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 ) 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, 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 ipjurt 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 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, 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 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 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 ) 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 - ming 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 ■ 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 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 - 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 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 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 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 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, 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- '' 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 '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 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 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 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 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•• 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