
 precedents only from the time of the Revolution be fuffi- 
 cient to juji if y fuch an illegal practice. And as to the 
 pretence that this practice " did not then take its rife, 
 *' having been frequent in former reigns, reaching back 
 " perhaps to the remoteft times, and combined with the ve- 
 " ry effence of government," it is totally groundless ; for, 
 
 G 2 after 
 
( 4§ ) 
 alter the moll diligent fearch, no warrants of a fimilar form 
 couKI be lound higher than the reign <»i the Stuarts, but few 
 of them, and of thofc few hardly more than one- of an an- 
 tienter date than Bennel I i d v rl ngton, Secretary to 
 Charles the :d. From fuch pretnifes, however, this har- 
 dened writer would inhnuatc, that perhaps thev were uled 
 in the remotei) times, and are of the cfl . vernment. 
 
 This notable antiquity of office i^ indeed further fupported 
 
 by a note, which takes notice that the ad of Henry the Sth, 
 fettling prcccdcncv, mentions, among oth; r officers, the 
 Kim :rv. It docs fo. And what of that? This 
 
 was the a-ra of the reformation of Religion ; but, I ne- 
 \cr heard before it was the commencement of civil go- 
 vernment. No prior mention, however, of Kind's Secre- 
 taries, as officers of State, could, I fuppofc be found, and 
 therefore this or none mull be cited, is this now, in the 
 name of common knk, a proof of immemorial exigence ? 
 The fail is, in antient times, the King had only a private 
 Secretary for his Privy Council ; there was no fuch perfon 
 Secretary of State. He is the production of times with- 
 in memory (to fpeak as a lawyer;) and none of the many 
 books which treat of the great officers of State, and the Aula 
 Regis, make any mention of fuch a Being. '1 he 2d of 
 Richard II. which gives the aclion of Scandalum magnatttm, 
 in the enumeration of great officers of State, docs not no- 
 tice either the King's Secretary or the members of his Privy 
 Council. There is no mention made of the Secretary by 
 Fotttjque, Lord Chancellor to Henry the 6th, in a book on 
 abfolute and limited Government, which he wrote under the 
 reign of Edward the 4th, where he confiders the King's 
 Council and the great officers about the throne. In truth, 
 the Secretary's confequencc and power arole from his being 
 admitted a member of the Privy Council, and as fuch alone 
 it is that he can pretend to tlv power of commitment ; and 
 \et, B9 I take it, altho' the Privy Council, as a Hoard, have 
 
 constantly exercifed this power, no (ingle Privy Counsellor, 
 nor any member of Privy Counfellor not met in Council 
 a a Hoard, can pretend to fuch a Power. He this as it may, 
 and let the Secretary of State be allowed the power which he 
 lias long exercifed of committing, and which has been in fome 
 meafure recognized by courts ofjultice; as being fuppored 
 
 to act immediately per mandatum Ktgil, and to be the chiet in- 
 
 ftrument of his molt fa ret ( ommands, and the moil * onfiden- 
 tialof his Privy Council : vet, the being a Privy Counsellor 
 
 or Secretary of State, does QOt make a man a Juftice of 
 
 Peace, 
 
( 49 ) 
 Peace, and more authority or jurifdiction no Secretary 
 ever cl armed. To render him Co, it baa of late been 
 always the practice to inlcit hy name every Privy Coun- 
 fellor int') t e commiffions of the peace, that bom time 
 to time pafs for the feveral counties. So that the two 
 grounds i ft d as an authority for the illuing of thefe 
 rani i namely, the conftant exercife and 
 ufage oi them, and the antiquity of the Secretary of State 
 as a t'rivy Counfellor, both f. il. But, had they both 
 been g >od, they would not have authorized thefe war- 
 ranis j b caufe, a practice of the like fort, m>:{t be fup- 
 ported by uniform ulagc ; and the warrants produced, 
 differed lb much in their form, that hardly any three of 
 them were exactly alike. The grcateft part too of the 
 wan ants offered in proof of this cuftom and pretended 
 right, were ; (Tued in the limes of rebellion ; when men are 
 not likJy to call in qucflion fuch a proceeding, the extre- 
 mity of the cafe m.nkiqg them wink at all irregularities, 
 for the fake of fupporting the proteftant eftablifhment 
 itfelf. And yen, bad men, as one may eafily figure to one's 
 felf, will be apt to lay ftrefs upon fuch acts of neceflity, 
 as preced nts for their doing the like in ordinary cafes, 
 and to gratity perfonal pique, and therefore fuch excellcs 
 of r. .e are dangerous in example, and fhould never be 
 excuie H n it appears that government could not 
 
 bf. def< ided or upheld without actual recourfe to them. 
 But, even if the ufage bad been both immemorial and 
 uniform, and ten thoufand fimilar warrants could have 
 been produced, it wo dd not have been fufficient ; be- 
 Caufe, the practice muft likewife be agreeable to the prin- 
 ciples of law, in order to be; good, whereas, this is a 
 practice inconliftent with, and in direct oppofnion to, the 
 fir ft and cleared principles of law. Immemorial uniform 
 ufage will not even luj-port the bye-law of a coiporation, 
 if it be flatly repugnant to the fundamentals of the com- 
 mon law ; much lei's-, will it authorife the fecret practice 
 of a political office. In one word, no warrant whatever, 
 in any caie or crime whaiever, that names ordefcribes no- 
 bod) in certaiu is good, or can be juftificd in law, in any 
 circumftances whatever. Therefore, if that point alone 
 had been p~t in queilion, 1 do not fee how any " thinking 
 '* and honeft man could have fairly voted againft it." 
 The law is too well cftabiifhed to be rendered doubtful, 
 by all the dexterity of the Attorney or his Coadjutor. 
 
 "Eight 
 
5° ) 
 
 I jht v.Mrs of ingenious judicature will fcarcely accom- 
 . raflc. 
 Attorney n hi well fay, that Lord H. when 
 ufing the power of a Juftice of the Peace by virtue of his 
 off yetary o: State, could make an illegal war- 
 
 rant as a M giftrate, military office r, by flyling 
 
 hin ! of bis Forces, and 
 
 v amandine v officers to aJH/i ■ oc- 
 
 circumi: . ' :ouf1y of 
 
 opinion, is as g< imcnt in law, as what can be 
 
 from the ul 
 
 r, it is not true, even in a political fenfe, that 
 a declaration of the illegality of all General Warrants what- 
 ever would w - from the executive pow?' - , an 
 " authority which may be frequently found eflentia) to 
 
 e very being of the Si . For, if in cafe of H 
 Trcafon (the only crime that need ever occafion a fin :ch 
 of authority. .1 'I"h:t very rarely) there fhould be 
 
 a neccllity for the apprehcnlion of people, whole nc; 
 or any certain defignation of their perfons, could not bo 
 had, and this was made afterwards to appear ; as That is 
 a crime which tends to the ciiliMuiin of the whole frame 
 of government, there is no doubt but the miniftcr would 
 be excufcd for the dictatorial power he fhould excrcile, 
 pro falute Rcipullica:, upon fuch an emergency. 13 ut I 
 would have fuch things as emergent neceifities applied to 
 his pardon, and not to his justification. 
 
 Therefore, I fee no reafon why a man fliould not vote 
 for the condemnation of General Warrants in all ca , 
 without limiting his damnation to General Warrants in 
 the cafe of feditious libels. " The prop li:i ns are dif- 
 ferent,'' but in the eve of the law, thefe General Warrants 
 arc in both cafes equally illegal. In fhort, if this was noc 
 the conftitution, I think " we might amufc the public 
 with the found of liberty," but fliould really enjoy none. 
 If fuch warrants were to be al! ally iuiliriablc in 
 
 any inflances, it would be exceedingly difficult, nay, im- 
 poflible, to reftrain Miniflers from gricvoufly oppreffing 
 any man they did not like, undei many pretences, fi 
 time to time, for their own fafety, without any motiv 1 t 
 public good. I agree, therefore, with the Attorney, i'i 
 
 : .1 tk if the liberty of the fuhject be the great 
 lk u: .v.t 1.) view, and be incomjatibL- with ( 
 
( 5' ) 
 •• Warrants in one inftance, it is inconfiflcnf with flu- lame 
 M warrants in any Other. There is no cx< • be 
 
 " made to our general reafonii The grievance ex- 
 
 tends to all perfons, of all degrees, of all qualities ; it i3 
 commune pet iculum. 
 
 As to the fuggeftion that experience han proved " there 
 " is only a poflibility of danger to the liberty of" the fub- 
 ** jeet:, from the exercile of this power," it is a mod 
 flippcry argument, and of no real weight whatever. 
 
 For, in the full place, thefe warrants have been rarely 
 excrcifed, until of late years, and perhaps never before, 
 in the cafe of a libel, upon one of the Reprefentatives of 
 the people. Every thing of this fort is pradtifed with fome 
 tendernefs at hrft. Tyranny grows bv degrees. Befides, 
 tew common men have private purfes fufricient to contend 
 with That of the Public and the power of the crown, both 
 of which are ufed by every miniftcr, to the utmolt extent, 
 upon fuch occafions. Sometimes too, the private profc- 
 cutor is bought off. 
 
 In the next place, if the experience of thefe warrants 
 had been fo great, and no mifebief to the fubiect had hi- 
 therto enfued ; yet, who, in a very momentous concern, 
 no lei's than the libertv of every man in England, would 
 let even a poflibility of abule remain, that was able to get 
 rid of it. It is not within the power of any legislature to 
 prevent every private man or minilter from committing 
 abufes by an infraction of the law ; but, I think, no wife 
 legiflature would give fuch a fan£f.ion to any bad or arbi- 
 trary ufage, as would afford a handle to all minifters to be 
 guilty of the greateft abufes, impunedly, and under the 
 colour of law. 
 
 Upon a fuppofition that the foregoing arguments will not 
 do, the Attorney clofes his ratiocination on this point, 
 with faying, that " the Court of King's Bench had ad. 
 " mitted perfons to bail, apprehended under fuch war- 
 " rants, inftead of giving them their full difcharge, and 
 *' that this circumftance is of fo much importance to the 
 " queftion, of the legality of the warrants, that in the 
 " opinion of an old experienced and able Lawyer upon 
 *' the occafion, who will ever be efteemed an honour to 
 " his profeflion, it implies no lefa than an imputation of 
 " perjury, to fuppofe fuch practice to have prevailed in 
 
 "the 
 
( '- ) 
 
 " the Court of King's Bench, unlefa the legality of the 
 
 •* warrants ha 1 been at the fame time I by 
 
 * 4 that Court." Now, who this old Lawyer i , I devil 
 
 know, nor the date or the frierulfhip between him and the 
 Attorney. But, ii 1 were to guefs, it mud be Ionic anttquate 1 
 Tory, who til! lately waa m uniformly againft, as he now is 
 uniformly for, all meafurea, and who onlv comes out up- 
 on extraordinary occafions, with a , to do ex- 
 traordinary work. One of your (launch nun, that goes 
 plump through thick and thin, and to advance fuch doc- 
 trine, muir, 1 think, have gone through the thicker! of 
 it, and confequcntly appear in a very dirty light to all 
 Other Lawyers upon his emerging. J dare fay, 20 years 
 ago, the fame man would have vouched as ftrongly to the 
 cure of the King's Evil by the touch of the true royal 
 line. In my confeience, he could find no one Lawyer 
 befides to countenance him in fuch docaiinc ; or if he did, 
 it mull be fome old gentleman of the fame Tory kidncv. 
 Now, the Tory- principles arc fuch, that I fhould have 
 been much better fatisfied of the truth of this dogma, had 
 the Attorney himfclf diredlly affirmed, upon the credit of 
 his own character as a Lawyer, that an admiffion to bail 
 under a General Warrant, proves either the warrant to be 
 
 1, or the Judge to be perjured. But, it is very fingu- 
 lai that the Attorney will not affirm any thing of himfelf 
 in this matter, any more than he diJ upon the article of 
 ufage, butchufes to flip in the aflcrtion of fome anticr.t 
 invalid, or miles emeritus , for the purpofe, whom he puts 
 in the front of the battle ; and then, if he can but pick 
 i p foaoe other fuperannuating Hager, of the like original 
 concoction, he will, of the two, form a mod excellent 
 forlorn hope. Kv the bye, if any veteran Black Letter 
 could be brought up to fuch an affirmation, m a grave 
 and ferious manner, as omit , I fhould think, un- 
 
 der any other than the prefent Whig adminifrration, his 
 merit would 1 fo tranlcendcnt, that he might cxpcdl 
 il,e Miniflcr's intcrcfr. for a peerage for himfelf, or o- 
 Otherwife, for his fon, as he fhould like bell. At this time, 
 however, I fhould imagine, he would only find he had 
 
 . utelv thrown aw ' r to no purpofe at 
 
 .. . ()!,i I! 
 
 • 
 
 take 
 
( 53 ) 
 
 tikfl thafj vou may be furc of his going over every thing 
 elfe with 
 
 Alter all, let mc afk, Docs the Court of Kings-Bench, 
 or any other court, when a man is brought before them, 
 examine into the warrant, unlcfs the pcrfon apprehend- 
 ed makes an objection thereto? Nay, is not the very con- 
 traiy every day's expci iencc ? Is it not even the defire of 
 the party taken up, nine times in ten, to be bailed ; as 
 he knows, upon his discharge from that arreft, another 
 warrant in a regular form would be immediately iflucd ? 
 Would it be right therefore in a Judge to fcrutinizc the 
 validity of every capias? In truth, bailing is a matter of 
 courfe, where no objection is taken, and there is no pre- 
 tence for faying this act of courfe is an acknowledgement 
 by the Court of the validity of the warrant, or of the le- 
 gularjty of the arreft. Every apprchcnfion is fuppofed to 
 be legally made. A man might as well fuggeft, that 
 the Chancellor reads every writ he figns, before it is 
 iflued, to fee whether it be clerically drawn ; or that a 
 Judge never tries a caufc at ni/i prius, until he has examined 
 the whole of the procefs, and feen all to be regular. Now, 
 I will venture to affirm that Judges never examine the pro- 
 cefs at all, unlefs one of the parties move the Court fpeci- 
 ally for the purpofe. Confenfus tollit errortm. And, no 
 man ever fuggeltcd that they btoke their oaths by not do- 
 ting this ex officio ; indeed, if the extravagant dodtrinc here 
 advanced were true, not one of the prefent reverend bench 
 could now be free from perjury. In fhort, fuch a fpecch, 
 if it were made, is a proof of nothing, but the fliamelcis 
 length to which party is capable of carrying a Tory : 
 for, no lawyer ever pra'ciifed in a court of law, efpe- 
 cially at the head of a great circuit, that did not in his 
 own practice, meet with a multitude of iterances which 
 flatly contradict this violent pofition. Every common 
 lawyer of a year's Handing can vouch the contrary. 
 Nay, were it not fo, the Attorney knows it to be a 
 maxim among lawyers, that, " what is done without dc- 
 " bate, or any argument or confederation had of it, ma . 
 M the authority of a precedent to be of no force in point 
 "oflaw: for, judgments and awards, given, upondelibe- 
 " ration and debate, only are proofs and arguments of 
 " weight; <^nd not any hidden act of the court without 
 '« debate or deliberation! 
 
 H The 
 
( $4 ) 
 
 Thr 
 a !\' upon tii. >l I libel 
 
 only, , ,. 
 
 '• : - ration, bj tl 
 
 , I 
 
 it an undoubted 
 . and, it i know the Attorney aright, !. . > de- 
 
 bate up n a I ■ 'or th.\r real n Would throw every 
 
 ance into a cafe, I 
 
 who think it bri! rgue 
 
 on the- general prin iple. Pi :.^crr 
 
 (., 1 can frame t«> my (el I no circumftai 
 
 ; to the terror of luch a fcene, whihr 
 
 lews exift, urdeni it he a rcprefentation of the whole 
 
 rranfa&ed, and by , at midnight. I 
 
 chuff, however, not to dn 
 
 t (h>rv, and, as mv Ion in hi ileal 
 
 , f 
 
 iminabte 
 
 ( ..'•,', I think ir, i 
 
 ; \ irfl ends 
 
 -• 
 
 According to mv r ' can convry to th« 
 
 mind of the reader, ;' bich a rfl iccr 
 
 fr m fndi a d:irrcfo. Many gentl cor- 
 
 , which rl ■'.' ir \. ':■ , I l ir ic- 
 
 . and their b me 
 
 piivate papers, that 1 on ai unt have 
 
 \ I lc- 
 
 CUTI1 ■ • his cor- 
 
 • tor- 
 fore, than t< ; , luch U 
 Mot ' them, ei 
 
 ■• away hi es, with 
 
 -11 his papei • law, ht- 
 
 had, i . i ii 
 
 s author, prii of lome 
 
 . had t> Id one of 
 ■ 
 
 U h euii- 
 
 I 
 
 .:• tO 
 
 fuch 
 
( 55 ) 
 uch an<"J fuch a parti alai tbingi naturally amufe them- 
 elves with tht ■ jv i ui.il of ail private letters* menu 
 ecrets and intrigues, "i the gentleman himfelf, and of all 
 his friends and acquaintance of both fexet. In the hurry 
 too of fuch bufinefs, notes, bonds, or even deeds, and 
 evidence of the utmoft confcqurncc to priva'c property, 
 may be divulged, loll, torn or deitroyed, to his irreparable 
 injury. 
 
 I will now, for a moment, fuppofe that this grr.tlc- 
 man had actually wrote, in the hours of his wantonoefi or 
 folly, fomething that was really ab five and fcandab 
 upon fome particular miniiur, or upon the adminiitr.;; 
 in general. Even in fuch a cafe, would any gentleman 
 in this kingdom reft one minute at eafe in his bed, if he 
 thought, that for every loole and unguarded, or fuppofed 
 libellous expreifion, about party-m r.tcrs, he was liable 
 not only ro be taken up himfeif, but every lecret of his 
 family made fubjeci to the infpeclion of a whole Secre- 
 tary of State's Oince, or indeed, of any man or minifter 
 whatever, whilfi a parliament was fitting, or nad even an 
 cxiltence in the country ? 
 
 Such a vexatious authority in the crown, is inconnilcnt 
 with every idea of libeitv. It (corns to me to be the 
 higheft of libels upon the conftitution, to pretend, that anv 
 ufage can juitifv fuch an acl of arbitrary government. The 
 laws of England, are fe> tender to every man accufed, 
 even of capital crimes, that they do not permit him to be 
 put to torture to extort a confeffion, nor oblige him to 
 anfwer a question that will tend to accufc himfelf. How 
 then can it be fuppofed, that the law will intruft a:iy of- 
 ficer of the crown, with the power of charging any man 
 m the Kingdom (or, indeed, every man by poilibility and 
 nobody in particular) at his will and pleafuie, with be- 
 ing the author, printer or publihVr of fuch a paper, be; ~ i 
 libel, and which till a jury has determined to be fo, is 
 nothing; and that upon this charge, any common fellows 
 
 ! r a general warrant, upon their ovv.i im iginations, or 
 iurmifes of tbeir acquaint, nee, or upon other v.or'c 
 
 I more dangerous intimations, may, with a nd, 
 
 fuze and carry oft" all his papers; and then at his t: 
 duce thefe papers, thus taken by force from him, in i - 
 denre againft himfelf; and all this on th h fa mere 
 
 [demeanor, in a country of liberty and propa .. 
 
 H 2 woul I 
 
(56 ) 
 would he making I man give evidence againft and 
 himl'clf, with . ce. And this Ls to be endured, be- 
 
 thc profi >>.hc-r fufficient proof, and 
 
 might be tradw ndlefly, .'J not 
 
 get it ; and becaufe be docs it 1 1 u I •, lor the lake of . 
 
 I fhoiill ii thave given myfell the trouble of faying thus 
 
 ir.uch in fo plain a iad it not >'< ;i for a letter 
 
 which was printed fome time ago, upon thi i fub e&, with 
 the names of two noble lords, fecretariei ol (rate, fub- 
 !. It is directed "to Mr. Wi)k< d tl Great 
 
 '.'. y the 7 th, 1763," and containa the 
 following cxpreflions : 
 
 « S I R, 
 
 " In anfwer to your letter of yefterday, we acquaint 
 <l you, that your papets were feized in confequence of the 
 tk heavy ch.ir;rc brought againft you, for bung the au- 
 " thor ofan infamous and feditious libel, for which, not- 
 M wi-hftanding your difcharge from your commitment to 
 <; the Tower, his Majefry has ordered you to be pro- 
 " fecuted, by his Attorney-general. Such of your papers 
 " as do not bad to a proof of your guilt, (hall be teftored 
 " to you : Such as are neccflaiy for that purpofe, it was 
 " our duty to deliver over to thofc, whole office it is to 
 " colt , and manage the profecution againft 
 
 )U. We arc 
 
 " Your humble Servants, 
 
 m6nt. 
 " Punk Halifax.' 
 
 now 1 1 clear avowal of the prim 
 thefe papers. I' evidence indeed, I have been 
 
 h as much force, and I believe with as little 
 
 ••.•, a fome other collections are 1 which 
 
 the collector- arc hanged wh I < ann 
 
 therefore, I am very glad this letter hs publifhed, 
 
 V in thole 
 political offices that arc now sttemj I 
 
 to be the ancient common I 
 
( 57 ) 
 
 One Inftancc of the legislature' to the pi 
 
 of papers ami eorrefpondence, may be (ten in tlic act re- 
 gulating the poll -office, whereby, every pon>mafter and 
 clerk, is forbid to open any letter, upon any pretence what- 
 ever, except, by warrant of one of the principal Secretarial 
 of State -, who, if the mere opening tbould afterwards be 
 qucftioned, is thereby rendered under his hand reponfible 
 for the lame. 
 
 W hen the 1). of Newcaftle was miniftcr, under a ge- 
 neral fweeping warrant, the meflengers feized fome cop- 
 per-plates of the late Rebel's victories, whereupon the 
 owner commence.1 an action ; fhortly after which, .Mr. P. 
 his attorney, was called upon by a certain noted folicitor, 
 who told him, that the Government would not return the 
 plates, but would, however, make fatisfaclion for them. 
 JVlr. P. faid, that he would not diiTuadc his client from 
 making up the matter, but, that as the feizure was wholly 
 unwarrantable, he mud be handfomely repaired in da- 
 mages, and therefore he would not advife him to take 
 lefs than 200I. upon fuch an cccafion. The noted Soli- 
 citor agreed to, and paid the fum demanded, upon having 
 a releafe of the action ; altho' it was very clear, the real 
 injury did not amount to 50I. Thus dropped and expired 
 this action, as has been the cafe with many others be- 
 fore and fincc. In fhort, one way or other, the proceed- 
 ings in theie matters never come before the Public. The 
 Parties are either too indigent to contend with the crown, 
 or elfe the Crown buys them oft". Attornies too, for the 
 mod part, are afraid both of incenfing men in power and 
 of lofing their cods, by being concerned for poor and ob- 
 noxious clients, who may either run away, or be tampered 
 with by the Solicitor for the Treafury. For which reafons, 
 it is extremely difficult to cite adjudged cafes, in fuch 
 very clear points: and, therefore, one mud decide upon 
 them by general maxims and principles of common law, 
 which are, indeed, a much more unerring guide than any 
 particular cafe, of which it is ten to one whether you can 
 Obtain any correct: and authentic repur. 
 
 If fuch a power of feizing papers could be fupnorted 
 by law, is it to be imagined, that no declaration of it 
 fhould have been made from the Bench, by the fevcral 
 able and learned Chief Juftices of England, who have pre- 
 iided in the King's Courts liucc this practice has taken 
 
 place ? 
 
C y 
 
 I my of then b* vt been warm friends of a 
 tn, ami they could not bave re minifter in 
 
 form:.' v in times of violent party and dif- 
 
 : mean whatevi r. N iy, 
 the ni have bad opportunity i of i 
 
 i * hat e H idioufl* : 
 
 canoe affigned, but theii knowing tl be il- 
 
 A lit i). I can hardly be pro- 
 
 din i 
 
 N i hmg, as I apprehend, can ' from 
 
 any mar:, or bia boufe enl 
 i upon oath* The manfionof every tnai 
 
 ral (earch warrant is good. It n 
 
 be (wom that ! have certain ftolcn goods, 01 fi cb a par- 
 ticular thing that is criminal in itfelf, in n .■, be- 
 fore any magiftrate is authorized to grant a\i :oany 
 man to enter my boufe and feise it. Nay further, if a 
 pohtive rath be made, and fuch a particular warrant be 
 ttTued, it can only be executed upon the paper or 
 fworn to and fpecifi ! , I in the prefence oi the owner, 
 or of fomebody in:. him, with the cuftodv 
 Without thefe limitations, there is no l.bcrty or free cn- 
 .,: o( p rfon or property, but every pa t of a 
 
 . ons and privacies, is liable to the ra- 
 vage, inroad ami inlpcclion of fufpicious minirters, who 
 mav at any tin , intuit and expofc, and, perhaps, 
 
 i they lufpect there is evidence 
 
 a rainfl tb< - . thev may, by this boundlefs authori- 
 
 ty, feize and c.rry it away, in order to defeat pro- 
 fee ution. 
 
 In mifJcmes ction, 
 
 the p 
 
 bo magistrate h the whole, nor to 
 
 tout:; any particular part, without fomc I 
 
 information <>n oath as to individual things. And upo;. 
 I I 
 
 am t' 
 
 ; . ( theft rules, as to warrants 
 
 oath, i • ' of a iduny 
 
 " CO, 
 
 (hew hia . - 
 
 - there- 
 
( 59 ) 
 <l therefore a general warrant to feavch all fufpee'red 
 " places is not good ; nor arc general warrants dormant, 
 " justifiable, nor do they give any more power to the 
 " officer or p arty, than what he had without thcra. 
 *' (2.) It i. ft toexprefs that fcarch he made in the day- 
 " tunc. (3.) They Should be dirciS^cd to conftablcs and 
 cl not to private perlon:-, tho' the perfon complaining 
 <l fhould be prefent, becaufe he knows his goods. (4.) It 
 " ought to command that the goods found, together with 
 " the party in whofc cuflody they are found, be brought 
 M before fome fuftice of the peace." 
 
 The firft warrant that ever was granted for feizing 
 papers generallv, was, by Lord Townfhend, in the reign 
 of George the Firft ; until that time, no Secretary of ftate 
 ever wont farther than to direct the Seizure of fome papers 
 particularized. 
 
 In fuch a party-crime, as a public libel, who can en- 
 dure this aflumrd authority of taking all papers indifcri- 
 minately ? When, in fuch a crime as forgery, or any 
 other felony ; or even in that dangerous crime, high trca- 
 fon, by correfpondence with traitors or the king's ene- 
 mies, all men would cry out againfr. it, and moft de- 
 fervedly ! Nothing can be touched, without fome crimi- 
 nal charge in law fpecifically fworn againftit. And where 
 there is even a charge againfi one particular paper, to 
 feize «//, of every kind, is extravagant, unreasonable and 
 inquifito.ial. It is infamous in theory, and downright 
 tyranny and defpotifm in practice. We can have no po- 
 sitive liberty or privacy, but mud enjoy our correipon- 
 dc.icies, friendfhips, papers and ftudies at discretion, that 
 is at the will and pleafure of the miniilcrs fur the time be- 
 ing, and of their inferior agents ! 
 
 Had Charles the fecond thought his miniflcrs intitlcd 
 to this prerogative, he would not have retorted to par- 
 liament for fweeping warrant-, to fearch for and I'd/,? 
 all feditious and trcafonable books and pamphlets. 1/ i 
 mtSTengcr of the prefs would have ranged through the 
 Shops of bookfcllcrs and printers, and the ftudies of dif- 
 affccV.I perfohs, that is, of fticklers for liberty, upon the 
 mere warrant of 1 Secretary of State or privy counfcllor, 
 without the aid of a licenirag ftatute. 
 
 And let me here afk a quefh'on. If a libel be no r.i>ual 
 breach of the peace, and Sureties for the peace or the 
 
 be- 
 
( I 
 
 II be not dem&i ; the fti; 
 
 vh.it colour ol law, or by what wan.. 
 aiiv m;i:i, cfea he writer 01 p blifher, h >b*t 
 
 locks broken open, foi the ippreh nfioa i ith< i 
 himicli 01 hi I :i fuch ' uthorized by 
 
 virtue of any l< er, in th i 
 
 i. :, nay b< meni * ? 
 
 lid l.ivvyi : ! 
 
 ng " no 
 
 vim (land without fuch i ■. .." But tbe fpeech 
 
 a trimming niatlj is not, 1 hoj 
 
 be counted lor gofpe). And, I am clear, that many 
 
 riout governments have ftood without it, and that no 
 
 .migration or government ought to (rand, that wants 
 
 it. However, it is cafy to forctel that fo flattering a fub- 
 
 fcriber to any political tenet?, cannot long himfclf" with- 
 
 frand any thing. He would be able, 1 fhould think, if 
 
 occafion prefentcd, to throw him fit at the feet of any 
 
 Majefty, with as much ailed ion and ardency, as the molt 
 
 * In ■ printed ica WW of the tranfadtSon ct Mr. Wilkes's cafe, it U flatert 
 tin;: | • n ■ ' 1 againfl the Au- 
 
 ;t) Pcrfons « nded 
 
 b\ it before the 79th, .ind amonp them a reputable tradefman. This lare 
 
 ' ken out of bed from his wife a.id a child dangcroufly ill, his houfe 
 
 lend and Li r . pap. is ranfacked, and his perfon detained three days 
 
 his innocence kn m . rhe Secretaries of State received complete 
 
 v\ ;lkcs was the author and puMithev; arid the penc- 
 
 ral warrant .'lill remaining in the mefiengen hands, by virtue tl 
 
 houfe was forcibly entered, his doors and locks broken 
 wn into ■ fai k and committed to the hands of corn- 
 it any fchedule or fecority t^r the return of d 
 Mr. Wilki Lord H. where it waa tmmedi 
 
 known, thai i mo - 
 
 m<m, but, to aveid ih<- <tlct of that writ, he via hon tl.c 
 
 all ji c is was denied to him, as w II .s the ule it pen, 
 ink ..nd paper.' ' A:id I will aJd, from my own . that thole who 
 
 itei rsof ion.,- private l< tl 
 
 I them, and have hint 
 (hip withotb 
 I- . lu< ken aflerted that, in (earch of Monficur D'Fon, I. 
 , i kc and bring him into the King'i Bench 
 
 he doon and locks of iliam! 
 
 t waa ' 1 it 
 
 after • 
 
 from 'lie K. R. but without urtion upon oath of his 
 
 I be 
 j upon hit fa rin| been fan about tw< >ing 
 
 to till i. 
 
 pro- 
 
( Ci ) 
 
 proftrate or adulatory ol ninifters. An outward de» 
 
 ctncy and deliberation) iji ei , will enable i man, 
 
 at lair, to ferve the more < iV< £Hi illy, and even to impofe 
 a wrong fenfe upon the old revolution motto, of Prodejfe 
 quam confpici. And yet there is, after all, fuch a thil 
 outwitting one's felf, and being the dupe of one's own 
 cunning, after having made this left-handed wifdom the 
 ftudy of one's life from the tendered infancy. 
 
 The Attorney having (lightly paffd over the feizurc of 
 papers, after talking of it as a mere picture for which he 
 happened to have no taftc, intirefy omits the fubfequcnt 
 grievance of the clofe confinement ; and, my fon having 
 fomewhat touched that matter in his letter, I fhall not 
 expatiate upon the fuhjjer, (o much, at leaft, as the im- 
 portance of it would otherwife have inclined me to. Any 
 body, however, who looks at the warrant of commitment, 
 will fee the direction to the conftahle of the Tower, is 
 not merely to keep Mr. Wilkes fafe, but " to keep him 
 " fafe and clofe, until he (hall be delivered by due courfe 
 "of law." Now, the cuftody here directed, is unwar- 
 rantable by law, in the cafe of a mifdemeanor, nay, in 
 any cafe. 
 
 The common commitments ufed by Juftices of the 
 peace, even in cafes of robbery on the highway, and other 
 felonies, not entitled to clergy, are to receive into your 
 pari, and him fat elf to keep, or that you fafcly keep, or there 
 to remain [until delivered by law) ; falvo cujiodiri, ad falvo 
 n'Jlodiendum, falvo cu/lodias, in fa ha cujlodia ut dctineatur y 
 or at molt falvo & fecure cujhdiri ; infomuch, that out of 
 all the various forms of mittimus's to be met with in 
 Burns "Jujlice, or the Regijlrum Brcvium, there is not 
 one where the word clofe, or arcla, is inferted. 
 
 When a gaoler is to keep his prifoner fafe, he is only 
 to reftrain him fo as to prevent his efcape, and no perfun 
 not dangerous, in that relpc£t, is to be hindered from 
 having accefs to him, in the day-time. But, when the: 
 order is to keep the prifoner fate and clofe., the gaoler is 
 to (hut him up from all the world. By a printed paper 
 too, handed about, { learn that the wardens of the Tower, 
 in this laft cafe, are never to leave their prifoner one mo- 
 ment alone. And, in a paper which Mr. Wilkes dif- 
 perfed, he aflerted that thefe orders were itrictly obferved 
 with refpec't to him, infomuch, that altho' he was com- 
 
 1 mitud 
 
( Si ) 
 Saturday the 301b of April, yet it was Todtrat 
 the 3d, after bavins been brought up by Uabcai 
 Corpus to the Court of Common Picas, and remanded, 
 Is bad, for the firll time, free accefs to him. 
 His Council and Attorney hail made repeated applications 
 for adniiflii'ii on Saturday, Sunday, and Monday, us well as 
 his bt other, a noble Karl, and lev oral people of diftinclioni 
 and on the Monday, he happened to fee hitnfelfa written 
 Older upon Major Ransford's tabic, directing him even to 
 take down the names of .ill perfbna applying for admittance. 
 The common report about town was, that the Secretary 
 of flatc went to his country-houfc on the Saturday morn- 
 ing, and did not return till Tucfday noon, and therefore 
 no order for the admiflion of any pcrfon could be had, and 
 that the Major would not break through his general orders 
 about clofc piifoncrs at the defire of the folicitor of the trea- 
 sury : but, this could never be the rcafbn, as it was very 
 eafy to have fent a mefiengcr jo or 12 miles out of town, 
 to the fecretary's villa, when the prifoner was a Member 
 of Pailiament, and the public begun to be alarmed. 
 
 I am more inclined to believe another report, namely, 
 that the Major received, particular, pofitive, verbal orders 
 at firft, to let nobody have accefs to him, and that he dc- 
 dared,had it not been forThole, he fhould not have fcrupled 
 to have let in any of Mr. Wilkes's friends or relations, not- 
 withstanding the word clofc was infertcd in the warrant. 
 In fhort, it was a mifconception of the lawful power. 
 The great civil officers imagined there was no difference 
 at all made by the law between the treatment of a prifoner 
 committed for a mifdemeanor, and of one for a capital 
 crime, or before or after conviction. 
 
 Now, my opinion is, that before conviction the law 
 
 not warrant clofe confinement, fo as to debar a 
 
 friend from accefs, in any cafe whatever; and that the 
 
 fame is a br< ach of the great Habeas Corpus law, and of 
 
 all th( tC3 di Homing iep!,giando. For, if a man, 
 
 when apprehended and carried before a magiftratc, is, by 
 
 that magiftratc committed forthwith to dole cuftody, la 
 
 11 ibody can get at him, it will be impoffible for him 
 
 to write a letter, or to make an affidavit to get a Habeaj 
 
 Corpu . I:. leed, it feenis to me to be an ablblutc depri- 
 
 .1 of the right that every luhjcet has to his liberty, 
 
 " unltis it fhall appear that the party fo committed, k 
 
( (>i ) 
 
 u detained upon a legal procefs, orJcr, or warrant, out 
 *' of fome court that has a jurifdicli<.n .; criminal i 
 *' tcrs, or by fomc warrant of" Come Judge or [uftii 
 " Peace fur Inch matter or offence for which by law the 
 " prifoncr is not bailable." This ftatute of Clu'rlrs (he 
 2d, takes notice of the *« great delays and other Shifts 
 «■' of gaolers and others, contrary to the known 1. 
 * c whereby many of the King's fubjects, may be !■ 
 •' detained in prifon, in fuch cafes, where by law they 
 li are bailable, to their great charges and vexation," and 
 purports to be cxprcfly enacted, " for the prevention 
 " thereof, and the more fpeedy relief of all perlbns im- 
 " prifoned for any criminal or fuppofed criminal matters." 
 Now, if I do not mifrcmembcr, the live it, embers were 
 committed to clofc confinement, for feditious difcourfes in 
 parliament, by Charles the i ft, and it was the agitation of 
 this very queftion that firit {hook his throne ; and yet, I 
 do not know, that, in the cafe of Mr. Wilkes, it h;:s ever 
 been taken notice of at ail, either in parliament or in any 
 court of Juftice. 
 
 I look upon clofe cuftoJy in fuch an offence as a libel, 
 the leait definable and the moft ambiguous of ail misde- 
 meanors, and by conftruction only a breach of the peace, 
 to be not only abfolutely illegal, but extreme cruelty in 
 itfelf, and, with refpect to the constitution, the moft iaw- 
 iefs tyranny that can be exerted by any minifter, and fuch 
 as ought to make every gentleman ftartle, when he thinks 
 of it only. 
 
 It is not the corporal injury that con flit utes, in the 
 eyes of mankind, the dreadfulnefs of the example. It is 
 the force exerted and continued againft law. 
 
 When I fee a fecretary of ftate, obftinately fighting 
 with the laws of his country, ufing privilege to the utmoft, 
 notwithftanding it was the ground of the royal complaint 
 to the Commons againft Mr. Wilkes, availing himfclf of 
 every practicable effoign, and, at length, withftanding 
 all the procefs and penalties of a court of Juftice, to a- 
 void trying the right of a tranfaction, which has never 
 yet been directly given up; and perhaps waiting for an 
 outlawry of his profecutor, in order then to mock the 
 juftice of his country (till more, by entering an appear- 
 ance to the fuit againft him, at a time, when his proie- 
 cutor can no longer go on with it: I protef^ altho' an 
 
 I 2 
 
( ft 
 
 ^cr, private indivi I I lofe mv temper, look 
 
 If in- 
 . to join i:i an to the < of 3 
 
 the cum: i, . i with the prol 
 
 t ".'i it that e iuf< . wl ich i man is intei 
 
 and which the ordinary couri ti< e have been fo loin; 
 
 in. I r. i . I | :-.;. it 
 
 ; what he ma 
 . what the . and what, 
 
 according to him, creates a diflblution ot all govern- 
 ment. 
 
 V\ o, under fuch circumftances, would blame a Jury, 
 fhould they at [aft hare Inch a (ecretary brought before 
 them, tor giving extraordinary, exemplary damai 
 
 Efpecially, if they ihoulJ have all imaginable 
 ..tion for believing the judgment, upon fuch verdict, 
 will be delayed by every artifice of bills of exceptions, 
 fpecial verdicts, motions for new trial, writs of error, c5\\ 
 that can be p raft i fed, in order to prevent all effect from it, 
 and to overbear, in the long run, the poor profecutor by 
 dint of expence. 
 
 If mankind is to be enrag'd, I really think, this is the 
 
 I ft way to 
 If a qucltionable adt has been done by the great officers 
 of a ftate in any jull government, and when taken notice 
 of, they avoid a decifion of the eii.iKifhcd courts of law, I 
 Will fay they dif-ferve the Crown by fuch c* | who 
 
 \ . Ivife it. It is unbecoming men who pretend to an 
 honourable repute or ajuftifiable behaviour, and incredible 
 where an adminiftration means only to ulc legai 
 I .• what they arc. 
 
 ury will it damages where a minifterpl 
 
 law for his and read. irt of law 
 
 for it> opinion, in order to (hew the truth « ; 
 But where he IQufHes and iuts, flics to privilege and chi- 
 md avoid-, a couri ol la > 
 
 : D, but 
 
 will raife th< r< I . in I (hould th 
 
 lim, nobody will think it 
 < m ti pie to all mturc 
 
 mini!. 
 
 he 1 
 
 ! tin's 
 
( H ) 
 
 country, hold thc'r crown by no other tenure, nnd are 
 fworti ind bound 1 by law, at the peril of that very 
 
 crown itlili ! Our oonftitul ..ii! 
 
 or pleafure in any man. The law i <• <,f 
 
 That law is known and fettled, on the lirm 
 bafts of immemorial ufagc, innumerable prcccd nts throi; | 
 a fucceffioa of ages, ami upon the ftatutea of Icings, lords, 
 and commons. And, it is this circumlhnce which makes 
 the fecurity, the independence, and the pre-eminent feli- 
 city of Engiimmen. What a comfort i^ it to every man, 
 who either iaifes or inherits a fortune, to hold That and 
 his liberty, by the fame and as good a title as his King holds 
 his crown ? Who, therefore, can fink fb low as to fubmit to 
 enjoy, all th it he has, by the mere grace and favour of a 
 man like bimfelf, in (lead of holding it independ i\i of every 
 tiling upon earth, but the known and necefiary laws of 
 ibcietv. 
 
 It would, in mv poor opinion, be of infinite ufe to voung 
 mc;] of fortune, beginning the great world, who may 
 hereafter be miniftcrs of ftate, to read attentively the firit 
 15 years ,of the reign of Charles I. and the lair 16 years 
 before the Revolution, in the original diaries, annals, me- 
 moirs, traces, and in the parliamentary and cotemporary 
 hittories, of thofe days. They would thereby perceive, 
 what mighty ill confequences flow from fmall beginnings 
 and particularly, from right not being to he had for the 
 fubjecl in courts of Juflice. 
 
 The Attorney wonders, what fhould occafion any 
 " alarm," and fays, one would think, " that fome inno- 
 " cent man had been oppreUed by arbitrary violence, 
 «* tyranny, and perfecution." To which I fhall only fay, 
 that the legality of the arrdf. itfclf by virtue of fuch a war- 
 rant, and not the innocence of the man arretted, is the 
 1 r in qucftion. 
 
 The Attorney might as well talk of the qualities of the 
 writer's mind, and endeavour to fhew that he was a ludi- 
 crous, extravagant, profligate, debauched and blafphcmous 
 fellow, and wrote an infamous poem, whereby he excited 
 the indignation of a grave and pious nobleman, who, from 
 a motive ol cor.fcience complained of him to the houfe of 
 lords, for di (porting himfelf in the works of Vice; and 
 that therefore, fuch a man might be treated as adminiltra- 
 'i fhould plcafe, without any regard to law or the « 
 
 iiitution, 
 
( «) 
 
 I, and that, inftea 1 of pi itediflfl the rrandrifetflf 
 their countrymen, the parliament ihouM only fettle the 
 
 ti. orals oi individuals, like the Courts Chriffian ot Btfh< 
 
 The Attorney concludes oi) this head with afking, whe- 
 ther all the printers and other '« p.itti 
 ** that they have had ample fatisfaction :" where! 
 directly admits that they had tx , hut then in* 
 
 fmuates, that as money is in his mind the meafure of all 
 things, and an adequate conlidcration either for a broken 
 head or a broken constitution, fo there has been no harm 
 done at all, but what is now complcatly paid for. Let 
 HJC afk, wire thele damages offered or even paid volun- 
 tarily, fo foon as the unlawtulncfsof the net was dilcovcred ? 
 Or, were they extorted, by the verdicTt of a jury, after 
 every mea::j to delay and to defeat the action, to ftagger 
 the Judge who tried the caufc (but who was too firm to 
 be frightened, and too able to be impofed upon) and fi- 
 nally, to fufpend indefinitely the judgment upon .this ver- 
 dict, by 2 bill ot exceptions, had been tried in vain r After 
 all this, were the exceptions tendered with fuch carncft- 
 nefs, and fo much appearance of finccrity, ever argued or 
 deemed capable of fupport in any court of law whatever ? 
 Or, were the perfons, who took them, after thefe rruitlefl 
 attempts to delude mankind, under the facrcd names of 
 law and conftitution, obliged, like convicted jugglers, to 
 give up the game, and, as the laft fhift, to buy off' clan- 
 deltinely the verdicts fo publickly obtained, in hopes, by 
 a private barter of fatisfaction and relcale from low and ig- 
 norant profecutors, to nick an attorney, who had laboured 
 a juir. and a national luit, out of his cofts r [a this, or is it 
 not the Truth ; and is, or is it not, a handfomc come off", or 
 a reputable way of giving up a great caufe, where the 
 Crown has thought proper by its Attorney General 
 to take up the defence ? Sitrm Jupcrbiam qurfitam me- 
 rit: . 
 
 iiut in God's name, what have damages to do with 
 the great point the Attorney is arguing, whether the Com- 
 mons of England fhould or (houTd not come to a ftrong 
 resolution upon fuch an infringement of the conftitution. 
 Mod people are of opinion, when a power, dangerous at 
 
 any time to be cxcrcilcd, i of in an ordinary point 
 
 unneceflarilvi the parliament (hould immediately brand fa 
 violent and uxegulaf a ltrp, and, if the circumflanccs re- 
 quired 
 
( *7 ) 
 quired it, ftigmatize the pcrfnn who took it. The ten 
 the occafion was for this illegal act, the more alarming it 
 is, becaufe it looks as if great men chofe to aft by the 
 authority of the crown, inftcad of adding by that of the 
 law, and the more it had become of late the ufagc to cx- 
 ercife this power, that is, the greater fanction it might 
 feem to have derived from any uninterrupted practice of 
 20 or 30 years, the more neccfiary it might fcem to come 
 to fuch a refolution : efpecially, too, if this power had 
 been evidently abufed, by being exerted in the cafe of a 
 mildemeanor, and even in the moft dubious of all mifde- 
 meanor?, and above all, if it were in a time of the pro- 
 founded tranquility, when all parties were ftriving who 
 fhould be forcmoft in fhewing their fincere attachment to 
 the perfon of their Sovereign. A power notoriously and 
 confefled illegal, feems to need no great examination, but 
 if it did, people without doors are apt to think, that thofe 
 within fhould have given it that examination, and all the 
 •' gravity and deliberation," by going into a Committee, 
 that one of their refolutions might feem to require. It was 
 early in the feffion, when this matter was agitated, fo that 
 there was no want of time, and it was a point that inte- 
 refted peoples attention more than any other. 
 
 If the Refolution were confined to the cafe in queftion, 
 and fo drawn a3 to apply to it exactly, it could neither appear 
 ** inefficient or futile." The conduct of the prefent 
 parliament proves this ; for, it has fhewn th2t it chufes to 
 go fo far as the cafe before it, and no farther. In the 
 matter of privilege recently agitated, the Commons con- 
 fined their Refolution, and the Lords followed them therein, 
 to the fingle cafe of feditious libels. And yet the rumour 
 is, that many members of both Houfes thought it a proper 
 opportunity for coming to a general refolution, taking 
 away privilege from all breaches of peace, whether actual 
 or conftructive, and from all mifdemeanors whatever. 
 This, therefore, is a flat Anfwer to the Attorney, upon 
 the prefent head. However, I muft allow it is reported, 
 feveral great commoners contended warmly that the Re- 
 solution touching warrants fhould have been general, de- 
 claring General Warrants illegal in all cafes whatever. It 
 appears too, that the motion rirft made to the houle was 
 for the warrant itfelf*, which might have been a ground 
 ■ See the printci Votes, 
 
 for 
 
n ) 
 
 for one : I of this kind, and for another of the like 
 
 kind, upon the icizurc of papers ; or, tor | refolution up- 
 on t te particular Warrant only. This motion was rej ted. 
 Then a motion was made for a refolution 7 I ran 
 
 ■ tl e authors, pr inter s y 
 and ; ledittous libel, Vtth tbttf p<:?ers, 
 
 is not WarrOHttd i\ iaiv. The hottfe rCCCtVed it, but by 
 amendments narrowed it (till more, in order to bring it to 
 the iiuliviJu.il warrant that had UTued, and to add thereto 
 relative to the practice of fecfetariea of ftateand courts 
 
 . . aw. At Lift the refolution adopted by the houfc for its 
 qucllion was this, That a general warrant for apprehend- 
 ing and ici/.ing the authors, printers, and publishers, of a 
 tious and treasonable libel, together with their panel , 
 is not wai ranted by law; altho' juch warrant has been iffued 
 according to the ujage of t/fice, and hat been frequently pro- 
 d'.ucd to, and jo far as appears to this Houfc, the validity 
 . of has never ban debated m the court of King's Btnch, 
 but the parties tl ^taVi been frequently bailed by the 
 
 jaidtturt. And, it is laid, the King's attorney and ad- 
 vocate general were the perfons who moved and enrol 
 all thefc narrowing, qualifying! and apologizing amend- 
 ments. 
 
 However, as the prefent parliament has, in thefe two in- 
 flances, fhewn its approbation of coming to refolutions only 
 . i the cale 5 that have actually happened; neither the 
 Attorney nor m\ felf, are at liberty to pain fay it. As they 
 have adopted it, I cannot fufier myfelfto fay, that •« a re- 
 «' iolution upon the journals, confined to the cafe 
 " tioua libels only, left the warrants, in all other cafes, ltill 
 M more confirmed and authorized by that tacit approbation." 
 I do net think fo. And 1 will vent ire to afk him, whether 
 he thinks that the parliament, by declaring no privilege 
 lies in the cafe of that finple mifdemeanor, a libel, has 
 thercbv t icitly approved and confirmed its privilege in all 
 ether no I fhould rather itaion, that when a 
 
 ■ lament condemns any thing in one cafe, it intimates a 
 dil. • every fill I of every the like 
 
 fpccics, altho' not sained exprefly in their rcfolutioo. In- 
 deed, were I c. ; utlemcn, 
 who oppofed the general refolution firft p .'n>ut 
 warrants, and Hated, contended I rried a I 
 
 lutioi ted only ti darcafe, which the Houfe 
 
 there- 
 
( Gy ) 
 thereupon took for its qucftion in the debate, Intel 
 
 thereby a tacit approbation of, and I au- 
 
 thorize the | radice ol ( h neral Warrants in all cafes but 
 tli it, [con ' . i Ihould be more alarm* I than ever. But, 
 I dare fay, the Att >rney here reafons from himfelf,and noc 
 from any Authority of 
 
 But thr Attorney, however, is afraid that the I 
 might differ from the- Commons, cither . i 
 liamenr, or as a court of judicature. This is impoffible 
 in a perfectly clear cafe. Nay, 1 can rid him of fuch 
 fear, by what happened this very feffion. Let him only 
 look back to the proceedings, and he will find that I 
 ptefent parliament took notice of Tht North Briton 
 No. 45, in confequence of the King's nuffage, and upon 
 the mere view of the paper itfelf, without inquiring into 
 the tn.th of any circumftanccs, that the author might I 
 Upon, or the public's opinion of his intent thereby, deter- 
 mined it unanimoufly to be a libel ; and yet, this is not 
 only what great Judges effecm a mere point of law, but 
 what by fome is he'd to be a very difficult point of"! aw. This 
 was done too without any previous communication with the 
 Lords. The Commons even went farther, fur they afterwards 
 called for evidence, in order to find out who was the au- 
 thor ; and it appearing to them, altho' by witneftes not 
 upon oath, that one of their own members was, they 
 * expelled him, after fitting, debating and deliberating on 
 their conduit 'till half an hour after three in the morning. 
 Now, this laft was a facl, which by the confiitution of 
 this country, is to be tried by a Jury. Nay, the Com- 
 mons came to both thefe rclblutions, zvhil/l the fame inci- 
 ter was in a courfe of trial before a Jury in the courts lc- 
 low t where it v/as poffible that it might be differently de- 
 termined. For, nobody can tell what a Jury will do in a li- 
 bel ; and they generally determine both the law and the facl, 
 as it is called * * : but, fupnole them to be fo docile as to 
 
 find 
 
 * Vide the printed Votes of ThwrfJay Jan. 19, 1764. 
 
 lis very thing happened in New York in America, where :! 
 of government is the fame in Eiulind ; the I Af- 
 
 1'cmbly, aniwering to Ring, Lords and Commons Now, in the ^jle of one 
 Zeoger, ,i Printer, the "Council tw their Refolution, declared 
 u publi(hc I by him to be fa '*, 1 .■••■.. m , • 
 
 •* As the Jury upon bis trial were upon - >.:u-ir , . . .1 to 
 
 " deliver their cvn 1 pinio,. . - : 
 
 K . .- 
 
( 70 ) 
 find only that inch a man bad publiffc and to 
 
 : the conitru&ion t > the Court, and that the 
 
 Jud| intrepid i 
 
 II for the refolution ofaHoufe ot" 
 Como i a point of law; it is Purely, very p« -ill - 
 
 bl , that fuch ht have made a different deter- 
 
 jn :. .iic bad done. And then c . 
 
 I il mi l»t i I ried " by appeal to the 
 " Lords, who in their judicial <. .< icitj might think lit to 
 "declare the legality dI" tlie papei in qucftion, "to 
 
 II confirm the practice" of difcuiling without doors the 
 truth ot the fpeech from the throne, ami to affirm the 
 
 the King's Bench. Notwithitanding thcrc- 
 in a v. y of trial below, and not- 
 withitanding the Lords, both a.-> a Houfc of Parliament 
 and a Court of Judicature, might have differed from the 
 Commons, yet they determined both the law and the 
 I....; without being afraid, as the Attorney is for them, 
 tl either that the Courts of law mult be divided and con- 
 " founded in their opinions, or that the dignity of the 
 " Houle ol Commons mull fuffer in the neglect and con- 
 " tempt of their rclolution." They judged, 1 prefumc, 
 that in a cleat matter fuch difference of opinion could not 
 arife, that the paper was clearly a libel, that it was a mat- 
 ter < ial m >ment not to be procraflinatcd, and that 
 therefore, they not only might, but ought to pronounce 
 their opinion upon it. According to the Attorney's doc- 
 trine, a Houfe ol Commons fliould not venture to declare 
 that two and two make four, before a Court of law has 
 them I '. But, in fhort, this has never been their 
 practice. It is not fit they fh uld interfere where the pub- 
 lic is nol refted ; lurt where it is, they arc 
 bound to , in juftice to their reprefentatives, and 
 the) . " done fo. Nay, they have gone further, 
 ana where the ncccllity was gr^at, t'ney have even come to 
 
 a refolution ii .... ... to the judgment of 
 
 a court "i law, and to the :i oi tin out of twelve 
 
 Judges. Where they iufpected any undue influence, ci- 
 
 mcr, by returning a vrrdic'. 
 . ' I : 
 the enmc ilurgrd in 
 i Uutl, which i 
 
 I 
 
 ther 
 
( 7' ) 
 
 tlicr in the exertion or the fupport of the Prerogative, by of- 
 ficers of the crown, or by Judges, they I iter- 
 
 d. Is it poffible to forget, or to control ert, either th 
 conduct, or the propriety of it, in the great cafe of 
 fhip- money, which was firft brought into queftion by Mr. 
 Hampden, a private gentleman, who fo far from regard- 
 ing the trumpery, pettifogging confideration of d 
 declared that he would not pay it, were it but one farthing, 
 if pretended to be demanded of right, and by colour of 
 law, and yet proceeded, according to my Lord Claren- 
 don's own account, with great temper and moderation in 
 that fuit. His Lord (hip adds, and all the world knows, 
 that never any caufc had been debated and argued more fo- 
 lcmnly before the Judges ; who, after Ion ration a- 
 
 mong thcmfelvcs, and being attended with the records, 
 which had been cited on both fides, delivered each man his 
 opinion and ji t, publicly, in court ; and fo largely, 
 
 that but two Ju Iges aigued in a dav. Ten of them lo- 
 lemnly pronounced their opinion for the right claimed by 
 the crown, and which it had regularly exerciled forrour years 
 immediately preceding: but, as Lord Clarendon oblerves, 
 the judgment proved of more credit and advantage to the 
 gentleman condemned, than to the King's fcrvice. How- 
 ever, adds he, thefe " errors in government were not to 
 " be imputed to the court at that time, but to the Ipirit 
 M and over- activity of the lawyers of the privy-coun- 
 " cil, who fhould more carefully have prcferved their 
 " profeffion, and its profeflbrs, from being profaned by 
 " thofe fervices, which have rendered both fo obnoxious 
 " to reproach." In fhort, the Houfe of Commons en- 
 tered into the public grievances, and notwithstanding the 
 right of levying (hip-money was a mere point of law, and 
 there had been the aforcmetioned folemn adjudication by 
 the whole bench of Judges in it, they ordered that the re- 
 cords, inrolments, judgments and proceedings in the Ex- 
 chequer, and all other courts whatfoever concerning (hip- 
 money, fhould be fent for, and warrants figned by the 
 Speaker, directed to the officers of the fcvcral courts for 
 thefe matters were iiTued accordingly. In conleq.jcnce 
 of this, a committe was appointed, and upon the report 
 of that committee, the Commons relolved, •« That the 
 " charge impofed upon the fubje£b, and the aflefimenis 
 '* for that purpofe, commonly called (hip-money, are a- 
 K 2 agai;i(l 
 
( 7* ) 
 I the 1 iwj of the thil ilts, 
 
 il in the 
 
 "tl 
 
 m ittcx i ol Burton, 
 
 v i fen ;ice 
 
 i- a:i 1 iii) . r : 
 
 irn. In ■ fef- 
 
 ►nfi lera- 
 
 " conftituti , treated up>:i by thu / 
 
 of the re 
 tc live i hofc province-, with the re 
 
 " the . ■ and agreed on, with the 
 
 "King's licence, in tluir feveral fynods ;" and 
 
 • That the faid canons and conihtutions do con- 
 41 tain in them m iry to the Kind's pre- 
 
 M rogative, to the fundamental laws an this 
 
 " rcu.m, to the i , to the property ..nd 
 
 «« liberty of • and arc mat^: ol dangerous 
 
 w oonfequence." 'I. 
 
 notice even of the tranf £Uons in another kingdom, and 
 refolved that feveral proceedings by the Lord Lie tenant of 
 unjuft and illegal; and that the Judges there 
 \. rj fit to be queftioned as criminal, tor their extrajudicial 
 pr<K and opinions. From multitudes of inllanccs, 
 
 where the Commoib have come to a refolution with re- 
 ! I ".', I hive nn' thefc few, iii 
 
 orde; t i (hew, that they have dune fo, when the Houfc 
 was filled with g.cat, conftitutional lawyers, where the 
 fame point Lad b v and differently determined by 
 
 a court oi law, . ' y a!l th< ten Oi 
 
 uoiverfal com 1 in particular cafes, and even with 
 
 ■ , in p 'in jIc- 
 
 ind i 
 and • with 
 
 i I, yet 
 
 ir i tlution has 1 > ■ 
 fin-' 
 
 ition ol t: Id be 
 
 ' not, \v; .:n y 
 
 it to the and 
 
 1 never 
 
( 7 
 I never knew a dealer in fuch lort of Ipeech that had a fin- 
 ale gram of true fpirit or bottom, when he came 
 tried. Fhis being ice of thefe guardians of the 
 
 people's ri in former occaHons, makea me more 
 
 curious tha to know, what it was that in.' 
 
 prefei t nent, after inquiry and proof of General 
 
 Warrants being clearly contrary to law, to refrain from 
 e ufage of them. The more efpecially, as 
 it will appear hereafter by the Voles and Journals, that a 
 grofs complaint had been made of the abufe or thefc war- 
 rants, in the cafe of "tic of their own Members, an 
 the debate upon the qucftion ot" their validity, had been 
 the longeft to be met with fincc parliaments have had a 
 being. We who arc living know very well from the Mem- 
 bers ot all parties, that i attempted ro vindicate the 
 :v of thele w. but, our posterity will not 
 have the fame oral ion, and mult natural!' 
 elude, from their, not being declared illegal, oraing to 
 the antient ufage of the Hbufe in matters of like un;verfal 
 concern, that fomething appealed which rendered the 
 point of law very problematic d. indeed, it mult from 
 rcafon fcem to every reader, th::t altho' the Houfe inquir- 
 ed into the matter, on account of its infinite confequence 
 yet, that it could not be warranted in palling a c nlurc 
 upon thofe who had ufed thefe warrants, nay, was on the 
 contrary obliged to hold them jultifled, and to difcharo-e 
 the complaint agaii.it them, however much the Hojfe 
 might with to damn fuch warrants, if not in all cafes, yet 
 at lead, in that of mifdemeanors and libels, and with that 
 view had apparently narrowed the firft propofed refolution 
 to one of a particular nature. The natural concluiion * 
 from the printed votes and journals muft be, that the Com- 
 mons could not find a ground for condemning General 
 Warrants in all cafes, or even in the Tingle cafe of a libel, al- 
 tho' accompanied with an order to feize papers ; infomuch, 
 that 1 fhould think an able man would hereafter allege the 
 prefent proceedings, as a jufhhcation not only of thefe 
 General Warrants, for the lei/.. ire of perions, but alio of 
 papers, even in the cafe of a mifdemeanor, (o that this 
 ufage will be apt to gain ftrength from what has palled, 
 as non regredi tjl prcgreai in f:..ch an enterprize as this. 
 
 * VUU th« printed Voter of T, , 10, 13, 1.5 aid !-, 1764. 
 
 Th- 
 
r ) 
 
 or even 
 • to 
 Iters, h 
 tin- . when 
 
 ■ 
 
 the . I ,"',•. 
 
 whii i had 
 
 itatcd in j >rry t h a c 
 
 anv t « 1 1 L c | 
 
 ion in t!i. the 
 
 I it, and t- i not betri nenta calling him 
 
 Co an account for what he (h uld do. 
 
 point o! renfive conf qu 
 
 both to the liberty and pi >an, and the 
 
 Attorney there-tore is a little to > dogmatical, in conclud- 
 that the true quei- inly, " whether the mini- 
 
 "{rryihould fuffcr themfelvea t< I dopes' of a party , H 
 _/\ <. factory a] 1 vindication, trtil] ' I' or, 
 
 as to his round a 'hat this is lC power which the 
 
 « befl friends to liberty h 
 
 it a vratis di£lum t untrue in i • '•> if rt were true, 
 
 nothing to the purpofe. 
 
 Thus much, I have thought myfelf , not 
 
 only in fupport of mv : ' m as a m in, but like ■ 
 
 in honour of the miniitry, who muft, 1 think, be highly 
 , leafed with the ovi r H oi an Attor- 
 
 ney, j n i minifter, nor 
 
 i the At( I himfelf, i aflert 
 
 urithin -I' 
 
 As to what he has faid witl ance 
 
 the mere rclblution of the houfe ol • 
 
 recollect that fomething of a like flung out by 
 
 gentleman, who, i whole of 
 
 ht --it, hy i " had he 
 
 ac honour ot , W, he fl 
 
 »« regard fuch a ■ 
 
 u fo many drank l 'en.*' It 
 
 wou »n of the 
 
 rurr, 
 
 « aad wou 
 
 * 4 law," by ail the comm nd. And witl 
 
 . 
 
 w iuI 1 
 
( 76) 
 
 would be of none. Nothing but the concurrence of 
 
 , Lords and Commons will <l<> for him. /\nd yet, 
 
 I (hue (ay, he would be confounded y frightened with a 
 
 finglc vuto ol either houfe, (hould he live to ncc 
 
 it. I will not lav, that the two houfet have ever 
 far as to makt law, alt ho', 1 l>< lieve, the,- have gone I 
 as to ii ^">g; hue this, I am Aire of, that they 
 
 have very often declared what the law wax, in very irrent 
 points, and tin's is al! that was contended for. Jn times 
 more remote, when hou! I amnions wcie not fo 
 
 fcrupulous, they have frequently come to resolutions de- 
 claratory of the law ; as any one may fee, by reading an 
 account of their proceedings in the reign of Charles the 
 Fiiil, when headed by Sir Edward Coke, Selden, Glan- 
 villc, and the gieat lawyers of thofe days : and this ri^ht 
 they continued to claim and to exercifc when Mr. Son 
 Serjeant Alaynard, Sir William Jones, Sir Francis Win- 
 nington and other lawyers, undertook to conduct them 
 prior to the Revolution, which laft t;anfac,tion, altho* 
 wearing away very fall: in remembrance, is a period of 
 hiiF>ry not yet abioluteiy forgotten. At that time, j'ome- 
 of the men i have named were thought to underlTand the 
 conftitution ; they had lived in ticklifh times, and ftudied 
 it clofely : neverthelcli, I do not, in this refpeel, mean to 
 compare them with the refpedable perfon I have juft now 
 alluded to, altho' they had certainly attended the houie 
 much more than he has done. 
 
 In thofe times it was the notion, that, upon any illegal 
 arreft, or other violation, by a great Minifler, of a mem- 
 ber of their houfe, it was neceiTary to come to a refolution 
 forthwith, concerning the law upon that head, without 
 waiting for the flow, and poflibly ineffeaual, proceed- 
 ings of a Court of Jnftice, where a mere miitake, in 
 the manner cf pleading, might delay for a year, or 
 poflibly fruftrate entirely the fuit. The parliament 
 was anciently called, commune con/ilium regni, communis 
 rcipublica fponfio. And 1 cannot even yet regard a refo- 
 lution of the Commons, in the fame light with the Attor- 
 ney, as " a mere amufement;" becaul'c, it by virtue of 
 any refolution of theirs, whether the fame may be pleaded 
 in a regular plea or not, a man be committed to Newgate, 
 the Court of King's haul will never venture to queftion 
 the legality of the proceeding. When the Honourable 
 
 Alexander 
 
( 7* ) 
 
 Alexander Murray wr. nitted, a late great patriot, 
 
 Sir John Philips, put on bb gown, and c.mic into the 
 court on purpole 44 to make I /notion, as be pbral '•! it, 
 41 in the caufc of liberty, M and prayed a Habeas Corpus 
 for the laid Mr. Murray ; V I accordingly granted 
 
 of comic. The caufc of his imprifonment, returned by 
 
 the . aoler, wa only an order of the Honfe ofCommoj 
 
 without any crime alledged. The J . i they could 
 
 not qucftion the authority of that houfe or demand the 
 caufc of their commitment, or judge the lame; and 
 therefore refuted to dilcharge the prifoner, maugre all the 
 patriot's arguments to the contrary, and I d him. 
 
 Na , I will menti< n to the Attorney one Other cafe, 
 which will be worth hifl confidering, before he flights the 
 notice of a refolution i I ; Commons. In the 
 1689, one Topham, the Serjeant of the houfe, com- 
 plained, that being fcrved with feveral actions, for taking 
 perfons into cuflody by order of the houfe, his pleas of 
 their order in his j unification, had been over-ruled in the 
 A vg's Bench. 1 he Commons thereupon I, "That 
 
 M the faid different judgments, given in the King's 
 44 Bench againlt the faid Topham, are illegal, and a . - 
 4: lation o! the privileges of parliament, and pernicious 
 *' to the right- of parliament ; and that a bill be brought 
 44 in to reverie the faid - they ordered 
 
 that thofc of the Judges u living, fhould attend ; 
 
 which they did. Sir I rton, (who had been 
 
 the Chief Juftice) being defircd to give his rcafons for 
 over-ruling the Piea oi the order of that I! *cd, 
 
 44 That he knew little of the cafe, it ng fincc. 
 
 44 Uut that in cafe the defendant fhould plead he did su 
 44 the plaintiff by oidcr of this Houfe, and fhould plead 
 44 That to the jurifdic"cion of the King* x hi; 
 
 44 thought, with fubmifion, he could fatisfy the Houfe, 
 44 that fuch ■ plea ought to be ov I that he 
 
 44 took the law to be fo clearly." He then withdl 
 and Sir Thomas Jones (a puifne Judge) being examined, 
 
 faid, 44 Th it it traa long fince, and, n what 
 
 * c he was to attend upon, could give no ac . reofj 
 
 44 but, that if any uuh judgment wai given, he hoped it 
 41 w.i, ai t ording to I and 
 
 then withdrew. Sir F. Pemberton I, a:id 
 
 Ins rea:. .ulion be' 
 
 1.1 d| 
 
( 77 ) 
 raid, he defired time to anfwer, both to the whole too- 
 ther, and the particular cafe of Jay and Topham. ^ But 
 ■II immediate snfwef being infifted on, he laid, •< T hat 
 * what he fpoke was quoad hoc to that cafe ; however, 
 "■ he gave what he had faid, for his prefent thought! and 
 " reafon." Being withdrawn, the houfc refolved, alter 
 a debate, That the orders and proceedings of this Hon: , 
 " being pleaded to the jurifdidlion of the court of King's 
 *' Bench, ought not to be over- ruled." They then or- 
 dered thefe two Judges to attend again on another day ; 
 when they were fcveially examined, touching their reg- 
 ions for over-ruling the plea of Serjeant Topham to tha 
 action brought againft him by Jay, and ordered into cuitody 
 ot the Serjeant at arms. 
 
 The Attorney, however adds, that even the Refolution 
 contended for would have been of no utility, becaufe it 
 might have been eafdy evaded : and then ftates two or 
 three cunning devices as ** cvafions, which he conceives 
 " would frustrate the refolution, and confequcntly render 
 •« it, in eft'eiSt, no fecurity at all." A change of a word 
 only in the •* form, he fays, would fubjeel us to the lame 
 " evil." To evince this, hefuppofes a Secretary of State 
 " was to grant a particular warrant, defcribing the per- 
 " (on y for the feizing the papers; and a general warrant 
 *' lor apprehending the authors, printers and publishers:" 
 and, thereupon, fays, " he fhould be glad to know whe- 
 u ther either of thefe warrants would fall under this refo- 
 " lution ;" and then, taking advantage of the ground he 
 has got, rifes in his demands, and ventures to afk, " Whe- 
 u ther, if the words treafonable practices were in.'ertcd 
 " (and endeavouring to excite to treafon, he fhould fuf- 
 " fpecr. to be a treafonable practice) a General Warrant 
 <c might not in that cafe pafs uncenfured, including both 
 " perfons and papers?" Now, I will fairly tell him my 
 thoughts of the matter, and the probable confequences, had 
 fuch a refolution as that contended for been come to. 
 
 I t.ke it to be molt clear, as the law now frands, a 
 General Warrant is good in no cafe whatever, for the 
 apprehension of perfons or papers, or both ; and that a 
 Particular, or any Warrant, for feizing the papers, is 
 likewife, as the law now ftands, good in no cafe whatever : 
 and consequently, that none of all his ingenious contri- 
 vances before iiatcd, for eluding the law, would be, if 
 
 L at- 
 
( 78 ) 
 
 nptedi worth one finglc thaw. Having laiJ this down, 
 I (lull proceed to :, in my poor p| inioh, it" the 
 
 refoluth n had b< . to as it arofe out of a parti- 
 
 mplained of, it would hnve looked to the 
 \ t houfe of parliament, wheitevti in any 
 
 I . ticular inftanci privilege of a freeman, the 
 
 \i." ny of hi>- perl in the perfop o: one 
 
 of their own m< mbei s, and came to their knowledge, they 
 would take immediate notice ol it, on purpofc to expfefc 
 their indignation againfl the outrage , in ordei to del r ail 
 men from doing tn t tin future, and to keep ■• ih, 
 
 m every I the law upon that head. 1 B i. de- 
 
 claration in this cafe, where no doubt of the law itfel 
 could be pret I, wo Id have convinced all mtnkind 
 that, when i law wascNar, they would not lufhr 
 
 it to be violated by an i, ever fo high, orocr fo 
 
 t, without their immediate inquiry-, and the fix in 
 ndelible brand for fo dangerous an oftence. PoAertty 
 would have feen in the journals, by the very cafe beh re 
 the houfe, that the refdlution was adapted to ir, neither 
 falling ihort of, nor going beyond it ; and from thence 
 too would all mtn iudge how unadvifcahlc it muft be for 
 any man, to infringe the liberty of the fubjedr. in any one 
 p i-t. From this inftance they would naturally reafon to 
 others. Therefore, hardy as the Attorney is, 1 believe 
 that, after fuch a tefolution, he would not venture, on 
 any quirk grounded in the change of I w ird, to hive at- 
 ht againft the fpir.it or words of the rcioluti n, 
 by the feitxire ol ;;ny member, or indeed, ol any man ; 
 or 5 if be did f the Houfe, which he 
 
 had fo trifled with, would have fwiftly purfued, overtaken 
 and punifhed him. The G mmon ,; f fcncUnd would nor, 
 in a great conftuutional point, between Miniften of the 
 Crown an 1 r ■ refentativei i I I ■ ople» end re ths t kind 
 
 quibbling which is tol rated • ere priva 
 
 in difpi tea of I nm & ttwm, in ordinary ca 
 
 '.iirrs belt 
 
 -J,,, . corn- 
 
 hit h, i , th tt, *' the qucftion of 
 " I-- i ry ol the wai i 
 
 t$ \ , ight in bis in- 
 
 io hear it, but cannot help 
 
 : i fo much before ; altho' I 
 
 think 
 
( 79 ) 
 
 think fomcbody did once tell mc, that in a tr'ml at niftprlus, 
 where this and another point were in qucltiun, the Chief 
 (ultice of the Common Picas did deliver his oiun fenti- 
 ments ahout the warrant itfelf. Bit this cannot poflibly 
 be what the Attorney alludes to, as it was only the diiUum 
 of one Judge at nift pritts, where this too was not the only 
 point, hut min -led in faiit with others; and where no 
 ju/l tnent his been given upon the verdict, by reafon of the 
 bill of Exceptions : which therefore is nothing, cannot 
 hereafter be cited in argument as an adjudged cafe, and by 
 no means comes up to an aflual decifton of a court ofjudica- 
 turt ; as, That always implies, that the point of law was 
 folemnly argued upon a dated queftion, before one of the 
 fupremc courts of law, that is, a bench of Judges, and 
 by them deliberately determined and adjudged. 
 
 As to the allegation of its being " in the power of any 
 u one of the parties acting under that warrant, to havo 
 M brought it into iflue at his option ;" what is that to the 
 party injured and acted upon, if be had it not in his power 
 to have done fo ? 
 
 But without entering into all the obliquities of chicane, 
 which may be pracTifed to delay for two years together, if 
 rot entirely to prevent, any determination ; there are 
 many people who will never believe, that for fuch a reafon 
 alone, any Houfe of Commons, in an effential point of 
 liberty, touching one of their own members, would wait, 
 efpecially in a clear cafe where the law was not doubtful, 
 to fee what might or might not be done in any inferior 
 court, but would immediately come to a ftrong refolution 
 in behalf of the fubjeft at large, thatfhould in their printed 
 votes pervade the whole kingdom ; and not leave any 
 country gentleman, or other unlearned man, in a future 
 cafe of a like fort, to fend for information to fome prac- 
 titioner of the law, before he could tell what to do in the 
 matter. 
 
 Where the birthright and immemorial franchife of the 
 fubjedt has been broken, why fhould not the Commons, 
 when affembled, come to a refolution ; alter a complaint 
 made to them, the fact apparent, the law certain ? Would 
 it not have been conftitutjonal ? Would it not have been 
 fatisfactory ? When it was directly advanced, that it would 
 be an infult on the underitanding of mankind, to pretend 
 rh.U the iifnge of a political office could overturn or fuf- 
 
 L 2 pend 
 
( ?o ) 
 
 pead the Uw of the land ; did any one man attempt to- 
 gainfay or contradict the pofittOO ? And if, a recent dc- 
 Cermination at law by any Ju ge had been upon the point ; 
 is it not an additional rCftibn tor the houfe not befit..; 
 about a damnatory r. ; Or, ii as was before ur- 
 
 . perhaps a !: , the point by fomc 
 
 n la or other, v. (decided in the courts 
 
 the i v for the par- 
 
 liam. : t : > prevent any fltlj eb) in p« ple'a mil 
 
 .. thetl cleai birthnght? Nay, as c\ . knows- 
 
 tha: ComtnotM is independent, what- 
 
 ever otht.^ may lu\ e been ; will not the reception, the 
 difcuiEon by the longcfr debate in the journals of parlia- 
 ment, and the fubfequent fufpcnfc and indecifion of the 
 point, make, men who had no doubt before, begin to- 
 doubt a li f tle now? What fhould make a free, conititu- 
 tional and independent part of the legislature, when ap» 
 ! to by one of its own members, (I may fay fled to\, 
 as an afyluca from the violence of thofe pretending the au- 
 thority of the crown,] refufe to come to a deciuvc refo- 
 lution in favour of their own and (very other Knidiihman's 
 boafttd inheritance? May not this create a doubt in many 
 a fcnfible man's mind where there was none before 
 the times bad been arbitrary, men might have thought 
 the crown perhaps had interpofed, and that the Cornm 
 wcic therefore afraid to perfift in the after It on even of 
 their known rig But there not being the lead ground 
 
 now for (uch a furmi/.e, it -.vl'.l make many men at a lofs 
 how to account for the parliament's taking up the matter, 
 bOJlftdering it, and then coming to no resolution at all, 
 but adjourning it Unr die. The point was to great, that 
 never were the eyes of mankind more fixed upon their re- 
 } refentatives. indeed, I never i'r.\v more ftir in the H< 
 itlclf, every body preifing his friend to Hay and vote: the 
 Secretaries of th i Treafury, and oth, r men ol conf< quel 
 were rcmaikably :.d every thin r Wore the I 
 
 :ilivc day. Why, after all, no rcfolution was come 
 to, I never could learn. I am fore what has been urged 
 without doots, ha- net the leaf) femblance ol feafon or 
 conltitution. indeed, in all mv reading ol pafl times, 1 
 have nevei met m . like it. (. )n fuch points, the 
 
 Commons ever uled to proceed to a ftroOg rcfolution. 
 
 What tbecefore influenced the miniAcrs on that day, I 
 
 can- 
 
( Si > 
 
 cannot gucfs, unleff it be what 1 d2rc not name. The 
 common report is, that they carried their point, incoming 
 to no refolution, but by fourteen ; that during the debate, 
 they were apprchcnfwe the majority would be againft them ; 
 th-t many of their very befl friends voted, and fome even 
 (poke againft them ; that fomc fons left their fathers, and 
 others with difficulty went out of town ; that many mem- 
 bers, who had not attended the whole feffion before, came 
 down, fome from fick-beds, others from foreign parts ; 
 and yet, after all, altho' the Houfe fat two days on the 
 matter, the firft day from three in the afternoon through 
 the whole night, till near feven the next morning, and 
 the other day till half an hour after five in the morning, 
 the deciding reafons againft coming to the refolution pro- 
 pofed, prevailed only by a majority of fourteen. The 
 crowd and agitation of people about the Houfe was inex- 
 preffible ; fubftantial old citizens, who could not fleep 
 from concern, flopped members as they paiTed in their 
 chairs, to know the event ; in fhort, the face of mankind 
 could not (hew more diftrefs, if the conftitution had been 
 actually giving up to a "Stuart, in one of its moll elTcntial 
 and vital parts, by a Tory and paffively obedient parlia- 
 ment. And why all this ? I am curious to know j Imuft 
 again from my heart declare, and I conjure, therefore, 
 thofe who do know, to give the public their reafons for 
 the fame. 
 
 What " neceffity of peculiar circumftanccs," the At- 
 torney may think there fhould be " ablblutely to require 
 " their interpofition," I know not: but I fhould imagine 
 thefc few circumftances would be fully fufficient; namely, 
 that the acl complained of was committed in time of pub- 
 lic tranquility, without a colour of law, by a King's mi- 
 nister, upon one of the reprefentatives of the people, in a 
 free country, on a charge of the mod difputable of all 
 crimes, which is at moft but a mifdemeanor ; when too, 
 however apparently libellous the words might feem without 
 doors, perhaps (to borrow a common word with the At- 
 torney) no man would fay, they would have been deemed 
 libellous, had they been uttered by any member in his 
 place within doors, fince the memorable cafe of The 
 Five Members. 
 
 Moreover, to return to the refolution propofed, where 
 a practice has obtained in a high office, which is clearly 
 
 contrary 
 
( o*2 ) 
 
 contrary to law, nn*1 it is a matter that nearly zlftQ.* the 
 perfonal privilege of every frieman, it leenr, to me th;ir 
 the very thing which a Houfc o( Commons would natu- 
 rally dd, i , to come to n rclblution, damning that prac- 
 tice, afl ' W go no farther -, for to bfir! r in a hill upon 
 the occa'ion, would look as if a new law was nccrfiary, 
 becaufe prior to that the pfa n e (teemed legal, 
 
 or at lcail very dubious. The bringing in a hill would 
 be countenancing, in tome meafurc, what had been done, 
 and look like a new regulation letting a- foot. Hcfidcs, 
 an act pailiamcnt newly male, is not fo venerable in 
 the eyes of the world, or fo fecure againfr future altera- 
 tions, as the Old Common Law" of the Land, which has 
 been from time immemorial the inheritance of evcrv Eng- 
 lifhman, and is, on account of its antiquity, held, as it 
 were, facrcd in every man's mind. 
 
 It" a matter of conftitutional concern and alarm be 
 ftirrcd In the Houfc, and the M ' do not fecm clear 
 about the law, it is natural and ufual for the Houfc to go 
 into, or appoint a Conmittce, for the purpofe of looking 
 into precedents, to fee how the Houfe ha^ ac"led in fimilar 
 occafions, and what the conltitution is; but, when the 
 matter is fo clear at the very fir (I blufh, that nobody has 
 any doubt about it, one cannot readily frame to one's 
 mind any reafons againfr coming to a rcfolution at once 
 that may fatisfy the Public. To call for cafes of this 
 having been done is unncceffary, becaufe the nature of the 
 thing fli it. Some things are fb plain of them- 
 
 fclves, that no cafe can make them plainer. This power 
 or' interpofition in the Commons, flow.; of ncceffity from 
 the nature of the government ; they could not be the 
 grand inqucft of the nation, the great council of the realm, 
 fpon!")r-> for the republic, or guardians of the rights of 
 the people, without pofTcfling it. To fuppofe that they 
 h.we the power of inquiring, and that it fhould be proper 
 foi tl ;v, fo I • do, and yet not come to any rcfult, in 
 confequence ol fiich their inquiry, feerrts to he paft un- 
 derftanding : and, where a matter is among the firft prin- 
 ciple of th ' conltitution, it is in vain to be looking for 
 cales to prove it ; nay, Rich a proceeding would look as if 
 this right could not be put in ule, unlefs fome inftancc of 
 its h re produced to warrant the ex- 
 
 erclfe of it. Uut, indeed, there is another reifon why 
 
 ex- 
 
( »J ) 
 
 examples need not he citcJ, which is that they are fo nu- 
 merous, that no man can read through the times of the 
 four Stuarts, without finding the journals of Parliament 
 full of them. 
 
 As to the inftanccs quoted and ridiculed by the Attorney, 
 it kerns to mc that they directly apply to the main hinge 
 of the difputc, that is, to the practice in Parliament of 
 interfering by refolution in matters of law; nay, they go 
 itili farther in point, for they prove that the Houfc has 
 interfered by refolution in matters of law, where prece- 
 dents and practice were cited, and admitted, in iupp-rt of 
 the malefactor ; and that this had been done, not only in 
 cafes of public concern, but even in a private cafe, where 
 the illegal warrant itfelf had been iflued at the defire of a 
 father againlt one of his own children, upon a mere family 
 motive. In this laft cafe, the fimple fact was this, Lord 
 Danby fitted out a fmall veflel with arms, unknown to his 
 father the Marquis of Carmarthen, Lord Prelulcnt of the 
 Council, who acquainted Lord Nottingham, the Secretary 
 of State, with it ; he had not time to put this information 
 into writing, not was it upon oath, but wrote it, upon 
 memory, for his own fatisfaction. Lord Danby is taken 
 up, and fays, " the veflTel was his own, and fitted with 
 41 the arms it had before to make ufc of for his diverfion ;'" 
 which the fecretary found fo ingenuous an anfwer, that he 
 rclcafed his Lordfhip without bail, upon his promife on his 
 word and honour to appear upon fummons. Some of the 
 Members, however, laid, •« This proceeding (licks not 
 " only on the people, but their Reprefentatives may be 
 <c in danger, if, by intreaty, a man may be taken up in 
 Ci this manner, every mother's fon may be taken up. Na- 
 V tural affections muft not be ufed to try tricks with the 
 " government. Lord Nottingham granted the warrant 
 " without oath. Howard fays, it will juftify Lord 
 *' Nottingham, becaufe he had his information from a 
 *.* Privy counfellor." " I would be fatisfied whether a 
 " 1'iivy-counfcllor muft not give information upon oath, 
 ' ; ;i> well as another? If this warrant was granted as a 
 '.< Privy-couniellor, or a Juftice of Peace, I know no 
 " law for it ; for, if fix Privy-counfellors do it, and here 
 v is but one, it is worthy your confederation. If as a 
 44 Juftice of Peace, he cannot take up a man without 
 '* oath. IS one Counfellor Hia.Il whifper to another, and 
 
 " im- 
 
r s 4 ) 
 
 44 hsprifbn a man, I know not who cm be fa'e. If we 
 vl take Up this now, tl the rate elections go at, and the 
 
 M determination in Sir Samuel Bernardifton'a cafe, they 
 *' may have a Parliament as they pleaie. I know not but 
 44 that it may be in the power of one great man to make 
 " I Parliament. 1 fhould he loth to go without this bc- 
 44 ing decided ; there would be no f'afcty for me when I 
 41 am at home. In two months this man may go round 
 " the Houfc thus : I hope, as EngUflmcn, we fhall not 
 Ci forget our rights ; and any man that will do this, a not 
 *• fit to be employed in the government. I would not 
 44 have it go off that he can warrant the thing. Profe- 
 *' cution of a writ will hinder a member from his at 1 . 
 4v ancc. He faid, " the warrant is for treafonable prac- 
 44 ripe ," which is bailable. I hear it moved to rcrVi it to 
 44 the Committee of Privileges to inquire into it; b t I 
 44 think that not fit. From whom will you have informu- 
 44 tions ? Will you fend for Lords Nottingham and Car- 
 u marthen ? I would have a good corrcfpondcncc with the 
 44 Lords: the Peers will not come to you, and there will 
 44 be a rupture. Hut if you will come up to fhe motion, 
 44 for your honour and cafe, vote the breach of Privilege^ 
 " and then addrefs the K:ng to Mke order that the like 
 *' be not done for the future. Granting the warrant is a 
 44 thing tha muft not be pafled by fo haftily. You w 11 find 
 44 few meflengers that will deny fucb execution ot a war- 
 44 rant. The Mcflenger (fays the Speaker) undoubtedly 
 44 breaks your privilege, a^ well as the bailiff that arrefts 
 44 your Member. The bailiff and he that fues out the 
 44 writ 2gainft a member (adds Mr. Hawks) arc upon 
 44 rfcord ; and if you only call upon the perfon who docs 
 44 officiate, your privilege will \ e quickly loft. Whoever 
 44 iflues out the warrant, is more, or iq tally, g'iilty than 
 *' be that execute) n, fays old Sir John Mtynati.) As 
 u this cafe ftands, a member is impnfonedj and a warrant 
 44 is made to take him for treafonakli pruiluts \ if we take 
 u notice of ir, and let a member fit among us fo aceufed, 
 44 we cannot well anfwer it. We are to vote it a breach 
 41 of privilege, and then inquire what thofe treafonable 
 44 pra&ices arc. At this rate we may all be imprilbncd, 
 <l and whipped to our liv I e:i I. VoO ll a brea h ol pri- 
 
 cc rilege, and lit not mute upon fo [lain a brea< h. (To 
 u which Sir John Thompfon fubjoint) He that toucl 
 
 » the 
 
( «<; ) 
 
 •• the Parliament, the \ ital prut of the nation. 
 
 «• The man i .bout him 
 
 ** the legiflative authority to commit in this manner. The 
 •■ IvfefTenger had been • lapped up, if he had not done it. 
 44 Put the queftion thus; '* That granting the warrant with* 
 ** out notice, &c. was a breach of privilege, &c." The 
 Houfe then refolved, " That the granting a warrant to arreft 
 ** the Earl of Danby, a Member of this Houfe, and the 
 M talcing him into cuftodv, bv virtue of that warrant, is a 
 M breach of Privilege of this Houfe. ' 
 
 The four cafes cited, by Minority defended, are perfectly 
 oppoilte to the great queftion of parliaments interpofing by 
 resolution, where the known law has been broken by the 
 hand of power. And, I fhould think too, that if a cafe 
 confifts of four points, and a precedent can be found for 
 each point, That cafe would be fully proved by thofe four 
 precedents, according to my notion of logic. At Icaft: a 
 man who denies the reafoning on this head, has no right to 
 accufe his antagonift of " unfaiincfs and quibbling," a* 
 the Attorney does throughout ; and, from what I fee of his 
 performance, fhould therefore imagine he could only do fo, 
 in order to forcflall the charge, and to prevent its being; 
 applied to bimfelf. And fo far from being angry, as he is, 
 with two of thefe cafes, for being applicable to a Chief 
 Juitice of the Kings-Bench, I like them the better for it, 
 and wifh, that whenever a Chief is found to be clandef- 
 tincly meddling in matters of ftate, in perverfion of the law, 
 he may be dragged into broad day-light, and his name and 
 memory be branded for ever, to the lateft pofterity. I can- 
 not, indeed, figure to tnyfelf a meaner or more pernicious 
 perfon than a Chief Juitice, with a yreat income for life, 
 given him by the public, in order to render him indepen- 
 dent, privately liftening :o every inclination of every mini- 
 ftry, and warping and wire-drawing the plain letter of the 
 law, in order to accommodate it to their inclinations, inftead 
 of purfuing the courfe of cftab!ifhed precedents, inviolably, 
 intrepidly, and openly, without regard to party or perfon. 
 The chapter of expediency is the very worft fource of ad- 
 judication, infomuch as it tends to the fetting afloat by de- 
 grees, the whole law of the realm; and the law of difcre- 
 tion is the law of tyrants. 
 
 " In our law, the Judges are bound, by a facred oath, 
 *' to determine according to the known laws and antient 
 " cuftoms of the realm, fet down in judicial decifions and 
 
 M " refo- 
 
( 86 ) 
 u resolutions of learned, wife, and upright Judg , upon 
 m rarrctf of particular fact-, and cafes, vrhicfa when they 
 tk li.tvi been thus in use, and pra&ifed cine out of min 
 4t arc a part <>l the common law of the kingdom. And it 
 **■ is a moll dangerous thing to (hake or altei any oi the 
 * k rules or fundamental points oi the Common Law, which, 
 44 in truth, arc the main pillars, and fupporten of the fabric 
 44 of the Commonwealth. To have no rule to decide con- 
 *' troverfies but the rule of equity, is to begin the world 
 
 44 again, and to make choice of that rule, which out of 
 
 *f mere neceffity was made ufc of in the infancy oi the llatc 
 44 and indigency of laws. And to fet up this rule, alter 
 44 laws arc ellabliflied to relieve haul cafes and leave the 
 44 matter at large, i> it not rather unravelling, by unperceived 
 44 degrees, the fine and dole texture of the law, which has 
 44 been fo many hundred years making . : The laws of this 
 44 kingdom are not, now-a-days, to be fpun out of mens 
 4C brains, pro re nata" 
 
 44 To allow of any man's difcretion (fays Lord Coke) 
 44 that fits in the feat of jullice, would bring forth a mon- 
 44 ftrous conlufion." It is, indeed, wonderful that any man 
 fhould have lo fervile a difpoiition ; for, let his abilities be 
 what thev will, he will always be regarded as a contempti- 
 ble perfonage. This fort of profligate magistrate mav be 
 iure of being ufed by every miniilry, but ot being cllecmcd 
 by none, feeing no fet of men can depend upon him any 
 longer than they remain in office and power ; his only 
 principle of action being an imp!: I nee to the o!d 
 
 tutelar . s aim at St. James's, lie mull be, in truth, 
 
 A tim'ious foe, and a fufpicious fiiend, 
 Dreading e'en lools. 
 
 And u Cowardice in a Judge is but another name for 
 4k Corruption." 
 
 Since theft two examples of tlu- C tmmons de< taring the 
 law, even in oppofition t<> the practice and decifiom 
 Chief Julticcs, have been mentioned, I cannot forbear 
 noticing two or three circumftan i in their cafes, which 
 I |y moll furpriflngly with fome ol tl doctrine I have 
 advanced, and with the came that gave occafton to it. 
 The committee reported feveral cafes of reurainrj put 
 
 >n Juriei by L. C. J. Kulingi among other thin 
 
 that, 
 
7 ) 
 that, ',' in an indidment for murder, which the Jury 
 4t found manflaugbter, becaui they found no malice pre* 
 *' pence, he tola them, they mull be ruled by him in mat- 
 44 ter of law, and forced them to fuu\ the bill, Murder ; 
 M and that the man was executed accordingly, without 
 "■ reprieve, notwithstanding the addrefs of the Gentlemen 
 11 <it the Bench to him. That he forbid a Habca-. Corpus 
 " and a Pluries to be iffued out ; fo that the party was 
 *' obliged to petition the King." The Houfe thereupon 
 refolved (i.) " That the proceedings of the faid L. C. J. 
 *' are innovations in the trial of men for their lives and 
 ** liberties. And that he has ufed an arbitrary and illegal 
 " power, w lich is of dangerous confequence to the lives 
 •« and liberties of the people of Hngland, and tends to 
 *' the introducing of an arbitrary government. (2.) That 
 " in the place of judicature, the L. C. J. has undervalued, 
 " vilified, and contemned Alagna Charta, the great pre- 
 " ferver of our lives, freedom, and pioperty." As to 
 L. C. J. Screggs, there was a great complaint againft 
 him, for his treatment and dilchargc of a Middlcjex 
 Grand Jury, before they had prefented all their bills, for 
 arbitrary proceedings in cafes of Hbel t and other matters, 
 and for lfluin^ of illegal General Warrants for pcrfons and 
 papers. The Law-members in the Houfe urged, That 
 44 if a Grand Jury be difcharged vrhilll indictments are 
 ** depending, there could be no proceedings of iuftice. 
 " The Jury was likewife blamed by the Chief Juftice, 
 44 and told, that they meddled zuitb matters which concerned 
 44 them not. In former times, Judges had one rule of 
 "juftice to go by, and another of policy, and if Judges 
 " once undertake that, there is an end of all law. Shall 
 " we have law when they plcafe to let us, and when 
 44 they do not pleafe (hall we have none ? It is afluming a 
 44 legiflative power, by which a Judge makes his will a 
 *' law. Do as you have done already in this Parliament^ 
 *' make a vote upon them. If you do not deeply relent 
 44 this, all your laws will fignify nothing to polterity ; 
 44 for all is at ftake, if men take upon them to proceed fo 
 *« arbitrarily, and are fo fervile as to violate laws for felt- 
 44 ends. I will not define the offence, but, I think, 
 4 < thefe proceedings do fubvert the fundamental laws, and 
 " fo 1 would go" to the utmoft feverity of judgment. 
 44 The firft violation of Magna C'arta, was from the 
 
 M 2 M two 
 
a ) 
 
 m t\'. • ' theft 
 
 tw Judges have now taken upon t'irm to ful vrrt the 
 
 - to 
 - 
 
 *■• t!' what • 
 
 v - pon rh« n ; lei lition b hot 
 
 " brought to that. I would gladly know whatwai 
 '* is t i bring a great criminal to puuifhment I '. a- 
 
 tl no ■ • .n vc littl . what 1 
 
 *.* f.c:i) it c. , or nor, 
 
 4t inquire into ife. 1 think I can ic- 
 
 tk meml ei t, whtn the ■• • ■ m ;:.c-m 
 
 "I - ate the laws, at >ia:e the Kin ;' i 
 
 w and i their pains j 
 
 " 1 flial 1 mal 'jplc to do it again. Printi 
 
 •- ake now to be free. A iubicct hath, by law, hb 
 "to write, (peak, oi print; he maj be ind idled, H ' 
 " trai . and it is at bib pcui, if' be oil' 
 
 unlets he be licenl d. 1 . I 
 
 at Sen • '.- di e£li< n. 1 ut, it' 
 " I c .:: be found to make new laws by then inter* 
 
 *' prctation oi the old one ; and if 1 'rc.il'urcrs can be 
 u icund, &C." "• A Committee was appointed to c\.t- 
 " nine the proceedings of the Judges in Weftmittfteft- 
 " hall, and to rep :t the fame, with their opinions trttre- 
 '< in, to the Houfe." Upon the report of th< I 
 mittcc, l * th ■ I lou eTefol 
 
 ti the difcharging ol the Grand Jury by the Court of 
 u King's Ben< b, before the tail day ol tin Term, an 
 44 they had finiihed their presentments, was arbiti 
 tl illegal, defl I public juftice, a manifetl \ 
 
 tk . i the i aths ot the J : Court, i nd • n 
 
 *■<■ tofubvertth< fundamental laws of this kingdom : 1 
 «« it i'.. the opinion >i this lb u e, that the i 
 " the. Couir. of King's lunch, . 
 n c //'.•., Pa, .:. ; 
 
 «* il eby ufurj 
 
 That the c ii r t i luiuh, 
 
 *« in the imposition 
 
 »« | , lially : . I I I 
 
 « i, fufii w hi m in the 
 
 Kb ted i : by law, 
 
 ach of the b the fubj< 
 
 l> I 
 
( 8 9 ) 
 " That the warranto * iflbcd by the King's Bi m h arc 
 ** arbitrary and illegal. And it was ordered, lh.it the 
 14 f.iid report, and the fever. il resolutions <>i the Houfe 
 *< ihereup >n, be printed ; and that Mr. Speaker take care 
 •* In the printing thereof apart from this day's other 
 Thus did the Common! b< have in the cafe <>f two Chief 
 Tufticesofthe King's Bench, and their conduct is fbdecifite 
 upon the point \v>: now are, thnt no words can add 10 the 
 force of it. BlJt there was another thing, which was done 
 in the fame feffion, that I cannot help relating. The 
 Under Secretary of State, by direction of Sir Lionel Jen- 
 kin*, Secretary of State, who had received a verbal order 
 from the Clerk of the Council for the purpofe, writer a 
 letter to a gentleman at Dover, defiring him to wait upon 
 the Mayor, and direft him to feize a man, if he fhould 
 land there, together with his companions, and detain 
 them until further directions ; and In this letter there is in- 
 clofed a particular defcription of the Man, and his name 
 faid to be Morris or Morris. The information upon which 
 this letter or order proceeded, was not upon oath. How- 
 ever, when Norris landed, he is taken and carried before 
 the Mavor, who though: it reafonable to commit him to 
 the common prifon, and to feize his papers. Wh :n that 
 was done and known, there wer_* two orders of Council 
 
 * " Ang. IT. Whereas dure r.rc divers ill-difp led p.-rfons, who Ho daily 
 print audpubiifh many feditious ana treafonable books and pa-nphlet?, endea- 
 vouring thereby todifpofe the minds of his rVtajefty's fubjects to (edition and 
 rebellion: And alio infamous libels, refle&ing upon particular perfons, to 
 the great fcandalof his Majefty'j government. For fuppreffing whereof, his 
 Majefly ba$ lately ifTued his ro\al proclamation : And for the more fpeedy fup- 
 preffing the fa'.J feditious bookr, libels and pamphlets, and to the end that the 
 Auth' t . hers thereof may be brought to their puniihment : 
 
 " Thefe r.re to will and require y u, and in his Majefty's nam'-, tocharg* 
 and command you, and every of you, upon fight hereof, to be aiding and al- 
 fifting to Robert . -rof the l'rels, in the fcizing on .ill fuch. 
 
 books and pamphlet; a: aforefaid, as he fhall be informed of, in any Book- 
 fellers cr Printer: flic:-3 or wareboufes, or eltcwherj whatfoev.-r, to the en 1 
 they m iy be dii'p .:".■ : as to Law ir. ill appertain. Alio, if you fhall be informed 
 of the A' hers of fuch books or pimphlets, as arc 
 
 above men: fiend them, and have them bJorc one of 
 
 hi c Majefty's [offices o( the Pure, to be proceeded agiinft according to law, 
 Dated this 29th of NovemLcr, 1679. 
 
 To Robert Stephens, MelTenger of the Pr;fs; and to all Mayors, Sheriff's, 
 Baiii'V . i . .r. and Minifters whom thefc 
 
 nun; 1 .• .cm, 
 
 \V. Scroggs. 
 
 to 
 
( 9° ) 
 
 to the M ivor to flop rod deliver him to a Meflenger, who 
 i^ lent down on purpofc to bring him before the Council, 
 in cuilody ; ami the papers arc ordered to be lodged in the 
 council chefr. Norm, attcr being examined, was dif- 
 
 m i fled, and it was dec'..: u ic of 
 
 detaining him ; and the verbal <:dcrfirff. mentioned ivaJJ 
 enl .-led in the n inutc-buok of the council. Upon 
 fe, a complaint is made to the Fioufc of Comn <ms, 
 who immediately app int a Committee to inquire im 
 report the matter to thefioufe, which is done accor^ 
 Members enter warmly into the giievancc, rod 
 of them fay, " I would know how the Privj [ 
 " came to have a defer iption of this man. It may !., 
 «■' the 1- icnch Ambaffador has had fome influence it! 
 M Councds. I do not know what ftopping a man on the 
 ** wav or road is, to be immediately lent up to the ( 
 *• cil bv a Mayor or OiHcer, upon verbal order. 1 know 
 M nothing of a verbal order of Council ! /;/ cafes cf ' nectf- 
 u f :t y t0 commit illegal aSiicns — thefe arc llrange aft", i lions 
 41 tor what have been done, or what may be don.-. The 
 Ck Thing is all of a piece, for fome great pcrfons are COO- 
 " cerned in it. Let Gentlemen make it their own cafe. 
 ct I fee not who is to blame, but he that figns the war- 
 " rant ; nothing appears to you elie, therefoie put a 
 M brand upon it. A parcel of men there is, who abufe 
 tw the King, and fri'l you muft be tender of them, and 
 44 thefe men muic Hill be about the King.' There 
 Sir Lionel Jenkins very honourably took on himfelf the 
 letter written bv his Undersecretary, and faid, inexcufe 
 in himfelf, that he was but minifterial in the affair, owned 
 he had the tion from a man who had it from ano- 
 
 ther, and that he related it to the Council as he thought it 
 h.s duty ; that he had thereupon a verbal order toleizc the 
 perfon informed of, and, in consequence of that, crave di- 
 rection to hi> Under Secretary to write the letter t 
 mentioned, and if anv thing had been done unjuliifiablc, 
 that he himfelf mult anfwer it ; that lie thought it was 
 
 treafon foi a RomiQ) Vml\ to be up. ;. I ound, 
 
 and felony in Norrii to receive him ; and that, in his p >fr, 
 
 he could do no other than obey hii fuperiors . a: d that ho 
 
 humbly took leave i verbal order in i Com* 
 
 not entered into the minutea 
 of 
 
( 9« ) 
 
 of the council. The Houfe dcfired Sir Lionel to with- 
 draw, which he accordingly did, and then they rcSolvcd, 
 •* That the late imprisonment of Peter Noriis, at Dover, 
 * l was illegal ; and that the proceeding <>t Sir Lionel Jcn- 
 " kins, Knight, one of the principal secretaries of State, 
 " bydefcribin^ the pcrfon of the (aid Norris, and dircct- 
 *' ing Such his imprifonment, was illegal and arbitrary -," 
 and thry made an order for printing the cafe of Peter Nor- 
 ris at large, which was I ike wife done. Now, here the 
 Commons, without any communication with the Lords, 
 refolved a point of law, altho' Norris might have brought 
 an action of falfe imprifonment, had the opinion of a 
 court of law, and recovered damages for a Satisfaction of 
 his injury ; and he was no member of their houfe. This 
 refolution too, was not made as a foundation for any future 
 bill, nor for articles of impeachment, but merely to damn 
 an illegal and grievous warrant. 
 
 Such hath been the conduct and interposition of the 
 Commons under the houfe of Stuart, both father and 
 fon, with reSpect to the law of this kingJom, when in- 
 vaded by great officers of State ; and yet thefe were 
 Princes who claimed a right of governing the kingdom, 
 paramount the laws, jure dlvlno ; whereas it is the honour 
 of his prefent Majefty's family to derive their fole title 
 from the choice of the people, from an EngliSh act of 
 parliament. There is not, therefore, the leaft divinity 
 that can now be poflibly imparted from the throne to any 
 of the prefent miniftry; they are mere men and crearures 
 of civil polity, and their actions may be judged by the 
 common law of the land, without either blafpherr.y, or 
 any extraorninary or occalional Statute for the purpofe. 
 
 This being fo, I am amazed that the Attorney Should 
 think a bill neceflary ; becaufe, if there be no law now 
 exifting, that authorizes General Warrants in any caSe 
 whatever, it really Seems to be ridiculous to bring in a bill 
 " to regulate what does not exifl ;*' an argument, I find, 
 which he affects not to comprehend, merely becauSe he is 
 unable to anSwer it. " The Evil" is the practice or 
 ufagc which has grown oS late, within the time of our 
 fathers, in a clandeftine office, contrary to the Sunda- 
 mental law of the land ; and when this practice has been 
 detected, the parliament need only damn it, and leave the 
 
 law 
 
|2 ) 
 without " the alteration even of an Iota fr» 
 • i matte* of fi rm." The Attorney, b 
 li.uncnt, would, I perceive, fain make Law of this m 
 , under a pretence of bettering; thereby th ( 
 
 mon law ; but, I fancy, he wiil find I 
 
 opinion againft him, and as much afraid ol his coatfe hand 
 as of his fuperiors refinements, and, therefore, tx 
 
 have the law remain as it i-. No act could ; 
 
 tiie end of a refolution, unlefs it were, perhaps, a fhort 
 . ll.uute of three lines, reciting that, " Whereas 
 'a novel practice, had ol late years gained fbotia 
 
 1 1't.ver.il minifterial ofifces, whereby General Warrants 
 1 for the apprehenfion of potions under a general defcrip- 
 ■ tion, without naming any in certain, hjj been illu.d 
 4 from fuch offices, contrary to Alagna Cbarta lo repeat- 
 c cdlv confirmed, and to the immemorial and cfiablilhcd 
 ' rights of every Freeman, and to the known laws of the 
 4 realm ; Therefore, by the direction and confent of 
 4 King, Lords, and Commons, be it declared, That 
 * fuch practice is in all cafes illegal, repugnant to the 
 1 fundamental principles of the conflitution, dangerous 
 ' to the libertus of the lubjcci, and abfulutely unwar- 
 ' rant .b!c." 
 
 Old Sir Edward Coke faid, with fomc humour, in 
 Charles the Firft's reign, at the head of the Commons in 
 
 their conference with the Lords " For a Freeman to 
 
 44 be tenant at will of his liberty ! I will never agree to 
 44 it: it is a tenure not to be found in all Littleton." " Jt 
 44 is (as he fays in one of his trcati(cs) a great deal better 
 44 for the (late, that a particular offender fhould go unpu- 
 44 nifhed, on the one hand, or that a private perfon, or 
 44 public ininifter, fhould be damnified on the other by 
 44 rigour of the law, than that a general rule of law 
 41 fhould be broken, to the general trouble and prejudice 
 tv of many." Therefore, I beg leave to enter my pro- 
 ail againft any bill, to regulate what I hope will never 
 exiit. The ancient Britons in a body, told Auguftinc 
 bimfelf, ft n:u f-.jje ahjq\ juorum confoiju (J liantni prifcis 
 abdicure mmhui, And, as to his preient Maiefty, one 
 may fay, in the words of the famous Si Glanville, 
 
 (fince lam in the humour of quotii w I no fear 
 
 41 oftrufttnghtm with any thing but iil counfel againft 
 
( 93 ) 
 
 "the fubjeit ;" for, when once he is truly Informed 
 what his people's prijei mores or Common law r,, be will 
 never countenance .my officer in abdicating them abjq\ 
 confenfu et licentia j'uorum. 
 
 I can allure the Attorney, that 1 have, according to 
 his directions, " fcrioully attended to his arguments.** 
 However, 1 very much doubt, whether the Minillry will 
 pardon him for obtruding his private reafona as thofe which 
 weighed with them, to put oft* the determination of the 
 question. Indeed, if any of the arguments he has adduced 
 on this head, were really of weight with them, I fliould 
 think it mult be that which he grounds on the imprac- 
 ticability oi pleading, with effect, fuch a refolution in any 
 of the courts of judicature ; for I finccrely eftcem this to 
 be by far the moft fatisfaclory of all. 1 know, my Lord 
 Coke does fay very emphatically, that the fcience of beau 
 pleader is the very heart-Jlring of the law. It would 
 therefore, I confefs, be a lamentible thing to have the 
 Crown-pleaders " divided and confunded" in this their 
 nice and artificial department of the law. Confidering 
 the prefent knotty difficulties attending thefe gentlemen, 
 to throw any additional rub or {tumbling block in their 
 way, would be unpardonable in any good humoured admi- 
 niftration. I do not, however, pretend to form a deter- 
 minate judgment of the miniftry's rcafons for avoiding a 
 refolution, as 1 have not vanity enough to fuppofe I can 
 fathom them. Ptrbaps, they might be fomewhat preffed 
 in time, having other weighty affairs in hand, that the 
 vulgar know nothing of, and therefore would not come 
 to any decifion of the point, feeing they could not give it 
 the parade of a folemn difcuffion upon the report of a 
 committee; or, they might oppofe the refolution, be- 
 caufe it was moved by the opposition, refolving withall to 
 refume it thcmlclves the very next feffion ; which laft, 
 indeed, I am very apt to think may be the cafe ; or, pcr- 
 adventure, there might be other lefs oftenfible and more 
 predominant reafons for their having fo notorioi.fly ex- 
 erted the utmoft of their ftrength, merely to avoid the 
 coming to any refolution at all. They laid nothing in- 
 confiftent with any conduct; and, as many of their bed 
 friends voted againlt them, it cannot be fuppofed thev 
 would run lo much rifk, without fome very extraord; 
 N re 
 
( 9+ ) 
 for fo doing. It hot, however, be dif- 
 
 fa mini- 
 one of them tl linea no lal 
 
 If, what really were 
 .nni to be (or an abfolutc 
 ftion, \\ h 'i fo many people vwrc 
 of c\ lion it would have been more for his intereJI to 
 taken the popular fide, ;md agreed to the refolutfon, 
 " not ;: , at Icaft, as finally mended, nar- 
 
 rowed and particularized by ln\ learned co-adjutors. Such 
 information w Id be much more acceptable, than the little 
 (craps ol po ence, which one now and 
 
 then find in • , and which the common 
 
 r, upon the very fir it view, attributes to Jemmy 
 Twiteher, (qr hi; fecond, IV. Shrbbcarc,) who, I prc- 
 fume, is not of the Houl'e of Commons, and is, perhaps, 
 fomc man that is too much unacquainted with law, and 
 ot too little gravity to be equal to fuch a performance, 
 nnd therefore, contents himfelf with doing bufinefs in 
 aiiot , and < »n 1 y now and then writes off a fquib, 
 
 for one of the daily papers, as any matter 
 happens to ftrilec him, at home, in the cofFcc-houfe, or 
 at the tavern ; in company with his wife and family, his 
 miftrefs and the town, with minifters of ftate, 
 
 gentlemen of tun, bawdry and blafphcmy, or fingers of 
 catches. Altho', I know it is the opinion of fomc pc 
 that any thing will do for the public (poor John Trot.) 
 The Attorney feeras to think, he has fo fufficicntly 
 Majority, that he may fwaggcr a little, and 
 efore afks, Is this all that j complain of? 
 
 J really thought you could have made out a more mo 
 
 Ing him, I know not ; but 
 
 le in general, think the- pi 
 
 bad, it is no' well capable of bei; led: 
 
 and, all he has convinced me of, is, that there is nothing 
 
 n "i < ther, for the prefent penny, 
 
 may be found h to undei CU- 
 
 tion or the defence of. ^V . en I heat man call an aclual 
 
 ;:rrclt of a member of parliament, on the mere charge of 
 
 a libel ex officio^ and tl papers, " a phan- 
 
 tnd remerj I '.he 
 
 tame el upon this qucftion to -i 
 
 very 
 
( 95 ) 
 
 very great aflembly, <c that lie hail ! i a member of 
 
 " it, but ha 
 
 «' it worth 1. mofe vai i ib burn 
 
 " elfc where j" and reoolle& fcarcely cvci to 
 him in that aflembly, or at leaft to 1 ex- 
 
 cept when the confirmation of ** another ;>i:lar ut tbe 
 •* coftftitution, the Habeas Corpus law, 1 ition, 
 
 by virtue of . 
 
 of' and that hu then gave an earner! ol ti m by 
 
 being the champion of the opj ofition to it, infomuch, 
 that he rouzed the indignation of the Great Man of the 
 age jhen a miniftqr) who could not for iear ftarting up aad 
 reading to mm, upon the fpot, the re i ilutions of the ever- 
 memorable parliament of Charles the Ftrft, on behah of 
 the rights and liberties of Englifhrm . I therein (Im- 
 
 ported with great eloquence and ilrength "by 
 
 the, then Attorney General ; ar r, . .1 1 a 
 
 particular friend of indeed 
 
 been the occaiion of the bill : when r, pr (cms 
 
 itfelf to my mind, I want nothing m . rm i 
 
 decifive opinion of the Attorney as a public man. By 
 calling him the Champion, I do not mean to forget, that 
 a certain candid lawyer united his belt endeavours to 
 ftrangle this Habeas Corpus bill ; but then, he die it in lb 
 delicate and qualified a manner, that furely h : annot ex- 
 pect to have bis pals for a full-rat--' fiaT u; i th • o< I ', 
 no more than on another, when h gave up (from c • n- 
 plaifance, 1 prefume) an opirtii had drawn and 
 
 iigned relative to a profecution, and fubmitted to concur 
 in that of an over-beari.ig collegue, who, tho' a fubordi- 
 natc co-adjutor in rank, by the boldncfs of his temper, 
 took the lead in the matter. 
 
 I cannot help here remarking, that tickliih times or 
 political ftruggles, always bring to light the r *al abilities of 
 men, and let one fee whether a man owes his reputation 
 and rank to family, learning, and an attemion to pleafe, 
 or to real great parts, a found judgment, and true noble 
 fpirit. People of the latter clafs, become for evermore 
 coniiderable by oppofitionj whereas the former, by degrees, 
 fink to common men in it, and fhouki . • never 
 
 quit for one moment a court, or, if by connection and 
 chance they arc obliged fo to do, fhou'.d return to it again 
 as fait as they can. 
 
 N 2 Being 
 
( 06 ) 
 
 Iking one of thofe men who think that M The hcart- 
 " blood of the commonwealth I I on the- | n- 
 
 *' vil the H ions," thai is, in all mat- 
 
 ters wh< ia likely to He b tween the crown 
 
 and the people] I cannot help noth ny the lcaft inci- 
 
 dent, that teems to mc to break in upon it at all, and en- 
 deavouring from the conduct of nun, even in fuch little 
 i tters, to find out a due that may unravel their difpo- 
 :i in concerns « t much greater moment, not judging 
 of politician! in the leair, from the profeflions they make, 
 but from their actions, as the genuine cxpofitor of their 
 ioul. 1 have likewife remarked, that univerfal civility and 
 a fmiling countenance, do not neceiTarily imply friendfhip 
 and sincerity, or candid difcourie a real uifiutereftcdnefa. 
 And no I)o£tor, however learned in civil lire or the 
 morals of Epicurus, Hull negociate me into another opini- 
 on. Hut, b> privilege of parliament, I do not mean that 
 mption trom private arrefts, which feems to 
 mc to operate againfr, liberty intirely, and to render a House 
 of Commons no other than an afylumn tor needy deb;, 
 who, you m:iv be fure, when once they a:e elected, like 
 all other people in worldly diftrefs, both will and mull do 
 any thing for ready pay. Although one of this defer ip- 
 tion may be afhamed to look mankind in gencial in the 
 face, yet i:pon any call of a pulhed miniltcr, he will 
 contrive to fkulk down to the Lobby, and be fure fo to 
 difpofe of bimfelf, i ■ abic to con;e forth, wheni 
 
 the division takes place, and then, perhaps, difappear'till 
 a fecond c.!l ol i nfequence (hall render his appearand M* 
 fome worth again. I fpeak alone in lupport of privilege 
 againfl tht power of the crown. Now, 1 remember b - 
 ing in company not long ago with fome lawyers, who 
 wi. ive to Mr. Will 
 
 Occasioned by his having a design to lav hold of the fir it 
 moment for ftiiri;)^ a complaint of a breach of privi 
 in his own peribn, and the Chancellor ol the Exche* 
 quer's having likt icflage trom the King to com- 
 
 mu;. • the 1 1( tali i m< < rnii and that 
 
 upon I one of my companions declared, ..cording to 
 hit sentiment . I i ; could be no doubt which would be 
 int; tnce or precedence, i! it wire only 
 
 from | motive Ol immedi- 
 
 ately faid, M this matter can admit ol no difpute, and I 
 
 M fans j 
 
( 97 ) 
 " f.incy I don't hear well; the exigence of the freedom 
 « of a Houle of Commons depends upon privifc 
 " meflage from the King of a breach or Privilege ! 
 " Strange worth ! It cannot be fo ; it may be of fome- 
 «' what relating to Privilege." A Gentleman in the 
 pany thereupon bethought himfelf of laying it was ufual, 
 in order to give a certain commencement to a feffion, to 
 read a bill ; and that for this rcafon, the Cleric always pre- 
 pared one accordingly. This gave room for a complaifant 
 lawyer immediately to throw in, that thij was certainly 
 necefTary, as all ads of parliament, having no certain 
 day named therein, were in force from the beginning of 
 the Seffion, and that my Lord Coke had faid fo. The re- 
 flect of us all for this conciliating Gentleman's opinion, 
 at that time, made us acquicice in what he (aid. How- 
 ever, I then thought it a very ftrange rcafon, and fince, 
 upon inquiry, find there is no foundation for it, altho ', I 
 fuppofe the candid gentleman really thought there was, 
 when he faid fo, and that he did not drop fuch words in a 
 free company like our., merely with an intention of hav- 
 ing them reported to his advantage in one particular place. 
 But, if he did, as it was a mixi d company, and no fecrecy 
 ncccflaiy, 1 have a right to tell the world the flory; and 
 yet I with, with all my heart, that his civility may not 
 be thrown away, n< r the courtlinefs of his difpofition long 
 lie unheeded. As to the thing itfelf, it muft ftrike any plain 
 man that the beginning of a feffion becomes as certain 
 and notorious from the King's coming to the Houfe, fend- 
 ing for his Commons, and his fpeech, which all appear in 
 the printed proceedings of the Commons, with the day- 
 prefixed in latin, as it is poffible. This is fomcthing rcalj 
 whereas the bill prepared by the Cleric is nothing, for it is 
 never pafTed into an act, nor heard of afterwards ; and it 
 is only made u(e of as a mere type or fymbol, to keep a- 
 live the right which the Commons claim of going 1 
 their own bufinefs before they go upon that which is point- 
 ed out to them by the King in his fpeech, having in fact 
 generally none of their own that is ready time enough tor 
 the purpofe. Now, nothing in the wjHd could have been 
 a flrongcr proof of the excrcife of this right, than the giv- 
 ing a preference to the complaint of their own member to 
 a meflage from the Crown ; whereas, nothing could 
 feemingly invalidate this right more than the proceeding 
 upon the royal matter before that of their member, and 
 
 efpe- 
 
r os ) 
 
 i , there fhouM be not oi\\- a doubt, i 
 
 tainty, that liis wa firft mov< m th principle that 
 
 pi. of 
 
 fo much ponfequeoce to the c< mmurWty, as the relief of 
 its rej < ntativc ■, from an uc lot 
 
 d their du;\ m without it ; for the parlia- 
 
 ; cannot be fret , ev< city and borough 
 
 I without it ; and for this 
 would im. (hould be ti buu- 
 
 ) . being punted a;.d appearing in i 
 
 • in ol th( ark- 
 
 certain, as tlu ..y bill what* \ 
 
 I 
 that e * when a parliament is called and does not fit, and is 
 
 . of parlia ent palled or judg- 
 <c ment given, it is no feflion of parliament, 
 *' vention •>'' wherein is not on.' word touching the nc- 
 :mg a bill to eive a certain con icnt 
 
 r ^y io 
 filly a thing ; for I do not fee hov >m- 
 
 me; . ,• hi i n made or refutation 
 
 come to ; anJ if thr . ;ovc quoted be what is 
 
 of a cafe which docs not at all apply to the 
 prefent queflion, becaufc it fuppofes a cafe where no a£t 
 at all is puffed or judgment given ; and no ir.au on this 
 fide of St. George's channel thinks of inquiring after the 
 commencement of an a& that nevei exi a matter 
 
 iicccflary for the cour | .ice to know. Moreover, 
 
 the title of all at!- printed, the time of the ex 
 
 mcnccmcnt of the feflion when they pafleJ. But, I have 
 frequent! . . • lat where 
 
 operates more flronglv tnnn th 
 
 right, men even oi decency and -.ion will flip 
 
 into /(range ab fur dies n >w 
 
 the true bottom of the . cy Icaft intend it. 
 
 iNo ti. lining or education will ei ittfe mind intirc ly 
 
 to hide its littlenei : of an attentive obferver* 
 
 ', . lort, a mi . • . . by way 
 
 of c >mpl \A\S it I e of 
 
 not he 
 
 \ thy any ferious where it not a little charac- 
 
 ter), i nly <■( the pcrfon, but <t the times, wh n 
 
 loo much rcfpecl can- 
 
 b) any man, as an individual ; 
 
( 99 ) 
 
 but, it ill fuits with the duty of reprcfentativrs of the 
 ilc to be fwayed, b, any motives of perfonal nlp-cr, 
 to part with a jot of their own independency and dignity, in 
 their corporate capacity. In truth, I fuppofc, no in/tance 
 of the kind ever happened in our Houfc of Commons, or 
 ever will. 1 do nor, however, meat] to f.iv, that men 
 who advance fuch doctrines may not be of ufe about a 
 Couit; hut, being formed in a prerogative mould, they 
 can never be brought to act fairly by the people, let the 
 ground be ever fo good 3 for they cannot find in their 
 hearts to fpeak what may be capable of the leaf! interpre- 
 tation to their difadvantage, and every now and then will 
 drop fuch expreflions of candor and moderation, and fo 
 qualify what they fay, for the fake of being civilly report- 
 ed el fc where, that they enervate all oppofition, and by 
 their fupplcnefs frequently lofe fomc great point of liberty, 
 that might otherwifc be obtained for the public. Being art 
 old fellow, and recalling to mind the otherguife fpirits 
 that ftrugglcd firft lor an exclufion bill, and when that 
 proved impracticable, {till went on, and, at lad, brought 
 about the glorious revolution j I fancy I hear old Britannia 
 call out to thefe tame, tcm-orizing fpirits, thefe fcholars 
 of mere worldly caution and ceconomy, thefe Hanoverian 
 tories : You do me more harm than good upon every real 
 trial ; your parts are not extraordinary, nor your learning 
 lingular ; your fpeech is long, but neither forcible or pcr- 
 iuafive, and you have not a grain of true patriotic resolu- 
 tion : M Law in fuch mouths is, in fact, like a' fword in 
 " the hand of a lady, the fword may be there, but, when 
 <* it comes to cut, it is perfectly aukwark and ufelefs ;** 
 depart in peace, leave me to myfelf, and return from 
 whence you came ; I never afiied your afiiftance, and had 
 been better without it, 
 
 Nan tali auxiliO) nee defenforibus ijih 
 Tempus eget. 
 
 A man may in truth, write moderately and meritor'- 
 oufly, in behalf of the government, enforcing new laws of 
 forfeiture en the fubjed, who never will, no more than 
 any of his name, famoldn up ipirit enough to fpc.k plain- 
 ly and boldly, at the hazard of his intcreft, let liberty in 
 general be ever fo much cbn< ertied, or his own fortune be 
 ever fo great, or his expectancies ever fo vaft. 
 
 Thc.-r 
 
C wo ) 
 
 There rs of late fuch a lack of what arc called public 
 nnii, thai I am perfuaded there are many gentlemen who 
 
 would deem Locke OH government ■ libel, were it now 
 published for the firfl time, inftcad of being reprinted* 
 The 1 rincs leem to be eftablifhing themfelvea every 
 
 day | and Tories (pring up every hour, like toadftools in 
 the root of an old oak, that is Iprinklcd by accident with 
 a little water. I remember to have heard a Scotch I 
 who piques himlclf too upon law, and who had a brother 
 that was high in the profeffion, declare, before a great 
 auembly, that His Majefty held his crown as free as any 
 of his anceftora ; for every body knew that the laws palled 
 at the revolution, were the acts of heat and violence, 
 and party, and to be regarded accordingly. Whereas, if 
 thefe acts were once fet aftdc, and thole palled in confe- 
 queucc of them, His Majefty would have no title at all to 
 the throne that he now fills, (o much for the benefit of us 
 all. I really fhall not wonder in a little time, to hear 
 hereditary ri:;ht talked of again, and then it is but one 
 itep more to the old doctrine of jus divinum, and paflivc 
 obedience. Now, I chufe to have his Majefty's throne 
 remain fixed upon its only folic! or durable foundation, an 
 act of parliament. 1 defire to fleer through the tern 
 and eaiy channel of a legal conftitution, and a limited 
 monarchy ; without being demolifhcd on one fide by ar- 
 bitrary prerogative, or perpetually agitated on the other 
 by the tumult and faction of a popular and republican 
 date. 1 am jealous, I confefs, of all innovations, and hear- 
 tily wifh the prefent conftitution may laft ; without going 
 fo far as a late great financier, who is reported in his very 
 laft moments to have laid, " for God's lake let my ton 
 * k have a tutor who is a gentleman and a fcholar, and 
 " above all things a true Whig : This poor country, I am 
 " afraid, will be over-run with Tories, Scotlinen and 
 M Jacobites." Now, altho' 1 am perfuaded that gentle- 
 men of the laft description, mould they chance their idol, 
 yet wiil never quit idolatory itfelf, but transfer their pro- 
 iftrate woifhip, and implicit adoration, to the golden image 
 they adupt ; yet 1 feat them not, in this kingdom, at 1 aft, 
 under the prefent Sovereign, who is by all nun moil juftly 
 ellcemcd for the excellence both of his public and private 
 character in war and peace. He dees not wdh to have his 
 
 fubjedi addrefi him, in the langw I livinjty, as ms/i 
 
 adirablt, or to have them vow a Ufboh lift of 
 
 aim. Of 
 
( 101 ) 
 Of this, howeier, I think every Englifbroart rr~ 
 
 nflurcd, that the tv.i) real pillars of our conftitution are 
 Parliament- and Juries, an i that, in order to be what 
 they ought to he, the former mult ' :i Jent of the 
 
 Crown, ami the hitler of the Judges, let the privileges be 
 what they will that arc requifite for this. 
 
 With refped to men, 1 have as bad an opinion of many 
 that arc out, as any b Jy can have of the motly ac! 
 that are in ; but whenever the Crown-patentee, or iMafter 
 of the Theatre, fh all fubltitutc other performers, I hopo 
 fome difinterefted men will lay hold of the occafion for 
 making fome refolutions, and perhaps fome laws, that will 
 be a fecurity upon record for men much younger than my- 
 fclf, and for all our pofkrity- I have thrown out my 
 loofe thoughts from a true conftitutional regard for his 
 Majelly, whofe crown can never fit eafy when bis people 
 are difcontented ; and if, where all men allow the grie- 
 vance, no remedy is applied, I am really afraid that the 
 time may come, which a preat orator once painted, when 
 his Majefty will not be able to fleep at Sf, Jarre >'s for the 
 cries of his inured people. I protcft that my mi^hbours 
 every now and then come about me, knowing I was once 
 of the law, to afk what next will be done? Is it true, 
 Sir, that fuch a thing has happened, and that they intend 
 to do fo and fo ? What is praififed againtt Wilkes (a fad 
 debauched dog that ufed his wife ill 'tis true) may be pra&i- 
 fed againft us? Pray, Sir, what advantage is there that 
 art, treachery or power could either invent, purchafe or 
 command, which has not been drained to the utmofr, in 
 order, as it feems, to compafs indecifion only, and that in a 
 very plain matter, of univerfal confequence ? We none of 
 us now know any more of the law about libels, warrants 
 and commitments, than we did before; one man fays one 
 thing, and another man fays another ; and as to the letters 
 in the Gazetteer, pro and con, we can neither make head 
 or tail of them ; there is fo much faid on both fides, and 
 fo many diltinc"tions made, that we are never the wifer for 
 what we read ; if we could fee but a (hort rcfolution 
 in the printed votes of Parliament, we fliould all of ui 
 know what to think upon the fubjccl: ; but great men are 
 taken up with their party difputes, and never conlider us 
 common tradefmen and inferior gentry at all. To wh ch 
 I can only fay, that they muft not io foon lofe their pati- 
 ence; every thing, I make no doubt, will be properly fcttl d 
 
 O by 
 
( 102 ) 
 
 bv and bv, (even the Hi h Stewartttnip of CambrM|g*0 
 I have heard that the Attorney General (bould fay, he was 
 in hopes of hi Jemn determination, n 'it, 
 
 •v po lit . in feme of the 'Meat courts 0? law, 
 ips from Lord Mansfield; and that I thought it « 
 very probable the Parliament would relume the confiaVtra- 
 
 tion of the fame matt< r, and tome to fome fatisfaclory re- 
 solution thereupon; that the Miniftry oppofed fuch a re- 
 solution the lalt feffion, becaufe, perhaps they might be 
 glad to have a little more time to undciltand the matter j 
 they might not, perchance, be men of very ready parts or 
 quick cenius, and they were too honeft to decide any 
 thing before they un 'eritood it ; and that their having votetf 
 for the potting it off merely tor four months, had the ap- 
 pearance of the utmoft moderation ; they had, betides, 
 many weighty affairs in hand, and might poflibly be a 
 little prolix in their nature ; but I w..s fure they meant 
 well, and had great realon to believe that they thought as the 
 left ot" the world did : in fliort, that there was no room yet 
 lor people mufmuring, it was not quite two years ago 
 fince the principal affair had happened, which was nothing 
 at all in matters of law. 
 
 The Attorney, Indeed, ;:ivcs another turn to the matter, 
 but I had not read his pamphlet whin 1 made this anfwer 
 to my neighbours. He fays, th it he really does not think 
 the matter of much confluence ; he allows the people, in 
 
 neral, were very uneafy and alarmed ; but then he de- 
 clares, that, till he had informed himlclf better, he " cx- 
 *' peded to hear a regular fyfkm laid open, by which an 
 " arbitrary administration had endeavoured to overthrow 
 •< the bulwark of our liberties, that the privileges of Par- 
 41 nufrt had keen darthgly violated; that fome innova- 
 te tici! had been attempted to annihilate Magna Charter 
 M the hhbtat C&rpttS, or fome oth-r pillar of the confli- 
 *' tution ; in fhort, that feme man had been opprefied bv 
 « arbitral'/ violence, tyranny, and pcrfecution." (Hie 
 
 • r. ilion indeed is, have left out 
 
 that word as pcifcctlv unn-.v ll "try, becaule a g uflty man in 
 this country M not to be knocked on the head, or tumbled 
 into the river in -lilty bv due 
 
 courfe of law, and .' t" be executed as the 
 
 |udttnent i i the law ll: \ ry i e putting 'of any 
 
 oncro death, Without the inteh tl< n or Unclion of law, 
 will br, at loy time, and m any nun who dues it, tyr 
 
 atbi- 
 
( io 3 ) 
 
 I itrary violence, and murder.) Now, I need fay nothing 
 more to the Attorney upon the cafe oi" the man he points 
 f.», than I hive done already, hut, as to the other parts 
 of law which he mentions, I will very fr.inkly avow to 
 him, that I think them very capital rights of an Englifh- 
 maii ; and he may fee that I have treated them as fuch, 
 and confidercd them as very materially intucfted, even 
 in the cafe of the very man we have been converging about. 
 However, to oblige him, I will tell him fomc few of my 
 thoughts upon thefc points, for him to think of by himfelf, 
 or, if he pleafes, to talk over with his fuperior ; altho' 
 I (hall only touch them flightly in paffing, and not 
 launch out into all that the fubjedt or the times fuggeft to 
 my mind. 
 
 I have ever regarded the Habeas Corpus, both at Com- 
 mon law and under the act of Charles the Second, as the 
 great remedial writs for the delivery of a freeman from 
 unjuft imprifonment, cither by private violences or public 
 tyranny, and even from juft imprifonment in every 
 bailable cafe. For which reafon, I hope never to fee fuch 
 a writ trifled with ; and that if any lawyer fhould advife 
 any officer of ftate to make a fallacious and inadequate 
 return, by faying the prifoner zuas not in his cujlody, when 
 jn truth he had been feized by his order, and in his hands, 
 and was but juft gone from thence, by his having fent 
 him to chfe confinement, where no perfon could after- 
 wards polfibly get at him, in order to ground an applica- 
 tion for a fecond Habeas Corpus ; 1 fhould hope to fee 
 the vengeance of parliament, lb foon as the fact was known, 
 lay hold of fuch lawyer, and, by its order, commit his 
 body to the fame fort of durance, and then come to a re- 
 folution, that fuch return was a deliberate mockery of 
 juftice, and a mod audacious perverfion of the great law 
 of Habeas Corpu?, and make the fame the ground-work 
 for a new declaratory and explanatory act, compelling the 
 man who was ferved with the writ, to fet forth what he 
 had done with a prifoner, or what was become of him, 
 if he had at any time been in his cuftody, and happened not 
 to be lb at the time that the writ was ferved upon him; 
 andlikewiie compelling a Judge (as fome fort of remedy 
 againft chfe confinement) to award a Habeas Corpus upon 
 the fuggeftion or motion of any man, who fhould only 
 fay, that he believed his friend might be fhut up in fuch a 
 place, and that it was impoflible for him to have admillior* 
 •to afcertain the fact himfelf. Indeed, it llrik.es me that 
 
 O 2 fuch 
 
( i©4 ) 
 
 fuch a r. turn M that before dated, ir faUc and untrue, I 
 whether! keep a man myfelf, or fend him tot 
 <,:h mufl confi lei him a> ilill in 
 
 i | : r/ /•<•>/<•. 
 
 I h< 
 that ■ urt of criminal procd - '''ho 
 
 deny, or delay, the ifluing one ol th< <• writs to any 
 i ...n who a; , being a • hi to which 
 
 the rubied ia intitli ' I r aiking, without any affid 
 \ h ttfoeven In many cafi for ei 
 
 >le for the party eii 
 t .' i, ak • fend a le ter, or make an affidavit, 
 
 and confequcntlv, if either be required by the cour;, ic 
 will be a virtual denial of the writ, and a meant ot 
 i. ■ i.. I; ia~Corpus-a&. The requifition- of an i 
 fidavit puts it li :ewif< in the ;. werofa Judge to object to 
 its form or contrnu, and to fay the lame is not lull 
 
 ughj and yet, before another. can be lud, the p 
 gutky of th • on being apprized of what baa 
 
 , remove the prifonetj 
 IP j, ;> • oth l mm into fomc othei hands 
 
 nav, hurry him into a (hip and cany him to the tail or 
 IVefl '..dies, and then all efs will come 
 
 too late, and be in vain. An application to the Kit 
 Ben h for an H ; C rpua in term-time, ufed to be 
 efli ber, a mere motion of courfe. "Our 
 
 • . rocefs of the law, as well as in 
 4i j dgment <i the law." 
 
 It would, however, be more injurious to liberty, to 
 
 1 I . J u ft ice, contrary to I e ot his 
 
 p:c i :-'C great i Charles the 
 
 id, to the tingle cafe oi .1 lent to prifon, or rc- 
 
 iiramt by a li r, for crimin ninal 
 
 ma:- I 1 .vas re( li rty, without 
 
 rime, by a man n my 
 
 authority of law "out any 
 
 , ij fu< h red 
 .-. fa fj iken up by a Si 1- 
 
 b J 01- 
 
 I away to the Sa- 
 voy, 
 
 ould be (till worfr, if 
 
 ai y Chic I I : iling the . yed 
 
 Jor, 
 
( ">5 ) 
 
 for, fliould force the party into the taking of a rule 
 the imprifoncr, to flicw caufe why he detained 
 the porfon imprifoned ; and ihi. lad miferable remedy 
 would dill be rendered In*! adequate! it the perfon ap- 
 plying was obliged to give notice <>t fucfa rule to the Soli- 
 cit i of the Treafury, aa well as to the peribn in whole 
 cuftndy he was, and alfo to thofe who put him there; 
 and even this again would he dill made more grie- 
 vous, tedious and precarious, if the Judge fliould be cri- 
 tical upon the affidavits of" the fervice of notice, and be 
 extremely rigid in its being mod punctually fet forth, 
 in every the minuted circumltancc. What a noble field 
 for delay, evafion and final difappointment, would this 
 open to every committer of violence; "andhoweafy would 
 it be, in the mean time, to dodge the man imprifoned 
 from place to place, and from hand to hand, fo as to 
 render it utterly impracticable for any friend to procure his 
 tnlargemcnt. A bold and daring minider, might thus 
 eafily tranlport a troublefome prating fellow, to either 
 India, long before any caufe could be fliewn upon fuch a 
 rule. I am informed, "that a freeholder, preded for a 
 ioldier under a temporary act of parliament, was two years 
 obtaining his liberty under one of thefe rules ; altho' he 
 did his utmod by money and counfel during all the time, 
 to pufh on the hearing of his cafe upon the merits : Indeed, 
 he had the great good fortune not to have his regiment 
 removed farther than from Falmouth to Carlifle, in the 
 whole time; for, had it been ordered abroad, 1 do not 
 fee how he could have had any relief, until the end of the 
 war, before which he might have died of difeafes, or been 
 knocked on the head by the enemy. 
 
 .But it would be even dill much worfe, if any 
 Judge fliould abiolutely refufe to grant an attachment for 
 difobedience to a writ of Habeas Corpus iflued in the vaca- 
 tion, in lieu thereof direct another writ to be taken out, 
 and fliould entertain doubts for weeks together, that a Peer 
 was privileged from being attached by the Kings-Bench 
 for difobeying their writ, treating the court with opprobi- 
 ous language, and threatening to fhoot the perfon who 
 executed it, if he did not withdraw from his prefence; 
 " let the Judges touch him if they dare, perhaps he 
 '-' might by and bye write a letter to them ?" and if the 
 Houle of Lords fhould be acquainted thereof, and intire'y 
 renounce any claim to privilege in fuch cafe, the fame 
 
 Judge 
 
( io6 ) 
 }uJv;c fhould only then order a thin] writ of Efabeai Cor- 
 pus to bl taken out, and with very ulty be pre- 
 vailed upon to let an Ml lchment accompany That, and not 
 without giving particular di - that (uch attachment 
 fhould ill until i very other means of obtain- 
 moe with the faid third writ ineffec- 
 , for the court would take notice of the perfon who 
 fltoold o ther w aya prefumc lb to do ; declaring withall, 
 that the only reafon for granting the attachment i ven then 
 u.. ., the near ej pi ration ol the- term and the want of au- 
 thoiitv in a 1 vard anv in the vacation, and trv 
 fore it w..> necefTan : n force this writ by a more ex 
 tlitio | Method tn.in 11,, • I ■■'", before the fta 
 ulcd to be, or than the words of the ftatutc Well 
 to require. 
 
 What would the Attorney fay, if any Chief Juftice in 
 conceit with an Atte rmv General) at the rcqueft of a 
 foreign Kmhaflador, fhou d fend a verbal order for dttaift* 
 ing a" man twentv-toiu h'-ur-, and for ("citing his pa ( 
 becaulo he was printing fomcthing which his 1 \e H ncy 
 did not liice ; and there ftttouW never afterwards he any 
 rant granted, information filed, or profecution intend- 
 ed ; the Vole en I of the KmbalVador being anfwered by ga- 
 ting noiTciTion of the | 
 
 r a violent oppofition in the 
 (j an ariftocratical aT, to prevent un- 
 
 equal n.at:: binder property as much as pof- 
 
 fiblc from diftulin •., by rendering all marriage bctv. 
 
 .-able, unlefs upon certain con- 
 in** contra v to the principles of love, liberty, po- 
 pulation and eon - irhich all require, that as little 
 fhould i n matrimonial connections or 
 
 w... to endeavour to 
 c | . : ire had .'one, and to 
 
 ( . i emed within it, 
 
 .vh i had fled thither for the 
 to their 
 
 ■in. cms from 
 
 the b*noh, i ' lu ■" nurri 
 
 having 
 
 im? 
 
 ,, .... | in tlr • kingdom fho <ld be 
 
 : in :' i • • 
 
 n, ai he 11. 
 
 . i in hisMa 
 
 l.-iii-, 
 
[ io 7 ) 
 
 name, lawfully order the Mayor of the town, in whofe pii- 
 Ion inch felon was, to difcharge him without hail or main- 
 prize, or even the confent or knowledge of the prolceutor, 
 in orJer to prevent thereby the foldicr horn being tried by 
 our laws for fuch felony ? 
 
 What would the Attorney fay if any Chief Jufticc, con- 
 trary to the ulagc of Judges, who aie to have noeara for 
 any thing that is to corne in judgment before them, until 
 the fame is brought on judicially, fhould, weeks before any 
 crown trial, officioufly fend for the proceedings, to lee whe- 
 ther they were legal, and, upon dilcovering an error on the 
 profecutor's fide, fhould fummon to his chambers the At- 
 torney of the other fide, and tell him he mult confent to 
 the letting right of this error, to the end that the 
 tenor of the pleading might be fuch as judgment could be 
 pronounced upon; and, notwithstanding the Attorney 
 lhould protelt lie could not confent thereto upon the ac- 
 count of his client, and that the fame was a criminal profe- 
 cution, and that fuch alteration of the record was not war- 
 ranted by any adjudged precedent; fhould neverthelefs ar- 
 bitrarily direct it to be done, without either having the 
 point debated before himfelf by council, or brought on be- 
 fore the whole court for their opinion ; and that the de- 
 fendant, being found guilty by the Jury, fhould be de- 
 prived, by luch amendment, of taking advantage of the 
 error aforefaid, in arreft of judgment, which he might 
 otherwiie have done, and the fame would have been fatal 
 to the profecutor ? 
 
 Or, if any Chief Juftice, notwithstanding the maxim 
 forcmentioned, fhould make it a practice to fpeak with par- 
 ties and to fend for Attornics, and talk to them privately 
 about their caufes, and even read the briefs in them, in 
 order to fee fuch fecrets of caufes as are only confided to 
 council to be managed as they {hall think proper, and by 
 that means lhould frequently come into the court with a 
 bias upon his mind? 
 
 Or, if a Chief JuiHce fhould tell a Secretary of State, for 
 him to tell a foreign Minifter, that he need not be uneafy 
 about fuch a particular man, for the term would come with- 
 in three weeks, and that then be fhould be able to give 
 judgment againft the man (a libeller convict) and that be 
 intended to let a fine of 500 1. upon him, and to fentence 
 him to f wo years imprifonment behdes, if he did not make 
 otf; and that if he did, there would then be a riddance of 
 him that way ; fo that his Excellency might be perfectly 
 eafv about him in all events ? 
 
 Or, 
 
( id j 
 
 Or, if any Chiel Jufticc, upon the affidavit of an unli- 
 cenfied Ale»houat Keeper luppotrtad by a great l*or) t..mily, 
 lh. uld entx i lain a complaint, irrwnplMitil with no in 
 cation of corruption, againit a Juitice of Peace, who bad 
 
 . upon a matter within his jurifdiction, anil had only 
 iIlJ that difcretion which an act of parliament gave 
 him, and where nil power was fummary and final ; and 
 fhould at firlf threaten a rule for (hawing caufc why an In- 
 formation fhould not he awarded againit luchjufticeof Peace, 
 And mould at laft make a rule upon him to let forth his rea- 
 feos far not granting a licence, by way of terror, to hang over 
 his head until the next licenhng time fhould come round ? 
 
 Or, if any Chief Juitice, with a view to the introducing 
 a fpirit of arbitrary and diferctionary determination in 
 courts of law, under a Ipecious pretence of equity, fhould 
 from the feat of juftice declare he delircd to hear of no 
 that was determined above 50 years ago? 
 ( hr, if any Chief Juitice fhould, by folemn but unncccflary 
 givings out Irom the Bench, endeavour to blalt the repute of 
 Juries with mankind, by pronouncing that the trial by jury 
 would be the very worft of all, were it not for the controul- 
 ing power of jud^C' , by the award of new trials and the rc- 
 confidcration of verdicts, and that, indeed, it could never 
 have lubfifted had it no: been for luch controul, by realon of* 
 the want of capacity in jurors, and the changes of the times? 
 Or, if any Chief Juitice (hould arbitrarily order a Juror to be 
 let afide, without any caufc of challenge, and forbid his being 
 ever put upon another panel, only hecaufe fuch Juror had 
 withftood his dilatory opinion in a former trial upon a mat- 
 ter of fact, whereof, by his oath, he was to form his own 
 judgment* ? 
 
 Or, if any Chief Jufticc fhould arro?nte to himfclf at 
 Pr ins, the fepaaate provinces of Judge, Council, and Jury, by 
 
 catting fln-rt the one, and impofing his own fenfe <>l things 
 upon the other, and, il upon any occafion a verdict contrary 
 thereto was pcrfifted in to the laft, fhould imperioufll 
 mi 1 nflatutionel'y demand of the jurors their rc.ifons for the 
 fame ? 
 
 Or, if any I ittnfellor (hould, by way of in- 
 
 taoducing an arbitrary government in the plantations* lay it 
 down t.. Coun I >a a principle, that En*UJh fettlers, h\ 
 
 nie , thereby loft 
 
 ' I 1 the reign of " < ' (c he 
 
 1 x ; for 
 1 Jury oi ■ 'hrm 
 
 " WOUl 1 
 
 I Li - - j - 
 
 the 
 
r ^9 j 
 
 the privileges of Englifhmcn, and the hencfit of the Englifh 
 common law, an«l were to be governed ever after by the 
 charter of the King, and by prerogative, without the in 
 tervention even of a Britijb parliament, and that the board 
 would fudge them accordingly? 
 
 i lay, if any of thele things fhould happen, I fhould in 
 my turn " be glad to know" what the Jtiorvrv, a; a Law- 
 yer, would lav to them ; I will tell him very faiily, that from 
 fuch premises, 1 think, old as I am, I could draw up a ftrong 
 fet of articles : for, what in a common man is a breach of 
 the law, is alio a breach of trull in a Judge ; and where he 
 obflrucls juitice and changes the law, it is trealon at com- 
 mon law. It would, indeed, be very unhappy for the fub- 
 jecls of this country, if there were a man to whom any one of 
 thele things were applicable : and the Lord have mercy upon 
 the nation, if a time mould ever come, when they fhall all cen- 
 ter in one and the fame man. Being got thus far, I will afk 
 him, what opinion he would have of the veracity of a Judge, 
 who, having tried an old gentleman for perjury, where there 
 were four pohtive witnefles for the profecutor, to the words 
 being fpoken which were charged, and which were probable 
 in the nature of the cafe, and four witnefles for the defendant; 
 in fhort, his followers, who fwore that they were very near 
 their mafter, and mull have heard the words, had they been 
 fpoken, and they heard them not ; and that the Judge there- 
 upon found it neceflary to labour to the Jury the character 
 and fortune of the defendant, and the utter improbability of 
 his having denied upon oath, his having uttered the words, 
 had he really uttered them ; and that after a good deal of hc- 
 fitation and doubt, the Jury at laft acquitted the defendant : 
 I fay, after fuch an acquittal, what would one think of a 
 Judge, who fhould, in a public aflcmbly, wantonly and un- 
 necefTarily mention this cafe, and declare there was not the 
 leaft colour or pretence for the profecution I What the At- 
 torney may fay, I know not, but I am fure, for my own 
 part, I would never afterwards give fuch Judge any credit 
 for a fact he fhould advance upon his own teltimony only, 
 however glad I might be to hear his reafoning upon any fub- 
 jccl: whatever. For, ingenuity is one thing, and fimple tef- 
 timony another, and " plain truth (I take it) needs no flow- 
 ers of fpeech." 
 
 It is the prefervation of the conftitution in its due order 
 which mull continue us freemen ; nothing elfe can. And 
 whillt our laws continue unprofaned, lawyers will of courlc 
 be confidcrable, their profeifion honourable. But when ci- 
 vil liberty dies 3 by foreign or domeftic invafion, the vocation 
 
 of 
 
r "° ] 
 
 of a lawyer will foon become equally mean among us, to 
 what it actually is now in all foreign countries, where the 
 monarch by the lword and the army lays down hifl will lor 
 law, and breaks through the forms of courts and their rules 
 of julticc whenever he pleafes. The true language in this 
 country is that of a laic famous miniltcr, who laid he would 
 have it be known throughout his Majefty's dominions, that all 
 men were itill to be fubordinate to the civil power. F or which 
 reafon no greater misfortune can befal a nation than to have 
 a \'-ifatile, temporizing, unprincipled Grand Juliiciary, nor 
 any more general blefling than an able, uniform, firm and 
 incorruptible Chief Jufticc. What therefore mult be the 
 weaknefs, or the thoughtlcllnefs of any minilter, who fhould 
 endeavour, in public dilcourfc, to lefien the reverence ot cve- 
 r\ Knglilhman towards Judges in general, by treating the 
 molt folemn adjudication of a fupremc court of law, delivered 
 upon oath, as he would the profligate proceedings or aban- 
 doned votes of a motley crew of unfworn and ignorant elec- 
 tion-men ? or who fhould wantonly, in a great and ceremo- 
 nious afTembly, ftart a vulgar idea that tended to degrade any 
 one of their judicial determinations to a level with the fcoun- 
 drelly converfation of the liverymen of Peers } I will ven- 
 ture to fay, that by debafing the reverend Judges, you tend 
 to raife a contempt for all civil government ; and when the 
 veneration for Judges and Laws fhall once fall to the ground, 
 neither Juries nor Parliaments will long furvivc, but they 
 will all be delivered up to the mere difcretion of the Prince, 
 who will loon find it much eaficr and fhorter to govern by 
 his own will and pleafure, that is, by a privy council and a 
 ftanding army, and thuj levy, without doubts or difficulties, 
 whatever money, or execute whatever orders he fhall in his 
 wifdom prefcribe. One principal drift, therefore, of this my 
 htter, ii to let mankind fee from l.'.its, who are, and who 
 have been, when in power, in their fcvcral departments, the 
 defenders of this noble and antient conltitution, and who the 
 pervcrtcrs, violaters, and impugnera, of the civil rights, laws 
 and privileges, the people ..nd their representatives. 
 
 'I he jjoodnels of his prefent .Majclly will prevent any gteat 
 
 excefi in his time altho* tl : laws (hould be fo prorrratedi 
 
 to render it pn thout puflHhment i but, who can 
 
 anl'wer for hi, fu< t, when once 
 
 i he law can be i i (try* for any 
 
 conning Prince to Bndoui rreafurvj an 
 
 Attori foi I ■)";- 
 
 te face of the 
 fubjr&t, until th'y fhall all be ground unto powder. 
 
 It 
 
( III ) 
 
 II is an inglorious, a ddhrai tcning, and a disadvantageous 
 thine, to have a fuecefsfal war followed by an inadequate 
 or infecure peace ; hut the prefervaxion of conqu fl i is note 
 
 by any means, of l<> home a concern to any common- 
 wealth, as the prefervatfofl of its conftitution. Hick' 
 of the latter, iwc the moft mcl.inch ]'y an I fatal forerun- 
 ners of abfolutc flavcry ahd ruin. And nothing can ag- 
 gravate the mifcry of fuch a view, but to fee the fame 
 men the invaders of domeftic liberty, who have peer) the 
 ccders of foreign acquisitions. 
 
 The Attorney himfclf has forced mc to thefe re- 
 flexions, for he concludes with intimating that we arc 
 " threatened with evils, which our united flrcngth c;.n 
 «« fcarcc avert •/' by which he rmift mean another war. 
 Now, if this be fo, I am heartily forry for it, from the 
 bottom of my foul, and do therefore mofi finccrcly concur 
 
 with him in afking " In this fit Oration, is it a time 
 
 " for private jealouftes and private rhtcrefts to confumc 
 " the interval that peace affords us ! To fow the feeds of 
 * ; diffidence, to revive the difrinfrions of party, and wan- 
 " tonly to found the alarm Of privilege and prerogative ? u 
 In my confciencc it is not, and what minifters can mean 
 n.- lb doing, if they really intend the fervice of their rovd 
 ma'der, I cannot conceive. J vow to God I am afioniih- 
 ed at it. 
 
 Nor (hould I have thought of faying one half fo much 
 upon the fubjects of this letter, were it not to vindicate 
 the laws and the conftitution from the attack made upon 
 both by The Defence of the Majority. The main intent 
 of which is, " to alter and fubvert the frame and fabric 
 " of this Commonwealth, by endeavouring to perfuade 
 tc the confeience of the fubjects, that they are bound to 
 " obey commands illegal." 
 
 1 will now take a final leave of the Attorney, Having 
 had proof enough of his fairnefs in argument, and his mo- 
 defty in aflertion ; but, lince he has talked io much of our 
 diftreffed fituation, both foreign and dome'iic, and of the 
 Hoofe of Commons, 1 will apply to the prefent fubje«5t, 
 what a great man '*, a Tory too, faid on another occa- 
 iion, with a change of three words only. 
 
 " * I Jfr f 
 
 * Sir WHIi.im Wyndham, father of the hte E of Element, and nf 
 Mrs. George Grenville, and Chancellor of the Exchequer tor the To- 
 rits under Q^iecn Anne. He was committed to the Tower for btgb trca r sm 
 
 io 
 
( H2 ) 
 
 u SIR, In p.1! the variety of company I have kept, I have 
 i heard afingletnan without doors pretend to iultify 
 nJ when the fentiments of particulars m 
 
 inch, I did n ., whet] I tbef 
 
 in a body, to fee a majority vote tor it. 1 . A be 
 
 owing to one of there caules : eith< r gentlemen u 
 convinced by tin- ar rument made ufe of in thtr H 
 
 re, 01 there aie other methods 
 of c • befides reaibn. I am not at liberty to 
 
 fuppofe it the latter, therefore I mult fuppofc it the for- 
 mer. Hut this Sir, i . to me a very melancholly conftdc- 
 ration ; for, tho' I have attended with the utmoft regard 
 to all that has been (aid upon this meafure, I have not 
 heard a (ingle argument in its favour, that has had the 
 lead weight with me. I mud now conclude that I do 
 not underhand rcafon when I hear it, therefore I am 
 rcfolved to retire. However, I n.uft beg gentlemen 
 to confidet the conferences. This adjournment is in- 
 tended to convince mankind, that the measure now un- 
 der c ration is a reafonablc and an honourable me. - 
 furc for this nation; but if a majority of fourteen, in 
 fuch a full Houic, ihould fail of th.it i'uecefs ; if the 
 people (hould not implicitly rcfign their reafon to a vote 
 of this Houfe, what will be t! uence? Will 
 not the Parliament lofe its authority ? Will it not be 
 thought that, even in Parliament, we are governc 
 
 ? For my own part, I will trouble you no 
 
 , but with thele my !ait words, ** 1 fincerely , 
 to Almighty ( ! 10 lias (o often wonderfi 
 
 i the c kingdoms, that he will gracioufly continue 
 l.i ji r iiietu, by preserving us from that 
 
 impending danger which threatens the nation from 
 without, and I nee wife that impending dangei which 
 threatens ou; eonftitution from within." 1 am, Sir, 
 
 Wtfimn/ttr.i The Father of Candor, 
 
 17, 1704. 
 
 L- Natale Sot 
 
 ;-, 1-1^, H id " I r ihc Habeas Corpui Ail in 1716; 
 
 ■ . ' ' : 
 
 wlirr, t>iou,-Kt up b) : 
 
f "i ] 
 POSTSCRIPT. 
 
 I SMALL here, in very few lines, make feme reply 
 to the Defender in his Poftfcript, and to a late Cmtf* 
 derer, premifing that I do not think a ftater of facts, 
 from whence a baJ character iffucs, is a calumniator, 
 but an hiitorian ; and finccrely hoping (notwithstanding 
 the Defender's threat) that no writing of mine will give 
 cccafvi to the la/i dying fpeech and confejfun of the esr./iitu- 
 i'lon '*, mould he and his party have any intention of giv- 
 ing the finishing ftrokc to it. 
 
 I will now aft the Defender, whether the ftar-cham- 
 ber did not exilr. before the reign of Henry the 7th, 
 altho' it were little retorted to ; and whether, before that 
 time, it was not the King's attorney, or coroner, in the 
 King's Bench (that is the matter of the Crown office) 
 who hied informations at difcretion ; and whether, That 
 was not the grievance intended to be redreffed by the 
 ftatute of William the 3d : and, after all, how the na- 
 ture or oppreffivenefs of an attorney generals informa- 
 tion is at all altered, or affected, by the difputed period 
 of its commencement ? 
 
 He fays, " The nature of libels may differ as much 
 " as the complexions of the writers." This I do 
 not comprehend. Individuals of the fame fpecies may 
 differ in complexion, but not in nature or kind. A mif- 
 demcanor is one diftind kind or head of crimes ; libel i; 
 a fpecies under it, and the particulars, or individuals of 
 this fpecies, may differ in fome features from each other ; 
 but, being all of the fame fpecies, or clafs of crimes, 
 they muff partake of the fame nature, or kind. They 
 all iffue from the fame flock, altho' their learning, man- 
 ners and merit, may be different. 
 
 I am equally at a lofs to underftand, how he <c main- 
 tc tains that comparilon of hands is no evidence of 
 " hand-writing in a criminal cafe," and yet infifts, that 
 it " has been always admitted there, as circumftantial 
 
 • Defence of the Majority, 2d edit. p. 46, 7. 
 
 Q. « ani 
 
[ N4 3 
 
 tnd corroborative evidence." If it be no evidence, it 
 catl ,. e or authenticate! Ex nihil* ml fit. 
 
 1 ! fays, he " never met With an inllancc, where the 
 
 «« Houfe of Commons have expounded a point of law 
 lt at that time pending in the courts Mow, by a mere 
 *■ refolution or declaration, which might intimidate a 
 " judge, or prejudice a jury in a caufe actually before 
 «' them." 1 defire him to recoiled, whether an infor- 
 mal in was not pending againft Mi Wilkes for being 
 mthor of a libel (the North Briton, No 45J when 
 prefent Houfe or commons refolved the (aid paper 
 t be a libel (which is a nice point of law in the notion 
 bf the Defender and €»nJuUrtr) and then refolved Mr. 
 the author of it; and whether, afterwards 
 trial of this very information was not had, and Mr, 
 Ity, by a judge and jury r The influence, 
 however, of the faid refolutions upon the judge or jury, 
 
 I r.m not 
 
 (tumbles in the very threfhold, for 
 :s with n mifreprefentatfon of 
 (he point in • by fuppofing tne queltion to be. 
 
 upon the propriety of t > parliamentary regulation of the extr- 
 cife 9/ General Warranto \ whereas the qucflion is, whe- 
 ther the Houfe of Commons cannot with propriety dalart 
 them to be illegal. An act. for regulating the exercife 
 of them mufl fuppofe they are legal, the very thing that 
 is denied, and which no man pretending to be a lawyer, 
 before this author, ever affirmed. He fays, "1 have not 
 
 * I muft tell the I • er, in anfwer to his firft note; the com- 
 
 , that no judex, in .1 
 , ol the record bi tme 
 tl ,. trial < one of the parries in open t 
 
 thing thereon 3 becaufe a | is to be unprejudiced and impartial. 
 
 Tin 1 ition in any chamber would be 
 
 foil* ialont without cor to be 
 
 .,!.:.! after 
 in bit 
 nt in it } I chal 
 i • produi l- one adj ■ 1 I Cu h an alta 
 
 H fo pofition vt' thei ficarioa bt- 
 
 tnd Purport i< grow d 1 ; ilie 
 
 fornv r ii '. una the 
 
 : - . ■ I or 1 in r. For 
 
 i . held to be faincjent, and the other 
 
 " produced 
 
[ ITS ] 
 
 u produced a Tingle legal authority in (upport of the 
 
 " illegality of general warrants," and therefore pre I in 
 " that no authority whatsoever can be found for this 
 " purpofc." A fufficient anfwer to this woud be, that 
 the very fuppofition is drawing into qudlion fir ft princi- 
 ples, which men in a learned profeflion, among each o- 
 ther, never dream of citing authorities for, fuch clcmcn-. 
 tary parts of fcience being only proved by the teachers of 
 Rudiments, or the writers of regular fyftems, who muft 
 both begin ab ovo. Neverthelefs, let him look again, and 
 he will find Lord C. J. Hale and Serjeant Hawkins cited, 
 and not" the opinion of a prefent Chief Juftice" (juftly 
 efteemed of the greateft weight, and founded on the molt 
 unqueftionable principles of law, as it is ; and called for, 
 infilled upon, and reluctantly extorted, as it was, by the 
 jury, who imagined it necellary to he known for regulat- 
 ing the quantum of the damages they mould give.) The 
 citation, however, of authorities was in me a work of 
 mere fupererogation j becaufc it is a confefled maxim in 
 law, that there muft be abfolute certainly in all procefs. 
 Even in civil cafes this is required, where the name itfclf 
 IS neceftary, and any miftake in it is not endured. And 
 yet the injury is not fo great to the character cA' a man to 
 be arretted for a civil as for a criminal cafe, which carries 
 fo horrid an imputation with it. 
 
 The objection to the warrant fo much complained of 
 is, as the Confiderer truly ltates it, on account of the ge- 
 neral defcription of the Offender. .But, if 1 understand 
 him aright, he himfelf admits the proportion, by con- 
 tending in behalf of the warrant in queftion, that it 
 «' contains a fpecifick defcription of a particular perfon ; 
 " that too, which of all others is folely and peculiarly 
 " applicable to him, the cornmiffion of the offence." 
 For, a general defcription is the reverfe of a fpecific one, 
 '* folely and peculiarly applicable to one perfon ', quod 
 convenit foli) non omni. 
 
 Indeed the fallacy of the Confiderer is notorious in 
 this place ; for, he firft undertakes to prove ch; legality 
 of general warrants, but then reafons upon a warrant 
 containing a fpecific defripti ■ oj a particular perfon, , . 
 and peculiarly applicable to him, which is to all intents and 
 purpoles a fpecial warrant, and comes within the alterna- 
 tive I mention, namely, that every warrant mult exprefs 
 
 Q_2 tht 
 
[ lit ] 
 
 :mc or e\ certain deflation of the per [en , which Ipft 
 i \ by the way, will afloid room enough for the ap; . 
 h :ni murderer, tnd prevent every poifible 
 
 failure of j ni'- . 
 
 t, kol me .ilk him, how the ccmmi/Jion of the offence 
 '.-■< the pa/on? Somebody without doubt muft commit 
 the offence ; but, how doea a defcription of the offence 
 ibe that fomebody ? The gentleman has confound- 
 ed himfelf between a fpeciftc defcription of the offence 
 and of the offender. The warrant, it is true, contains 
 ticular defcription of a certain piper, by fetting forth 
 it^ p culiar title, fo as to point it out to every body at 
 frit figbt ; but, I will defy the Conjuierer to fay that the 
 general denomination of Author, Printer or Publijher 
 nown any one mm or individual pcrfon what- 
 ever. A paper 01 book l.ns its title printed in the title- 
 page, and it goes ever) where by that title j but, no 
 . ks about with the title of Author, Printer or Pub- 
 • of tie A rtb >rii . Nit 45, imprinted on his face, 
 is iliat tl lentity in men, this bi 
 
 . ,' by the Chrinian Jnu Surname, or by a delineation 
 and minute defignaticn of then per (on and features, &cc. 
 fuch as we fee militai deicribc their deferters by, 
 
 or as Sir "John Fielding ulcs for highwaymen. 
 
 'I ht law, to warrant an apprehrnlion, requires a ccr- 
 tv of the pcrlon as well as the crime, they mill I 
 tied in the piocefs, or the execution of it is ille- 
 It would otherwise be liable, from ilu generality 
 the defcription, to Dc executed upon « 
 : the freedom of our conftitution will not permit, 
 re is nothing in the countenance of any man (of A 
 n .1 re than ol B 01 C) which can determine him to be 1 r 
 not to be the rtutbor, Printer or PublUhei ol any pi< 
 fo that maiv t n ; * :i would be cauielefsly han 
 
 fiom vain, light fui n 
 
 Ul-informed or ill-ini 1 era! 
 
 :i in certain 
 mufi be named, or by notorious and vifible marki parti- 
 
 '!t. 
 
 I. iv, that Sir John 
 
 warrant for ihi leisun 
 
 :i. il h<- I : hi 
 
 prehenfion e' .• •. uho robbed A-". C. 
 
 bttwttn 
 
[ »7 ] 
 
 between London and knight (bridge, at fitch an hour and fuch 
 a night, of twenty quintal and bt - watch ? What man could 
 be li and taken up as within the description 
 
 and by virtue merely of huh a warrant ? lor, is not 
 every man who has the ufc of hi.; limbs able to rob ? And 
 yet, according to the fhrewd Confiderer, it contains a fpeci- 
 fick defer ipt ion of a particular per/on ; that too, which of all 
 others is folely and peculiarly applicable to him, the commiff^n 
 of the offence. 
 
 It is really abfurd to contend that by defcribing the 
 offence you delcribe the offender ; or that an officer 
 has any certain ground to go upon in the execution of 
 a warrant containing neither name, definition, nor por- 
 trait of any individual whatever. 
 
 Is it therefore to be wondered that in the cafe of Mr. 
 \\ ilkes, under the general warrant then iffucd, many 
 people were taken up, who were neither Author, Printer 
 or Publifhe; ? J or, is not every foul, woman as well as 
 man, capable of publifhing a libel ? It is in truth fo 
 ft range and random a way of proceeding, and fo pro- 
 ductive of injuftice, that one would think, after fuch 
 recent experience, our mod exotic apprentices to the law 
 would be fcnfible of it. They may be affured withal, 
 that what is not agreable to common fenfe, or is un- 
 certain in itfelf, can never be rendered either plain 01 
 pofitive by any metaphyfical twift in talking or writing 
 about it. 
 
 This refined writer, however, feems afterwards to un- 
 fay what he had before after ted, by conceding that he by 
 no means approves of general warrants where Jpecial can be 
 of effecl. This finely is contradiftinguifhing General 
 from Special warrants ! wherefore I wifh he had cither 
 (hewn how a fpecific differs from a fpecial warrant ; or 
 clfe how a general warrant can be fpecific, in one and 
 the fame fenfe. The fame warrant may be certainly 
 fpecific as to the crime, and vet general as to the perfon i 
 but, unfortunately for this (bribe fwho feems to hold the 
 eel ofJLience by the tail) the Englijb law requires the fpeci- 
 fkarion of both. 
 
 Furthermore, he is rr.iiraken in fuppofing I admit Ge- 
 neral \\ arrants to be legal in Treaibn ; for, I condemn 
 them exprefly in all cafes. Indeed, a little reflection 
 
 muft 
 
C ii« J 
 
 mull crw i--.ce anyone of the necemty of a contrary 
 inc ■ 
 
 A man to be appn t all mult be guilt\- of fume 
 
 breach o1 the Ian ; and this mull cither happen in the 
 ftrate, or be proved to him by oath, 
 befoi • he can r his arreft. I he procefs 
 
 .1 th the offence and the offender, lor, if 
 this were not lo, it would not be the magiftratea, but their 
 officers, who WOul C what perfon lhould be taken 
 
 up. Now, the lall are merely nrinifterial and can only 
 execute orders, which therefore mult be precifc. It is 
 the province of the magiftrate alone to judge, and no 
 tnan can delegate his judicial capacity to another. Hut, 
 if he crant a di'cretiona; v, that is, a general, and n< 
 particular warrant, the officer is left to judge for himfelf. 
 '1 he law would then fore a£t vainly in requiring the magi- 
 ftrate to have information an oath (of good caufc of fuf- 
 picion, at leaftj againft a particular perfon, before he 
 iflue any order for his caption ; if his officer can take up 
 any man he (hall think fit bv virtue of gent ral words and 
 his own difcretion, the liberty of every BngHJbmM 
 would then be left at the mercy of every impudent Bailiff, 
 Coultabic, Meflenger, or Footman, intruded with pro- 
 cefs. 
 
 Kven in Hue and Cry, where frtfl) purfuir is made, the 
 felon mult be defcriberi, and alio the way he 
 
 Let me now fuppolc that Leach had d( 11 and 
 
 his houfe, and killed the Meflenger. Would be, 
 to know, have been guilty of murder ; the warr in , tfa it 
 he was apprehended by, naming nobody, ami be I ein 
 object ot it, neither within the letter nor the fpirit - it ? 
 On the other hand, had the M< ill d I .\h ; 
 
 would he not have been clearly murder? 
 
 A power of difpeniing with the law and its forms of 
 iuflicc has 1 know been formerly claim 
 rative, but not even * ( ol the moit 
 
 northern extraction) will venture to br< ach cima 
 
 now. it if indeed profligati nonfenfe to pretend, that 
 what u contrary to the common and ftatute l.uv ol this 
 
 realm CM be legal, let ■ by any other 
 
 power whatever, ["hen " ■ befida 
 
 or paramo nj tl nd. In the ».ime of* 
 
 Chailcs the lirlt, upon the impugnment of the mem! 
 
 in 
 
[ n 9 ] 
 
 in the fourth year of his reign, Scrj. /flrfey (in his ar- 
 gument at the conference between both houfes) aflerted 
 that Lex Terre meant divers kin!;, of law, as the Common 
 
 Law, the Ecclefiaftical Law, the Admiralty Law, the 
 Law of Merchants, the Martial Law, and the Law of Staff, 
 and that by this lalt fort of law kings could imprifon their 
 fubiccts at their pleafttre, without (hewing the caufe. 
 
 But this the Serjeant's zeal for llavery offended in thole 
 days botli the Lords and the Commons, and he was 
 immediately ordered into cuftody for the unconftitutiona] 
 doctrine he had advanced. However, upon his humble 
 petition, fubmiflion, recognition of his fault (in arguing 
 that a King of England could govern by a Law of State) 
 and afking Pardon on his knees, he was at laft dif- 
 charged. 
 
 The hair drawn diitinclions made ufe of to put a dif- 
 ference between Scro^trs and Lord Halifax's general 
 warrants are unworthy any anfwer, and become only a 
 fophift in his noviciate of logical difputations at Col- 
 lege. And, the words which foould thereafter be publijbed, 
 are not in one of the warrants cited by me. A circum- 
 itance immaterial in itfelf, were it not to fhew the little 
 truft that one ought to repofe in this flippery writer's af- 
 fertions or quotations. 
 
 The beft way perhaps of anfwering a man who r/«- 
 fons that the Kings Bench approve fuch warrants, becaufe 
 people have been there admitted to Bail under them, is 
 to bring him to the fail, that is to the King's Bench ir> 
 felf, and then he will be convinced bv his own ears and 
 eyes, that the Court never examine the validity of any 
 warrant, unlefs when called upon fo to do. 
 
 The Confiderer knows, it is fddoni worth the while of 
 any man who brings a Habeas Corpus, to queftion the 
 legality of the form of the warrant for bis caption, be- 
 caufe a regular one would be ifltjed immediately, and he 
 mufl then be at the expence and trouble of being brought 
 up again by another Habeas Corpus. What Council, 
 therefore, wou'J touch upon an objection of form, if he 
 had nothing of jubilance to urge for his client's difcharge? 
 The beft thing for him, is to be bailed as foon as poffi- 
 ble. 1 he Confiderer knows, that neither court nor coun- 
 cil would officioufly act fo nugatorily and unkindly. 
 The only Chief Juitke of our time, who has had a man 
 
 before 
 
[ 120 J 
 
 before him upon a general warrant (excepting the late 
 cafe of Mr. Wilkes) is my Lord Mansfield. Dr. Shcb- 
 beare was apprehended by inch .1 warrant, and broi 
 
 ehi Lordflupi but, he took no notice of the obvious 
 
 defedttveneis oi the warrant, and admitted the Doctor to 
 bail under it. Aiui yet, I never met with any m.in, he- 
 fore the Confiderer, who either blamed this conduct, or 
 held fuch general warrant to be legal. Rumour whif- 
 rs, that Ml the cafe ot .Mr. Wilkes, the Secretary of 
 I, l - .. we know him to be the author, why not 
 
 l * name him;" and that it was a noted Solicitor who 
 
 prevented thil being done, by telling his Lordfliip, " it 
 
 u wa better not." 
 
 I leave the reader to judge, whether the Refolution 
 propofed in Parliament did not fpring out of an Inquiry 
 into the conduct of Mr. Webb and Mr. Wood, and 
 then defne he will judge of the Caiu'.idnefs of the C;n- 
 fuierer, who treats it merely as a fpontancous motion 
 grounded on nothing. He need but read the Votes or 
 Journals *. It is beneath any but a Schoolman, to Waffc 
 
 time 
 
 • Mr. Wilkes's cafe gave rife to the menage and the comphint a- 
 bout privili 1 .1 :>< a very long inquiry in pa rl ia m ent. From the 
 matter then tliic!< fed, the resolution propofed ab 
 in lil.cl tot k its rift, and it was framed according to rhi very \ 
 of" the we roallj iRued. At trie opening <i"t!ie 
 
 motion, i, ■ : the 
 
 H .1 fully and Uuion v*f 
 
 to bt • ' "" of (u< li I wMMrt 
 
 on a member to be a breach ot pririli e. (Indeed, that foMof 
 I, that in 1 . mmon man 1-- ii 
 
 in thi ■ • ' 
 
 the progrela, and the end of the whole wa '-.is it 
 
 the pan which the Di particularly flights ; 1 
 
 fappefe) lit- knows r • ty of tli- Com- 
 
 mon I did n< i > nl itk the 
 
 journals for every rel - cafe in qaeftkm, narfeall 
 
 do it now j but, to I -II int 
 
 ■ •' nature and < >ct< m ol men , 
 
 aeeding. However than ao 
 
 inde| nt rel dutiona, b . I pon i 
 
 ct prink k and of but 1 \vith any | n< im| 
 
 ridiculous gravely to 
 1 | tfx 
 
 Jj,r.: . the < 
 
 uf 1; : '°f e 
 
 who , ■ . 
 
 
[ 121 ] 
 
 time in waving or deft royi 115 fucli cobweb Arguments 
 -ind dfftinctions. 
 
 In Con tradition to the Can/Merer'* AfTertion, I will 
 affirm, that the Queflion of the Legality of the Warrant 
 is net noiv fub iudicc, r.or in a courje of legal determination. 
 There is no bill of Exceptions, cither fettled or fealed, 
 where this point is made; nay farther, there is no Bill 
 ol Exceptions or Caufe, now in agitation, where this 
 point can be made : feeing, in the nrft place, according 
 to their own account, it muft be (hewn, that the fecretary 
 of (late is a Juftice of Peace within the meaning of the 
 Statute ; and next, that there was a probable caufe for 
 arrelting Mr. Leach, Sic. before the legality of the wai- 
 
 R rant 
 
 to the refolution, damning the commitment as illegal ? Would the 
 refolution condemning general warrant* be rendered more falutary, 
 conftitutionaJ or effectual, by a fublequent order to transmit it to the 
 Lords, or by ordering Money, Watfon, &c. into cuftody, or to aflc 
 pardon on their knees, at tlie bar or the Houi'e ? The Conjidcrcr af- 
 fumes, that the Houfe does not refolve the law upon a general point, 
 unlcfs when it immediately ari/es from or tends to fome other acl of 
 tary proceeding. Now, apply this to Lord Danby's cafe. 
 What did the refolution there arife from ? A mere complaint of his 
 being gronndlefly taken up. What aft of parliamentary proceeding 
 did it tend to ? A declaration of the illegality of the warrant. What 
 other act did it lead to or end in ? None at all. The order, to afk 
 the Secretary again nuhen he received the information, on which the 
 warrant was grounded, can in no fade be called fo. It was a part 
 of the fame tiling. This order too was made the fame day with the 
 refolution, and is never afterwards mentioned in the journals. The 
 apprehenlion of Lord Danby was a breach of privilege, becaufe thcr« 
 1.0 information on oath to ground it. If there had, as the war- 
 rant purported to be far treafonable practices, will the Confiderer fay, 
 that the apprehenlion would have been a breach of privilege, when a 
 member may be apprehended even for a libel ? It is am izii , that ■* 
 fubtle man, as this exotic writer (as well as his parliamentary clerical 
 auxiliary) certainly is (tho 1 no great lawyer) mould offer fuch mere 
 Cobweb for reafoning ! His friends, theminifby, would have oppofrd 
 the motion as diforderly and inadmilfible had it been fo, and not have 
 1 ived, amended, and (haped it, and finally adj turned it only. 
 And pray, how can any bodv determine that the refolution, damna- 
 tory of general warrants, will not be followed by an addrefs to the 
 king, t > defire his majelty would direct this refolution to be commu- 
 1 to the privy council and the fecrctaries office-, to the end, 
 that no more fuch warrants may for the future be iflued from thence ; 
 and by an order that this addrefs mould be prefented to his ma ; e!ly, 
 by fuch members as are of his privy council. The refolution would 
 then tend to an ether ad of parliamentary proceeding, would be fol- 
 lowed by a directory tnte t and by an order which is fix fatal and ex* 
 
 tcHtwt 
 
r i22 ] 
 
 rjnt iifclf cnn at ..'1 come in qui'C.inn, or he material. 
 
 So that, let tl i t I: ive i i lb 
 
 ' i v i i fiued ir •. "n b of 
 
 ithin the ■• un- 
 
 alfo a prol Mr. 
 
 not 
 iuftifiable, any more lhan tl ry who iflued it. 
 
 m-( the ur in 'mw for i i;ig, 
 
 . o( State is a ftatutable Jufticc 
 of Peace ; ai .1 ni i her i ; tence in law, nor the (hadow 
 < . . . 1, . Leach ^ &c. to he the Author, Prin- 
 
 ter, or Publisher, of No. 43, nay the Jury found the 
 conJ >t one, bet both of tnefe matters, 
 
 mult be fully ch ihlifJied, bcJ >re the warrant itfelf c<u\ 
 come under confederation. For, I cannot believe, until 
 I fee it actually co:ne to pa's, that any Court, out or" 
 compltfitance to any advocate, \s-ill invert the order of 
 things, and confulcr that point firft which is Lit in courfe, 
 
 and 
 
 b thai t' . ''i rules, or clerk-like 
 
 ilitles, 1:1 
 ma 1 - 1 icty 
 
 of the refoluuon it/elf. But, if he That the 
 
 resolution muft likewile at me other pa 
 
 ing, it being impoflible to cor.i eel it now with any t : . - thai 
 
 ,10.'. (.ilt'. .t the 
 ally as the complaint agaiafl Mr. B 
 
 ciia too late 
 
 to mu\c a complaint againfl 
 w. -u!.'. bave been at firfl the moll becoming tb< . 
 
 lal (altho' not the mi 
 tender) waj ; and therefore, it is 
 
 ..tit, n of adminiuration, whethei die Cmple, in- 
 , i!ioi:I 1 it be moved 
 I, be foi tb< tab lv« the mi it eligible ol ill. Th« 1 
 <. . 1! nnfidcratiorti 
 
 .1. Oth< : wile, It 1 me 
 1 
 
 li w;is an 
 independent, ful • , and j 1 1 
 
 nitudc, but of tn< mod 
 lure, involvh <- in il 
 nml ni.'.' 
 
 ■ v , , licy of it, 
 
 • if lam 
 
 i ; i the riling of the 
 
 jinule : In thai ■ that 
 
 they could a refolution upon any general point iff 
 
 iai':, 1 .. . they Jhould Joe it expedient Jo to do. 
 
r 123 ] 
 
 and which can only operate at all in f.ivour of the De- 
 fendants, after the former hive been cflaldifhed. a har- 
 dy afiertion to the contrary gains no credit, when it 
 flares common Scnfe in the face, nor his it ;mv Other 
 effect than that of turning ones eyes with aflonifhmcnt 
 and indignation upon the tfcfperate aflertor. It is I id- 
 low, commonly (aid, that if Truth be agai'i/l a Aim:, 
 will be againjt Truth \ but then there fhould be fomething 
 in the way of faying that will put a glofs upon the mat- 
 ter, in order to obtain a momentary credit to it. Above 
 all, fuch crazy ftuft fhould never be committed to paper, 
 and penned as the queftion of debue, for the botchery 
 will be prcfently feen through, and the unfkilful tinker 
 damned. However, I will further venture to affirm, 
 with refpeel to the legality of the warrant, that no En- 
 glifl) lawyer thinks the point of magnitude for its difficulty, 
 requiring learned diicuffion, or mature confederation : al- 
 though many a man" might be of opinion, when the 
 liberty and property of a reprefentative of the commu- 
 nity were broken in upon by a minifter of the Throne, 
 Parliament would interfere, that the privileges of the 
 Lcgiflature might be vindicated with dignity, that is, by 
 the Legiflature itfelf; the private remedy of action or 
 indictment being too fmall for fome cafes, and the ordi- 
 nary Courts of Jultice too feeble to cope with fome ma- 
 lefactors. 
 
 The Confiderer may mifreprefent and then contemn, if 
 he pleafes, my way of Reafoning about the Seizure of 
 Papers, let him but agree with rne in the Law upon that 
 head. I write not for the fake of Abuie or Altercation, 
 but of the juft liberties of Englifhmen. I defire to of- 
 fend no man, who does not counteract or betray them, 
 and I care not whom I offend that does, or attempts to 
 do, either. In the reign of Charles the Firlr, the Com- 
 mons refolved, " That the Searching and Sealing of the 
 '« Chambers, Studies, and Papers, of Mr. Holies, Mr. 
 " Selden, and Sir John Elliot, being Members of Par- 
 " liament, and ifluing out Warrants for that purpofe, are 
 * Breaches of Privilege:" And alfo, " That Mr. Lau- 
 " rence Whittacre, beino; a Member of Parliament, 
 " quarto Caroli, and entering into the Chamber of Sir 
 " John Elliot, being likewife a Member of that Parlia- 
 " ment, Searching of his Trunk and Papers, and Sealing 
 R 2 "of 
 
[ IM J 
 
 tc of them, is guilty of a Breach of Privilege of Parlia- 
 44 ment, this being done before the Uiflolution of the 
 *' Pal li.imcnt." 
 
 Tlie Ctnfidtrer indeed fays, " he cannot form to his 
 11 imagination any legal or political reafon, even in 
 •* high treafon or other public danger, for the general 
 •' and undifti guilhing feizurc ofpapert." 
 
 I his carries i irery bandlbmc appearance with it. But 
 then, in page 13, he aflerts, that " the profecutor il at 
 " liberty to avail himfelf of whatever he can find in the 
 u houfe or on the perfon, to prove the tru;h of his 
 " charge." Now, how is this confident with the fore- 
 going or founded in notions of law? For, without in- 
 • nation on oath affecting particular things nothing 
 in any cafe 'jc touched or examined, much lels 
 1 (zed and carried oH". J.et the contrary be admitted, 
 and whenever an Attorney General fhall think fit to file 
 an information, or a Secretary of State to take up any 
 , be it ever fo groundlefsly, his houfe and all his pa- 
 may be rummaged and gutted by this fort of law, 
 that is, upon mere political fufpicion, in order either to 
 fifh for evidence really to prove him a libeller, or elfis 
 for the lake of other intelligence, which a jealous miniftcr 
 may want or vvifh for and not know othcrwile how to 
 come at. Evcrv private paper, according to this doc- 
 trine, might be fcrutini/.cd by the examiner; for, with- 
 out doing fo, how could he determine whether fome- 
 thinig could not be proved from thence? and yet, no ni- 
 dation all this while on oath might be given either 
 to Mr. Attorney or Air. Secretary. In a word, onec 
 admit the principle, and all the eonfeipienccs of an un- 
 limited State Inquifition follow of neeeffity. But, it is 
 really abfurd to fuppofe This can be law, when nothing 
 can be taken from any man, in a legal way, without 
 fome Ipecific criminal charge againlr it founded on oath, 
 
 or on the view o; the magiftrate or ipprehender accom- 
 panying the criminal : 
 
 He then pi i Gllily to fuppofe, that evidence 
 
 not be admiffibl . i by violence, and aft 1 
 
 liih queftion upon this ftrange fuppofition< But quod 
 I . faEhm .'•« f, .111 unlawful manner of C 
 
 by papers will not prevent their being evidence when 
 j; — .... The only thing that it plain from this raw 
 
 write* 
 
r i*s j 
 
 writer is, that he himfelf has no certain notion about 
 the matter at all. 
 
 1 Ic allows, that when a Jury finds a man guilty of mur- 
 der or a libel, they pronounce him guilty of that facl 
 which the law calls a murder or a libel, and iays, that be- 
 yo'id thofe bounds the Jury have nothing to do with the law. 
 This is enough for my prcfent purpofc, and therefore it 
 is not neceffary for me to fcan the whole of his law- 
 do&rine, however exceptionable it may be, concerning 
 Jurors; altho' the old books molt, certainly fay the Ju- 
 ry are judges of the law, as well as the fac~r, in all 
 calls, if they pleafe to take it upon them/elves. Lilbwn, it 
 is very well known, immediately after his acquittal, pub- 
 liihcd his trial, and in a remarkable frontifpiece prefixed 
 to it, proclaimed to the world that he had been ac- 
 quitted by the integrity of his jury, who were, judges of 
 the law as well as the fuel. It perfectly amazes me, that 
 the Confidcrer mould work himfelf up to affirming, it it 
 contrary to their 0:1th, when any man need but read it to 
 fee there is not the femblance of a foundation for fo 
 fcandalous and wanton an affertion. Indeed, his con- 
 ceptions in general of juries feem by much too lowly 
 and contemptuous, owing I prefume to his education on 
 the northern lide of the Tweed, where very little ufe 
 is made of them, the law of the country fervilely tread- 
 ing after that of Imperial Rome which was calculated for 
 empire and vaflalage, and not for freemen or a common- 
 wealth. A like prejudice has drawn fome other people 
 into many a fcrape, which but for this I fancy they would 
 not have fallen into. 
 
 In ftri&nefs, the Law of England in a judicial way 
 knows no other proof but before a Jury and by record. 
 
 If a man, for example, conceives himfclf alluded to 
 in any defamatory writing, altho' not named nor per- 
 fonally defcribed, efpecially where the character he im- 
 putes to himfelf is fuppoied of fome future age, He mult 
 take the fenfe of a Jury upon it. A Judge cannot de- 
 termine the matter ; it is not within his power, it is 
 no part of his province, to afcertain an innuendo: nor 
 can the party himfelf be examined, for nobody is re- 
 quired by our laws to furnifh evidence againir. himfelf. 
 In fhort, as no Starchamber exifts at prefent, fo nobody 
 can be puniihed upon the mere prefumption ot the 
 
 King's 
 
f 126 ] 
 
 King's Judges; nor can a difcovcry be forced from the 
 party by any torture of examination or confeffion. 
 ! ve indifferent men, his fellows, muft find on their 
 oaths, that the Writing complained of was knowingly and 
 rtialicioufly put forth by the accufed in contempt and dif- 
 | ment of the Acculer. This is the only legal 
 
 proof ill fuch cade, win icon any judgment can be 
 founded. 
 
 So nice were our anccftors, after the Revolution, 
 even with refped to innuendo* confirmed by the verdict 
 of a jury, that the Lords in reverting the jud 
 again It Sir Samuel Bernardi/kn, declared tc The informa- 
 «' tion, being grounded upon Litters, \\hich in them* 
 41 fclvcs were not material, but made lb by innuendos or 
 • c fuppofed or forced confirmations, ought not to be al- 
 « ; lowed; for, all accufations mould be plain, and the 
 •' crimes afcertaincd." 
 
 In good faith, no EnpHJhman fhould be conftrucd or 
 innuendocd into a fine or a jail even by a Jury, muft lefs 
 by a Judge, without any trial whatever by his peer ;. \\ ho 
 is meant or what is meant by any writer is in every 
 cafe to be refolved by his Country. No affidavits will 
 ferve the purpofe. And, whenever a contrary doctrine 
 (hall take place, the ( onftitution of this country will 
 foon be deftroyed, and the liberty of every man in it lie 
 at the mercy of his Majefty's Judges. Is this what any 
 man defires or will yet a while endure? It will not only 
 be over with the true Engliih Conftitution •, but a man 
 may boldly fay a£lum ejl de republua. Perchance too, 
 Chaos will not come again, for I am afraid of a much 
 Worfe thing, and that is lifelefs flavcry. The time will 
 then cxiit which the modern Ihitijh Hiftorian only 
 feigns of our generous Anceftors, when parliaments will 
 be confidered as an ornament and not as effhttial to the 
 State, and no lavoytr have even an i '.. . for, 
 
 ling to Mm, the exuberant bappinefs of Ei 
 men under the in It Stuart made then) rieli and wanton, 
 and that want': : ' extravagant noi 
 
 and thefe at length, by jumblii ntlj together, 
 
 fell cafually into the (hape o( political freedom, and thus 
 in the golden reign ol this Scottilh Solomon, the notion 
 of an Englijb conftitution was fomehow, and for the firtt 
 time, conceived, produced or made. 
 
 Not 
 
[ I2 7 3 
 
 Not only the rcafon of the thing, but hiirory, war- 
 rants me in foreboding this confequen.ee from Gjicb tfi? 
 nets. In the days of our fecond §£Q£tj0i prjc , 
 Charles the martyr, when our old Magna Chart* lib<ii.y 
 was ebbing very I alt, and this antient constitution verg- 
 ing to an end, t lie Stan lumber lifted its creil higher 
 than ever, and fuperceded the uie of Juries ;:nd all Other 
 Judicatories. The fecond day of Hilary Vtrjn, 1637, 
 an Information was preferred in the Staiehambcr by 
 the King's Attorney-General againft LUburn and Warton, 
 for the unlawful printing, publishing and difperfing of 
 libellous and feditious books, contrary to the decree of 
 that Court, which was verified by Affidavit. 'I hey 
 were brought up to the Office, but refufed to take an 
 oath to anfwer interrogatories, faying it was the oath ex 
 officio, and that no freeborn EngHJhman ought to take it, 
 not being bound by the law to accufe himfelf. Their 
 Lordlhips neverthelefs ordered, '* the oath to be tendered 
 again, and again, in open court," and the delinquents 
 ftill refilling it, and to be examined, " adjudged them ta 
 be guilty of a very high contempt and offence of danger- 
 ous confeq.'ence and evil example, and worthy to un- 
 dergo very (harp, fevcre and exemplary cenfure, which 
 might deter others from the like prtiumptuous bulduefs 
 in i^fufmg to tike a legal oath, without wl.iv.h many 
 great and exorbitant ofrlnces, to '.he prejudice and dan- 
 ger oj bis Majcjly, his kingdoms and loving fubjeds, 
 might go away undifcovered and unpunifh<.d j" and 
 therefore ordered them to be committed to the Fleet until 
 tbty Jhsuld conform, and topaz 50CL apiece, and before their 
 enlargement to become bound with good paretics for their 
 gt d beba ■ ur j that LUburn fhouid be whipt through the 
 greets from the Fleet to the Pillory, and from menu: 
 be returned to the Fleet, there to remain according to 
 tin's decree. In April, Ecjl.r Term, thio ientence vvas ri- 
 goroufly executed. But Lulurn, whiift he was whipt at 
 the cart and flood in the Pillory, fpoke irreverently and 
 toffed about pamphlets. The Starchamber, then fitting, 
 being informed of this, immediately ordered hi.n to be 
 ga-ged, and mane a further order, " that he fhould be 
 lata alone with irons on his hands and legs, in the wards 
 of the Fleet, where the bafeft and mcaneft fort of 
 loners are ufed to be^put, and that the warden of the 
 
 Fleet 
 
[ 1^8 J 
 
 Fleet fimtli take efpecial care to hinder the refort of etny 
 , and particularly that he fhould 
 
 rot he fupplied with any h md, and to take fpecial no* 
 I all letters, writings and hooks bn ughi i him, 
 
 and to lei/c them, and U t . • from time to time 
 
 ' r\ :\- t/:jt tefort to the \ ■: to Vtfit the faid Lil- 
 
 bunt, -r to {peak uith him, and to inform the board." Their 
 
 Lordfhipa further ordered, " that the Attorney and Sol- 
 icitor General fhould fti ...mine Liibum whether 
 I, during the time of hi-j whipping and (randing ia 
 
 the Pillory, utter anv, and what fpeecnes fending to Jc li- 
 tion or to the dijhenour of the [aid Court of StC , or any 
 
 member of the faid Court, and who heard them ; and 
 whether he threw about any and what fediti 
 and pamphlets, and of whom he had them ; and what 
 other material circumuances they (hall think fit to exa- 
 mine upon, for better finding out the truth, and there- 
 of to make certificate with their opinions." Lilbwn in 
 confequence of this, continued in prifon till November 
 1640, when the full parliament begun, and then b 
 releafed. And upon the trnnlmiilion of the cafe from 
 the Commons with the Starchamber fentence, the Houfe 
 of Peers, after an examination ol the whole proceedings, 
 and a due confideration of the fentence, adjudged, " that 
 the fame and all proceedings thereon mould forthwith 
 be vacated, obliterated and taken oft* the file, as illegal 
 and mo J t uniti/l, againfi the liberty cf the ■ .1 the 
 
 law of the land and Magna Chart a, and unfit to remain 
 upon record." 
 
 To all the Confidcrcr favs, with refpeel to Juries, it 
 is a fufficient Anfwer, that, Whether anv Paper be a 
 Libel tending to tz'c. again/1 the Vcace, if at all a matter 
 of law, it is that fort of matter of law which 
 ceffarily blendtd with fail, and therefore, accordi 
 him, is the proper province of a jury. And altho' 
 he reprefenB trie people likely to be equally partial 
 With the court, I ^o not contrive where or how that 
 can happen, unlefs a COUIt QlOuld at any time difcon- 
 
 Cent or act againfi the whole people, and that is a caic 
 
 I cannot fuppofet The coined, in a public libel, lies 
 
 between the miniftry and Come particular people, there- 
 to 1 , the jury, unlefs taken from amor,.-, thole very peo- 
 ple ^ which CMDOt be) inav be veiy impartial) altho' 
 
 the 
 
r i2 9 j 
 
 the court cannot be To. After Paying tins, I fti.ill leave 
 the Confiderer the uninterrupted fatisfadion ol aflerting 
 
 Truth to be a crime in a public libel, and of infinuat- 
 ing, that it is better the writer fhoulu he punifhed on 
 that account, than the perfon truly charged by him b« 
 ol'iJ, aitho* he were even guilty of a capital crime. 
 Let him, if he will, lay down this to he good law in a 
 criminal profecution, but not to be To in a civil aclinn, 
 drift a luppofed libeller. Indeed, in a note on this 
 part of his performance, he declares a libel to be a crime 
 upon this principle, that " whatever carries a prefent 
 " injury to the peace of another, does fo to the peace 
 u of the ftatr j" lo that, by this way of reafoning, 
 whatever breaks the peace of mind of any old woman 
 is a breach of the public peace of the kingdom. JJut 
 this enthymem reveries the rule of logic, 
 
 Syflogizari non efl ex particularly 
 
 or, as a Chrift Church-man would fay, ex aliquo non fe- 
 quitur cmne. The polnion, in reality, is new and fo 
 extcnfive, that let any man have a hand in detecting the 
 conduct of a political knave, and by virtue of it, he 
 will be amenable to a criminal court for fuch his pro- 
 ceeding, as if it were really a malverlation. The Confi- 
 derer lays verv truly (1 believe) " this principle feems at 
 " firft to have taken place with a view to bring libels to 
 •' the jurifdi&ion of the Starchamber ;" but, I hope, he 
 would not, from his particular approbation of it, or out 
 of reverence to that abolifhed court, advife or endea- 
 vour the introduction of it into the Kino's Bench. 1 arn 
 obliged to him, however, in the fame place, for ad- 
 mitting, that the principle on which judges and Jegal 
 writers hold a libel to be criminal, is its tendency to a 
 heuch of the peace ; becaule, what only tends to, cannot 
 be itfelf, a breach of the peace, as the thing tending 
 to cannot be one and the fame with the thing tended to j 
 and confequently fuch tendency cannot by any poJIibi- 
 lity be an aclual breach of the peace. Having faid this, 
 I will now take my farewel of my fliml tagonrft, 
 and hope another time he will be convinced, that 
 plain fad and common fenfe, arc not to be overcome 
 by metaphyfical quiddities and unfubfrant'ul forms. 
 The prefent argument, let me afTurc him, is above his 
 
 " encounter, 
 
[ ».r J 
 
 iiintef) and he will do well upon a future oCeafun, 
 ts well as his abettors, to 
 
 . remember Mttit (.•ml, 
 
 Vv*edg*d in that limber which he lhovc to rend. 
 
 >•• H. '7 6 5- ' 
 
 APPENDIX. 
 
 To the Printer of the PUBLIC ADVERTISER. 
 S I R, 
 T\ your paper of Saturday laff, among the articles of 
 ■*~ news there are no fewer than four to acquaint the 
 world of " the Kino's Bench, on the firfi paper-day of 
 this term, having unanimoufly affirmed the judgment ot the 
 <. OOimon-Pleas in the caule of Leach, that by this impor- 
 tant decifion he will recover his damages and coirs, that 
 this is the fir ft final determination in the matter, that ma- 
 nv other caules depended upon it, and that the caufe be- 
 tween Mr. IVilket and Mr. // W, it is apprehended, will 
 be ended this term." The very fame four fuccefhvc ar- 
 ticles, in fo many words, arc lilcewife in the Gazetted 
 of the fame Day. 
 
 The information gave me pleafurc, altho' I did not fee 
 how this judgment of the Kang's-Bcnch could be called 
 the firit or the final determination, as the matter came 
 there by appeal from another court, and this very deter- 
 mination was liable itfelf to be carried for error before the 
 
 Houfe of Lords ; unlcls, indeed, the authors of the 
 
 original groundlcfs, vexatious exceptions fhould have 
 changed their minds lately in any refpect upon the point, 
 and be more difpofed to be fatisficd now than they were 
 formerly. But, the News-writer giving alio the title of 
 important decifion to this recent adjudication, I took the 
 liberty of enquiring among the practilers, what were the 
 fevcral material points of law that were decided by this 
 important judgment. They anfwered, to mv furprtze, 
 that the intelligence, pubiifhcd with fuch an air ot au- 
 thority, was wholly deceitful, and that no one point of 
 law whatever was adjudged. The truth of the matter, 
 as they told me, was merely this ; — 
 
 1 ', %• the Hate of the evidence in the bill of exceptions it 
 appeared, that the Mtflfcngeri and (Jonllable had a war- 
 rant to airclt the Author*, Turners and Pubhfhcrs of the 
 
 North 
 
f '3' ] 
 
 North Briton, No. 45, with their papers, that they ar- 
 retted the plaintiff Leach, and that Leach was neither 
 Author, Printer nor Publisher of that paper. The court 
 thereupon gave judgment, or rather affirmed the former 
 lentence, againft the defendants, the meflengers, &c. for 
 having arretted the plaintiff without any authority for 
 fo doing, or, in other words, for having acted in dif- 
 obediencc to their warrant. 
 
 Now upon this cafe no points of law could arife, at 
 leaft not thole important points which the public have 
 been fo long wiihing to have decided, and it would have 
 been unufual, as well as totally unneceflary, to enter in- 
 to or deliver an opinion upon any of them. The plain- 
 tiff here was evidently not within the fpirit or the letter 
 of the warrant, being neither generally nor fpecially de- 
 scribed, in fhort no objeel of it at all, and conlequcntly 
 there could be no room for confidering what would have 
 been the legal cfFedt of his being fo, that is, of a cafe the 
 very reverie of that which was in judgment. 
 
 It was therefore when this cafe was firft argued, upon 
 the warm revival of it which accidentally happened (if I 
 miftake not) jutt after the rifing of the parliament and 
 the change of the miniftry, a moft unexampled grace 
 and extraordinary indulgence of the court, to gratify the 
 bar with declaring its opinion with refpeel to the ille- 
 gality of General Warrants. For, when thefe were 
 made a topic of argument by the advocate in the matter, 
 it was fo apparently in fpite of all propriety, and with fo 
 little neceffity, that the byeftanders at the time imagined 
 fome wager mutt have been laid, or fome general public 
 undertaking entered into, that all this fhould fome how 
 or other be brought about. 
 
 In was indeed pretended fevcral months ago, that this 
 queftion of the legality of General Warrants might be 
 fairly come at in the prefent cafe, by fhewing that there 
 was a probable caufe for arrefting Mr. Leach, that h, 
 fuch fufpicious circumttances attending him, as would in- 
 duce any officer to believe him an object of the warrant, 
 that a probable caufe would juftify the arrett of a wronp 
 perfon, and that therefore the only material queftion 
 mutt be upon the validity of the warrant which happened 
 to be a general one. But, in the firft place, it turned 
 out unfortunately, that the Jury did not find any fuch 
 fufpicious circumttances as could be deemed a probable 
 
 caule ; 
 
[ r3* ] 
 
 ciufe; ahd, ill the next place, it is rtn Indifputabte, 
 primary tenet in our law, that no probable caule what* 
 
 will juftrfy a tortious and falfe arrtft, the* lame 
 ing wholly illegal, wrongful and un It is at 
 
 your own peril that you depri >an ol his li- 
 
 berty. The circumftances that mifled you into fuch an 
 a£t of injuftice can ollly be made ufe of in rn >n Of 
 
 damages. The fbrementioned pretenci in; 
 
 necefcry preliminaries to be eftabltfhed b Fore the \a- 
 liditv of the warrant kfelf Could be dil md they 
 
 being mere cobweb and incapable of bcin_; eftablifhed, 
 it would be quite eccentric to run into a judicial confe- 
 deration of the legality of the warrant itfelf, upon Inch 
 premises. 
 
 But, how this whole matter has proceeded) even a 
 child may difcern; teverbttm fapitnti fat eft. 
 
 Neverthelefs, altho' no points of law touching this cafe 
 ; decided on FYida; lair, nor could indeed the lame 
 be expected, in inch; yet, it is reported, 
 
 that the court in another caufe ). 
 
 r. iv one of the great I il questions, which have fo 
 | agitated the people of England, and are of fuch in- 
 
 finite confequence to civil liberty, now fully in judg- 
 ment before them, after lever. I folemn arguments at the 
 bar, and that the Judges there cannot well avoid deliver- 
 ing their opinions, within the prefent term. Hit mums 
 afftntus eft». I am, SIR, 
 
 Graj's-I**, Entirely, &c. 
 
 t . > if »7°5- C. 
 
 E R K A T A~" " 
 from ihe bottom, i K • 
 
 '9, 'line 3 
 
 iiiin r. And ret ifter all, 1 it 
 ** 1 , whether any 1 
 
 ;■ 
 
 . 
 
 I 
 page 32, laft I ' , line 9, for 
 
 tbc\ 1 ' M ' 1 < •'■ ■ 
 
 n.a nexi Lim ,!•!/.. page 
 
 , n 
 
 i loiaflon in I 1 fan the I 
 
 1 line 10 fruii t. 
 
 1 ' (atrntrnhMau 
 
 : ... :»■ "•'• f*$l '-'>> ^ 1C ir 
 - . I ■ ''3- 
 
 5 
 
UNIVERSITY OF CALIFORNIA AT LOS ANGELES 
 
 THE UNIVERSITY LIBRARY 
 This book is DUE on th<< last dato stamped below 
 
 JUN r * 
 
 1974 
 
 
 MAY 2 7 1979 
 
 i 
 
 . jfcSnSBHnT OF CALtfQBNfc 
 AT 
 LOE AMBJBi 
 
 TTDDABV