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 ^^J^^c^'^<S^'^J^f^'''%J^f'^^J^'^ 
 
 LETTER 
 
 CONCERNING 
 
 Libels, Warrants, 
 
 Seizure of Papers, 
 
 AND 
 
 SECURITY for the PEACE, &^c. 
 
 [Price One Shilling and Sixpence.]
 
 A 
 
 LETTER 
 
 CONCERNING 
 
 LIBELS, WARR AN T S, 
 
 THE 
 
 SEIZURE of PAPERS, 
 
 AND 
 
 Sureties for the Peace or Behaviour; 
 
 WITH A 
 
 VIEW to fome late PROCEEDI NG S, 
 
 AV V THE 
 
 DEFENCE of Them by th? Majority. 
 
 The T H I R D EDITION, 
 Enlarged and Improved. 
 
 The Child may rue^ that is unborn^ 
 
 "The Hunting of that Day. Chevy Chase. 
 
 LONDON: 
 
 Printed for J. Almom, oppofite Burlingttit Houfe in 
 Piccadilly, 1765,
 
 
 .TV r^. _^_
 
 L E T T T R 
 
 T O 
 
 Mr. A L M O N, 
 
 BEING AN 
 
 E N Q^ U I R Y, ^c. 
 
 SIR, 
 
 [)@()e()8("^ O M E weeks after my fon's fending you 
 ^^ 3e( y/ Letter to the Public Advertifer^ I was 
 c MM furprized with the fight of a * pamphlet, 
 ^)6( wherein a contrary do6lrine is conveyed, 
 ^^ )@( altho' I cannot fay diredly affirmed ; from 
 .)()8()@()8( j)( which laft circumftance I guefs it to be 
 the workof fome enterprizing Attorney, retouched by his 
 Superior. 
 
 The Attorney begins by reproaching others with 
 ** wretched quibbling upon words, mifreprefentation, igno- 
 '* ranee, blundering and falfhoods," and then reprefents 
 himfelf andhis friends as *' reafoning men, of knowledge, 
 ' integrity and ability j" butlfufpedneverthelefs, from the 
 fophiftry one now and then meets with in his argumenta- 
 tion, that he has had thealHftance of another man " who 
 has been taught to think himfelf a Statefman, and who 
 would be too happy to be able to think himfelf a minifter," 
 and to whom I (hall only fay, as he loves a claflic. 
 
 Vane Ligur, fruftraque animis elate fuperbfs, 
 Nequicquam patrias tentafti lubricus artes, 
 
 I fhall not difpute the knowledge or ability either of th 
 ne as a dexterous Common- lawyer, or of the other as a 
 verfatile Logician ; and as to public integrity, they need fo 
 little be queftioned, that it would be now-a-days the idleft 
 
 The Majbrity defended, 
 
 B of
 
 (6v) 
 
 of paftimes in any m:in to urge a f) liable upon that head 
 concerning either ; alth'o' I remefhber that one of them, 
 during the laft rebellion, would never in his public fpceches 
 venture to call the rebel army any other than the High- 
 land Arml^ for fear, I preuime, of fpoiling his fortune, 
 in cafe it fucceeded. The Attorney, however, has ven- 
 tured to afTert in pfint, what I do not remember to have 
 heard any one gentleman avow in parliament, and for that 
 rcafon, among others, has attracted mynotice and indignation. 
 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 thcfe points. 
 Now, I do not think myfelf at liberty to fcan the pri- 
 vate adliops of any man, but have a right to confider the 
 condu6l of every man in public ; and to approve or to con- 
 demn his doings as they appear tome to becalculatcd, either 
 /or the good or the hurt of his country. 
 A King of England may be confidered in two refpeils, 
 either in a public or private capacity. In the latter he 
 may, as a man, indulge his own humour, intheeftablifh- 
 /nertt of his houfhold and the choice of his immediate fer- 
 vants. But in the former, he is wholly a creature of po- 
 lity J his crown, his poWer, and his revenue are derived 
 from and circumfcribed by al of parliament. He is in- 
 deed the fkjft in rank of the three independent parts of the 
 legiflature, and the executive hand of the whole ; but the 
 hiiniders and officers by which he carries on the govern- 
 fticnt are the fervantsof the community, and the public 
 Weal is the fole objedl of the intire political frame. In 
 order, however, to preferve a proper refpetSl and chaftity 
 of idea With regard to the crowned head, the rnyal name 
 is never to be introduced into any quedion of public tran- 
 fadions. And therefore it is eftabliihed as 'a maxim The 
 King can do no wrong ; as doing nothing of himfelf, but 
 every thing by the advice of his cotincil ahd minifters. 
 The fpeeches from the throne ; treaties of peace and war ; 
 the application of public revenue ; appointments to offices 
 in the ftate ; thedirel:ion of crown-profecutions ; and, in 
 a word, every other a6t of government muft be always 
 debated, queftioned, and blamed as the a6ls of the mini- 
 fter. As nothing dn be done in a Hmifed monarchy, 
 but what fomebody is to be accountable for it, fo every 
 
 rainifter
 
 ('7 ) 
 minifter in his department is to be refponfible accordingly 
 and to ad at his peril. 
 
 There is no infeparable connelion between a minifter 
 and theSovereis;n. The latter is not, by the duty of hjs 
 office, to fupport any one man againft the general fenti- 
 nients of his people ; and of courfe, whatever is faid or 
 written againft the adminiftration, is not to be regarded as an 
 attack upon his throne. Indeed, were it otherwife, no 
 act of a minifter could ever be arraigned, and no liberty 
 of the prefs exift ; for, every inquiry, and cenfure in 
 print, would be fowing fedition, if not high treafon, hi 
 the ftate. 
 
 By the old conftitution, and afterwards by Magna 
 Charta, no man could be put upon his trial for any of- 
 fence, until a grand Jury had found a bill of indicSraent, 
 or, of their own knowledge, made a prefentment thereof. 
 By degrees however, and by virtue of particular ftatutes, 
 crimes againft the peace became prefentable by conferva- 
 tors or juftices of the peace. In procefs of time, mif- 
 demeanors came to be profecuted by an information filed 
 by the King's coroner or Attorney, that is, the matter of 
 the crown office ; and this was confidered as the prefent- 
 ment of the King. A petty jury was afterwards to try 
 the truth of every fuch indidment, prefentment or infor- 
 mation. But, Henry the 7th, one of the worft Princes 
 this nation ever knew, procured an a6i of parliament 
 which, after reciting many defers aiid abufes in trials by 
 jury, and pretending a remedy for the fame, givesafum- 
 mary jurildiction to certain great officers of ftate, calling 
 to them a bifiiop, to fummon, try and punifli, of their 
 own mere difcretion and authority, any perfons who fhali 
 be accu fed of the ofFcnces therein very generally named 
 and dcfcribed. In fiiort, the court of 'ftarcharaber is, by 
 thisa(5t, fo enlarged in its jurifdidion, that it may be faid 
 to be ercdted, and both (>rand and petit juries in crown 
 matters are in great meafurc laid afide, as the Attorney-ge- 
 neral now brings every thing of -that fort before this court, 
 wl)ich, by its confliiution, never can make ufe of either. 
 In lieu of an indidlment or prefentment of their peers, 
 people of all degrees aje put on their trial by a charge 
 framed at the pleafure of the Attorney-general, called aix 
 information, and filed by him without even the fanlion 
 of an oath j and the ftar chamber decide thereon mofl: 
 B 2 con-
 
 { 8 ) 
 
 conrcicntioufly, but, asmoft true courtiei^ would wifli to 
 do, without the intervention of a jury. The faces of the 
 fubjetf^ are fo ground by this proceeding, that every body 
 at length is alarmed, and the people in ftruggling withtbr 
 crown happening to get the better, the patriots of th 
 time feized an occafion, tovi^ards the latter end of the 
 reign of Charles the Firfl, to extort from that martyr to 
 obftinacy, an zS: for the abolition of this moft oppreHlve 
 jurirdi6tion. But, by fome fatality, the Attorney-general's 
 information, was overlooked and fuffered ftill to remain, 
 and the ufe that Is now made of it every body knows. It 
 is reported, however, that my Lord Chief Juf^ice 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 notftandjbut muft neceflarily fall to the ground.*' 
 It was alfo longthought, they could only be filed where 
 the King was immediately concerned, and fo the old boofts 
 fay; but, it is now certain that they are not limited by 
 any thing befides the difcretion of the Attorney-general, 
 who is an officer of the Crown, durante bene placito, and 
 not upon oath. They may, in time, bcconpe an or- 
 dinary engine of Adminiftration, as much as any Gazette 
 or common Courier. Indeed, the {ccr^fy, eafe and cer- 
 tainty of laying a man under a heavy profecution in the 
 Crown-oftice, without any controul, by this mode of 
 information, are what render it much more formidablf 
 than the common, regular information, which can now 
 only be filed by virtue of a ftatute pafTed foon after the 
 revolution, upon the Profecutor entring into a rpcogni- 
 xance and by leave of the King's Bench, after a public hear- 
 ing in open court. Indeed, there is this very dreadful 
 circumftance attending, the Crown never pays any cofts ; 
 fo that it can 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 cir- 
 ^umftances, will be undone by two or three plunges 
 there. Moft Bookfellers and Printers know this vay well, 
 and hence fo few of them can be got to publifti a ftriclure 
 upon any adminiftration. 
 
 It is a power that is, in my apprehenfion, very 
 alarming ; and a thinking man cannot refrain from fur- 
 prize that a free people fliould fufilsr (o odious a preroga- 
 tive
 
 ( 9 ) 
 
 live to exift. It has been, and may moft certainly be agaih, 
 the means of great perfecution. In truth, it feems to be 
 a power neccfTary for no good purpofe, and capable of be- 
 ing put to a very bad one. For, although a man may 
 doubt whether a Grand Jury in times of violent party, 
 would always find a bill of indidlment or prefent, yet 
 there can be none but that a Court of King's Bench 
 would grant an information, wherever it could, by any 
 Adminiftration, be applied for with the leaft foundation. 
 It is ftill more wonderful that, fmce this prerogative is 
 endured, there has been no a6t pafled to fubjedl the At- 
 torney'General, provided he did not purfue his informa- 
 tion, or upon trial was nonfuited, or had a verdift 
 againft him, to the payment of full cofts to the party 
 abufed. 
 
 This very game was played with a late Vice-Chancellor 
 f Oxford, when L. H. was of the Cabinet, and at 
 the head of the law. The Attorney General filed an in- 
 formation ex officio^ and, after putting the Do<tor to a vaft 
 cxpence, entered a nolle profequt. Soon after he filed an- 
 other information for the fame ofFence, and, when a like 
 expence was incurred, entered another nolle profequt. In 
 fliort, this politico-legal game was had refort to, becaufe 
 there was no evidence to convi(5l, and was dropped and 
 renewed in order to opprefs, to the extreme charge of the 
 worthiefs Dolor, and to the infinite difcredit of a mode- 
 rate King. During the reign of this Law-Lord, the fame 
 Star-chamber weapon was frequently brandifhed, like Me' 
 dufa's head, to terrify and benum individuals. A fecret 
 and efficacious method of preferving the peace ! Many an 
 ufeful publication has been nipped in the bud by an infor- 
 mation ex officio ^that great fuppreflbr of truth) and by 
 the gripe of its executioner, (that enemy to light) the 
 mefTenger of the prefs. An information has been frequent- 
 ly filed, and the miferable objet of it awed into giving 
 fecurity for his future behaviour, without any legal ground 
 for either, or fcrious defign of profecution ; and in thi 
 ignominious ftate of apprehenfion and bondage has he been 
 kept for years together, without either being ever with- 
 drawn. 
 
 Theoppreffion, however, can go no farther; for, if 
 
 that trial proceeds, the fecurity of Engliflimens rights, a 
 
 Jury muft be called in. Some late flatutes, however, (I 
 
 * fliould 
 
 y
 
 r JO ) 
 
 (hovild jud oWerve) in particular inftances have ofven a 
 fummary and final jurifdiction to Juftices of the Peace, 
 in matters of Excife, Game, &c. where the proceedings 
 and decifions are arbitrary, vexatious and partial enough-f 
 believe ; but this does tiot reach to fuch a length as to en- 
 danger, perhaps, the Conftitution itfclf. 
 
 There is no offence which is oftcner profecuted by ah 
 information, ex officio^ than a libel. Now, many Judges 
 before the Revolution, and perchance fome /Ince, have 
 faid that, in law, a paper may be a libel, whether the char- 
 
 {res in it be true or falfe, againft a good or a bad man, the 
 iving or the dead ; nay, that the truth of it is even ah 
 aggravation of the crime : that every libel is, by conftruc- 
 tion of law, even againft the peac(?, and (in very late 
 times) that it is an adtual breach of the peace ; and 
 (at laft) that fecurities for the good behaviour may be de- 
 manded of any man, charged with being the Author, 
 Printer or Publiftier. After all, I do not yet learn by what 
 certain (igns one can know whether any particular pam- 
 phlet or paper will induce any body to commit a breach of 
 the peace. yN. 
 
 I think one may fay of the Lawyers, who have thus 
 matured the do6lrine of informations, that they have been 
 very aftute in the forging of chains for mankind'. No'- 
 thing, indeed, can be added but the revival of a pofition, 
 to be met with likewife in fome few cafes before the Re- 
 volution, that a Jury is only to try the fa6l of publicatiori, 
 and muft leave the intention of the words to the Court, 
 "for their C9nftru<5^ion ; unlefs, indeed, it could be contri- 
 ved to get rid of Juries intirely, that is, to eftablift in 
 ^erfe<3ion the Star-Chamber anew. Already, almoft any 
 fhing that a man writes may, by the help of that ufeful 
 and ingenious key to conftrui^ian, an inuendo, be ex- 
 plained to fcandalize Government, and of courfe be a li- 
 bel ; and Could the laft mentioned impediments be totaUy 
 removed, inftcad of being only now and then got the bet- 
 ter of by the dexterity of a Judge, no writing whatever^ 
 could polRbly efcape conviction. Jt* 
 
 However, it is only in conformity with common par- 
 lance, that I fpeak of law and fa6t in libel as difliiid things; 
 to myfcif they appear to be infeparablv united. For, a 
 criminal profecution and trial can only be had for a crime; 
 now Cat mere finaple publication of f.ny thing not Hbellous 
 
 ' (there
 
 (fhere being no pubHc licehfer) is no crime at aJI; it Is then 
 the publication of what is falfe, fcandaious and feditious, 
 that h the crime, and folely gives jurirdiflion to the crimi- 
 nal Court ;,and That therefore is what muft, of neceflity, 
 be fubniitted to the Jury for their opinion and determina- 
 tion. A decifive argument to the fame purpofe may be 
 drawn ffom the conduct of the Lawyers themfelves in this 
 very matter. P'or, it is agreed, on all hands, to be ne- 
 cefiary for the Crown- Pleader to fet forth fpecially fome 
 pafl'ages of the paper, and to charge it to be a falfe, or 
 malicious libel. Now, this would never be done by the 
 Law-Pleaders, fubmitted to by the Attorney-General, or 
 endured by the Judges, if it was not eflential to the le- 
 gality of the proceeding. The King's Bench, in grant- 
 ing the information, only zi like a Grand Jury in finding 
 a bill of indictment, and in effect fay no more than this. 
 That, fo far as appears to them, the paper charged feems 
 to be a libel, and therefore the perfon accufed fhould be 
 put upon bis trial before a Jury, whofe bufinefs it will be 
 to enter thoroughly into the matter, hear the evidence ex- 
 amined, and what the Council can fay on both fides, and 
 form a judgment upon the whole, which, after fuch a 
 difcuflion, it will not be difficult for any men of common 
 underftanding to do. Whether the contents of the paper 
 be true,, or falfe, or malicious, is a fa6l to be coUcdted 
 from circumftances, as much as whether a trefpafs be 
 wilful Or rtot, or the killing of a man with malice fore- 
 thought. ** Whether any al was done or 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 evidence to prove or 
 *' difprove the thing in iflue." This is our law, both in 
 civil and, criminal trials, akho' the latter are by far the 
 moft material, becaufe what affcfts our perfon, liberty or 
 life is of more confequence than what merely affects our 
 property. 
 
 Were I therefore a Juror, I (hould take nothing imjJi- 
 citly or upon truft, in this refpe6t, 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 fact, and common fenfc, and not political con- 
 venience, far-fetched inference, or ingenious inuendo, 
 being the proper object and intent of xny oath by the lawr 
 
 of
 
 ( 12 ) 
 
 of the land. ** The verdift itfelf is not an al minifterial, 
 ** but judicial, and where the Jurors give it according to 
 *' the beft of their Judgment, they are not finable. They 
 *' can only be punifhed by attaint, that is, by another 
 *' Jury, where it fliall be found that wilfully they gave a 
 ** verdidl falfe and corrupt. Indeed, were this not fo, 
 '* they would be but mere ecchos to found back the plea- 
 *' fure of the court." Whereas Judges cannot refufe to 
 receive a Jury's verdiit. 
 
 The ftri(ft law I know, is pretended to be, that the 
 truth of the matter aflerted is no defence againlt the 
 charge of its being a libel ; but that is a point which I 
 fliall never be prevailed upon to receive as law, from the 
 authority of any man whatever ; and much the lefs fo, for 
 the fafhion now introducing (for the firft time fince the 
 Revolution) of proceeding' againfl: Printers after the Au- 
 thor is known, which breaths a fpirit of perfecution (I 
 may fay of cruelty) hardly to be endured. 
 
 The ftatutes againfl Slander and Scandalum magnatum, 
 (namely the 3d Ed. I. 2d and 12th Ric. II.) dired only 
 that he who *' fhall be fo hardy to tell or publifli any falfe 
 '* news or tales, whereby difcord or flander may grow 
 '* between the King and his people, or the great men 
 " of the realm, fhall be taken and kept in prifon until 
 * he has brought him into the Court which was the jirji 
 " Author of the tale." 
 
 If an Attorney-General finds it neceflary in law to 
 charge a paper to be falfe, in order to render his infor- 
 mation againft it, as a libel, legal ; and that his informing 
 againft it for being a true libel, would not only be ridicu- 
 lous, but bad in law, he (hould prove it to be falfe, or I 
 would never upon my oath find it to be fo, let what mea- 
 fure or what magiftrate foever be the objedl of it ; in rea- 
 lity, it would be abfurd to do otherwife. Indeed^ the 
 diftindtion between words fpoken and words written is moft 
 curious. For no criminal profecution lies for words fpo- 
 ken, and none arc even adtionable in themfelves that do 
 not impute a crime ; their truth may be pleaded in juflifi- 
 cation, no inuendo is permitted, a Jury aflefles the da- 
 mages, and no greater cofts than damages can be reco- 
 vered. The calling of names and ufing of abufive lan- 
 guage, is not adionable at all, and to ground an adion 
 feme fpecial damage muft be alledged and proved. Other- 
 ways
 
 ( 13 ) 
 
 ways you can qnly proceed in the Court-Chriftlan for aa 
 ecclcfiaftioil cenfure. But, if the fame words are com- 
 mitted to paper, the writer is a libeller, may be indited , 
 or informed againft, is admitted to plead nothing in his 
 juftification, and, if found guilty, may be fined and cor- 
 porally punifhed, as the King's-Bench Judges Ihall think 
 fit. 
 
 In truth, the Crown, in libel, (hould not only prove 
 the words to hz falfe, but likewife {hew, either from the 
 nature of the paper itfclf, or from external proof, that it 
 was malicious as well as falfe, or I would acquit the defen- 
 dant. For, if this were not likewife requifite, it might 
 very well happen, that a fober and temperate man, who 
 wrote very juftly upon the whole againfl: a bad miniftry, 
 mio-ht have been mifinformed, touching fome particular 
 fai^ ; and then the Attorney-General, after admitting or 
 not contefting twenty other charges, might lay his finger 
 pon this fingle one, and fhew it to be falfe, and there- 
 upon infift upon having made good his information. In 
 fuch cafe, I (hould confider whether it was malicioufly or 
 wantonly, that the author had publiflied fuch an untruth, 
 oj whether common fame fupported him in it, and ihould, 
 acquit or condemn him accordingly ; for, common fame 
 has been refolved to be a good ground of accufation. 
 
 In (hort, the whole of the information is given in charge 
 to the Jury, and if they find him guilty at all, they muft 
 find him guilty of the whole, that is, that by publiftiing 
 fuch paper he is guilty, of a libel ; and if they do find this, 
 it is not in the power of the King's- Bench afterwards to 
 determine that the fame was no libel. Therefore the 
 char2;e both of the falfehood and the malice of the paper 
 accufed, as well as the fad of publication, fhould be 
 made appear, or the Author and Publifher ftiould be ac- 
 quitted. The very ftatutes againft flandering great men 
 only punifh falfe news and talcs, horrible and falfe lies. 
 
 Judge Powell^ in the trial of the fcven Bifhops, fpeak- 
 ing of their petition, which was charged as a libel, in the 
 information, faid, " To make it afibel, 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 opinon j but their opinion has ever fince been 
 "held infamous, and his in the utmoft veneration. Indeed, 
 
 C Sir
 
 ( H) 
 
 Sir Robert Saw:er t as Council, lufifted, in the fame tria:!. 
 that *' the falfity, the malice, and yJ-a'/V/Wz of the writing, 
 ** were a// facts to be proved." And it is faid, that Lord 
 Chief Juftice Holt always aflced, *' Can you prove this to 
 *' be true ? If you write fuch things as you are charged 
 *' tvith, it lies upon you to prove them true, at your 
 *' peril;" and a man runs rifk enough in being forced to 
 do this. Mr. Hawles, in his excellent Treatife upon the 
 duty of Petty Juries, called The Englijhman's Right, 
 fays, " When the matter in iflue, is of fuch a nature, as 
 " no ation, indictment or information will \\q for it 
 *' fingly, but it is worked up by fpecial aggravations into 
 *' matter of damage or crime, as, that it was done to 
 *' fcandal'fze the government^ ra'ife fedition, affront autho- 
 ** nVy, or the like, or with fuch or fuch an evil intent : 
 *' if thefe aggravations, or fome overt a(l 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 {hall 
 " refufe to find that fuch an at was done faljly, fcanda- 
 *' loujlj, malicioujlj, with an intent to ratfef edition, de- 
 " fame the government, or the like, their mouths are not 
 *' to be flopped, or their confciences fatisfied, with Xht; 
 *' Court's telling them Tou have nothing to do with that, 
 *' ifs onU matter of form or matter of law, "^ou are only 
 ^^ to examine the fa5l, whether he fpoke fuch words, writ 
 ** or fold fuch a hook, or the like : for, if they fhould igno- 
 " rantly take this for an anfwer, and bring in the prifoner 
 " Guilty, tho' they mean of the naked fad only, yet 
 *' the Clerk recording it demands a further confirmation 
 *' thus, Then you fay D. is guilty of the irefpafs or mifde- 
 ' ' 7neanor in manner and form as heflands indiSied, and fo 
 *' jou fay all ? And the verdit is drawn up. The Jurors 
 *' do fay, upon their oaths, that D. maitciouflj, in contempt 
 *' cf the King and the government, with an intent to fcan- 
 ' ' daU%e the Jdmini/iration of Juftice^ and to bring the fame 
 " into contempt, or to raife [edition, &c. (as the words 
 *' were Idid) /pake fuch words, publijhed fuch n book, or did 
 *' J'uch an act, againji the Peace of our Lord the King, his 
 * ' crown and dignity. " 
 
 Befides, there is a conflitutional reafon of infinite mo- 
 ment to a free people. Why a Jury fhould of themfelves 
 always determine whether any thing be or be not a libel. 
 It is this, that ninety-nina times out of an hundred, thefe 
 
 in-
 
 ( 15 ) 
 
 informations for public libels are a difpute between the 
 minifters and the people; and^ in my confcience, this 
 .very circumftance has made our Progenitors retain to 
 themfelves the power of determining both the law and the 
 iact, with refpect to libels, akho' they waved or ceded to 
 the Judges the power of determining the law in all other 
 xefpecls. Having acquiefced in the power exercifed by the 
 Attorney General, of informing againft what he pleafes as 
 a libel, they were refolved not to part widi the prerogative 
 of judging finally upon the matter themfelves ; and, in 
 my poor opinion, had they done fo, we {hould, long be- 
 fore this, not only have loft the liberty of the prefs, but 
 everv other liberty befides. No man that difapproved the 
 meaiures of a court, would venture to difcufs the propriety 
 or confequence of them. No man would venture to utter 
 a fyllable in print againft any power of office, and much 
 lefs againft any royal prerogative, however Illegally ufurped. 
 He would be fure to be charged with a libel by the At- 
 torney General, and to be fined, and perhaps imprifoned 
 without mercy, by the King's-Bench, as, in fa6t, hap- 
 pened to Sir Samuel Bernardifton, whofe judgment was 
 feverfed by Parliament after the Revolution. 
 
 Before that glorious aera, the Judges held their places at 
 the King's pleafure, and afled accordingly. Their oath 
 was then their only reftraint ; that was fome guard, but 
 not a fufficient one, when the confequence of a non-com- 
 pliance with Adminiftration would deprive a Judge of his 
 livelihood, and raife the indignation and refentment of the 
 Crown. Judges are now for life, and a noble fecurity it 
 is ; and yet, unlcfe one could infure them from the com- 
 mon failings of mankind, from ambition, the defire of 
 promoting their children, or, if they have no children, of 
 providing for their nephews, one may eafily conceive that 
 lome influence may ftill take place even in a Judge. 
 
 But it is become more neceflary than ever, that the peo- 
 ple ftiould retain the privilege of determining the law and 
 the faft, rdative to libels, becaufe their reprefentatives 
 have lately, by a rcfolution declared, that privilege of 
 parliament does not extend to the cafe of a libel. I had been 
 always in an error upon this head before, which I was led 
 into by old cafes. My notion was not taken up in confe- 
 quence of the conftruilion made by the prefcnt Court of 
 Common Pleas, nor did I, indeed, entirely build upon my ' 
 
 C 2 own
 
 ( i6 ) 
 
 own fcnfe 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 argitment which he delivered in the cafe of 
 the Poji-Nati^ and which he afterwards publifhed himfelf, 
 upon a ltri(fl review, and with great deliberation, (fo that 
 it is uncontrovertibly his opinion) has laid down the fame 
 dod^rine, and cites particularly the old determination made 
 by the Judges in the cafe of Thorpe. His Lordfliip there 
 fays, " Then let us fee what the wifdom of parliaments 
 *' in times part, attributed to the Judges opinions declar- 
 *' ed in parliament, of which there may be many exam- 
 *' pies. In the parliament anno 31 H. 6, in the vacation 
 *' (the parliament being continued by prorogation) Thomas 
 *' Thorpe, the Speaker, was condemned in a thousand 
 *' pounds damages, in an ailion of trefpafs brought againfl: 
 ** him by the Duke of York, and was committed to prifon 
 '* in execution for the fame. After, when the parliament 
 ** was re-ailembled, the Commons made fuit to the King 
 *' and the Lords, to h^ve Thorpe, the Speaker, delivered, 
 *' for the good exploit of the parliament ; whereupon the 
 ^' Duke of York's counfel declared the whole cafe at 
 ;" large* The Lords demanded the opinion of the Judges, 
 ** whether, in that cafe, Thorpe ought to be delivered 
 ** out of prifon by privilege of parliament : the Judges 
 ** made this aiifwer, That they ought not to determine 
 ^' the privilege of that High Court of Parliament ; but, 
 *' for the declaration of proceeding in lower Courts, in 
 '* cafes where writs of fuperfedeas for the privilege of the 
 * parliament be brought unto them, they anfwered, 
 " That if any perfon that Is a Member of Parliament be 
 *' arrefted, in Aich cafes as be not for treafon or felony, or 
 *' for furety of peace, or condemnation had before the 
 ** parliament, it isufed that fuch pcrfons be releafcd, and 
 *' may make Attorney, fo as they may have their freedom 
 ** and liberty freely to attend the parliament.'' 
 
 The Lords, in the following reign, moll foJemnly ra- 
 tified this do(f^rinc, in the famous cafe of the Earl of 
 jfrundel, by a rcfolution nemine contradicente \ and then 
 prefented to the Kin):, the following remon^rance, " May 
 * It pleafe your Majefty, we the Peers of this your realm, 
 *' now allembled in parliament, finding the Earl of 
 
 Arundel
 
 \ 17 ) 
 
 " JrttTtdel ahfcnt from his pilace, that fonjetimes in ihis 
 " parliament fat amongft us, his prefence was therefore 
 " called for ; but, hereupon a meffage was delivered unto 
 '' us from vour Majefty by the Lord Keeper, that the Earl 
 '* oi Arundel was reftrained for a mi/demeanor, which was 
 *' perfonal to your Majefty, and had no relation to matter 
 *' of parliament : this meli'age occafioned us to enquire 
 *' into the a6ls of our anceftors, and what in like cafes 
 " they hiid done, that fo we might not err in any duti- 
 " ful refpect to your Majefty, and yet preferveour riglvt 
 " and privilege of parliament : and after diligent fearch 
 *' both of all ftories, ftatutes and records that might in- 
 " form us in this cafe, we find it to be an undoubted 
 *' right and conftant privilege. That no r,ord of Parlia- 
 " ment, fitting in the parliament, or within tlie ufual times 
 ** of privilege of parliament, is to be imprifoned or re- 
 '* ftrained (without fentence or order of the houfe) unlefs 
 ' '* it be for treafon or felony, or for refufing to gkie fecu- 
 " rity far the peace ; and to fatisfy ourfelves the better, 
 ** we have heard all that could be alleged by your Ma- 
 ** jefty's learned CouxkII at Law, that might any way in- 
 ** frir^c or weaken this claim of the Peers, and toall that 
 ** claim be (hewed and aJlcdged, fo full fotisfaiiion has 
 ** been given us that all the Peers in parliament, upon the 
 *' queftion made of this privilege, have una "voce confented 
 ** that this is the undoubted right of the Peers, and inviol- 
 *' ably has been enjoyed by them." 
 
 Now what my rcafoning from fuch premifes muft be, 
 may be eafily gucfled. It was thus: Members are clearly 
 intitled to Privilege in all mifdemeanors, for which furetiet 
 of the peace cannot be demanded. But, fureties of the 
 peace cannot be demanded but in a(Slual breaches of the 
 peace. The writing of any thing quietly in one's ftudy, 
 and puhliftiing it by the prefs, can certainly be no actual 
 breach of the peace. Therefore, a Member who is' only 
 oharged with this, cannot thereby forfeit his Privilege. 
 
 I thought that no common man would allow any writ- 
 ing or publiftiing, efpccially where extremely clandcftine, 
 to be any breach of the peace at all ; and that none but 
 lawyers, on account of the evil tendency fometimes of 
 fuch writings, had firfl; got them, by cotiji ruction to be 
 deemed fo. Lhad no idea that it was pofTible for any 
 lawyer, however fubtJe and metaphyfical, to proceed io 
 
 far
 
 ( i8 ) 
 
 far as to decide mere authorfhip, and publication by the 
 prefs, to be an ailual breach of the peace, as This laft 
 feemed to exprefs, ex vi termini y fome pofitive bodily in- 
 jury, or fome immediate dread thereof at leaft; and that, 
 whatever a challenge, in writing, to any particular might 
 be, a general libel upon public meafures, could never be 
 conftrued to be fo. And I 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 impojjibile eji. 
 
 Indeed, I had originally conceived, upon a much larger 
 fcale of rcafoning, that freedom from arrcft for a libel was a 
 privilege incident and necefTary to the Houfe of Commons, 
 becaufe it was a fafe-guard asainft the power of the Crown, 
 in a matter that was almoft always a difpute between the 
 minifter and the fubjedl:, and no more than a natural fe- 
 curity of perfon for an independent part of the legiflature, 
 againrt the arbitrary proceeding of a King's officer, in the 
 leaft afcertained of all imputable ofFences. But this point 
 has been lately cleared up to the contrary in St. Stephen's 
 chapel, upon a debate of two fucceffive days, the laft of 
 which continued from three in the afternoon till two in 
 the morning*. *' And, I lament my not hearing a 
 very long, refined and elaborate fpeech of a certain candid 
 lawyer, the produdt of family learning and patriotifm ; 
 nor the finer wove oration of a great jufticiary ; which 
 have been highly celebrated and were made at different 
 times and places, in order to cafe peoples minds of fuch 
 chimasras as mine, and to convince the impartial part of 
 mankind, that a libel is not only an actual breach of the 
 peace, but fcarcely diftinguilhable in a court-lawyer's un- 
 detftanding from treafon itfelf.*' Neverthelefs, the Com- 
 mons of England at large, having come to no new compal 
 or furrender of ancient privileges, ftill poffefs their old right 
 of being judges of the law in libel. 
 
 I cannot help adding too, with regard to pledges for 
 good behaviour, that, in- my apprehenfion, they are not 
 demandableby law in the cafe of a libd, before conviction ; 
 for this mifdemeanor is only made a breach of the peace 
 at all, by political conftrudion, nothing being an adual 
 
 * Vide the printed Votes of Wedncfday the a3d of November 1763, and 
 'Thurf'day the 24th of November, 1763. 
 
 breach
 
 ( 19 ) 
 
 breach of the peace, butanaflault or battery, the doing 
 or attempting to do fome bodily hurt. Now, furety for 
 the peace is calculated as a guard from perfonal injury ; 
 and articles of the peace can only be demanded from a 
 man, who by fome pofitivc fact has already broke the 
 peace, and therefore is likely to do fo again ; or where 
 any one will make pofitive oath, that he apprehends bodily 
 hurt, or that he goes in danger oi his life. The articles 
 which are every day exhibited in the court of King's 
 Bench, are always for the prevention of corporal damage. 
 No cafe is fo common as that of women exhibiting articles 
 of the peace againft their hufbands; now, I do not be- 
 lieve, that if any wife was to allege, as a foundation for 
 fuch articles her hufband's having wrote a libel againft 
 her ; let the libel be ever fo falfe, fcandalous and malici- 
 ous ; that Lord Mansfield would make the hufband find 
 fureties for the peace, or for his future good behaviour on 
 that account. Another reafon which ftrongly weighs with 
 me is, that the writers upon bail, or the delivery of a 
 man's perfon from prifon, never mention fureties for the 
 behaviour, in any cafe of a libel or conftrudiive breach of 
 the peace ; and yet if would have been material for them 
 fo to have done, if fuch fecurity muft be given before a 
 man could obtain his liberty. My Lord Coke has wrote 
 an exprefs treatife upon bail and mainprife, and confidered 
 the writs de homine rephgiandoj de cdio & aiia^ and 
 Habeas Corpus, and yet it is plain he had no imagination 
 of the thing. He fays, " Bail and mainprife is, when 
 ** a 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 fufEcient furc- 
 ** ties, bound for his appearance and yielding of his body, 
 " delivered out of prifon. As for example, if a man be 
 ** indidted of any felonies, publifhing of any feditious 
 
 books, &c. contrary to the form of an aft made in 
 " the 23d year of Queen Elizabeth, he may be bailed, 
 
 for the offence is made felony, and bail and mainprize 
 *' not prohibited." Now, in the cafe of a public libel, 
 there is nobody who can come into the court of King^s 
 Bench and exhibit articles of the peace againft the writer 
 or publiftier, fwearing that he believes himfelf to be in 
 danger of bodily hurt from him, and that he walks in 
 fear of his life. 
 
 Befides,
 
 '( 20 ) 
 
 Befrdes, for words fcandalousJn themfelves or atfended 
 with con fequential damages, or for a libel, the party traduced 
 may bring an aaion of trefpafs on the cafe, which aaion 
 however, lies only for a wrong done without force 
 but agamft the peace. Now, this muft mean and can on- 
 ly be a conJiruSfhe breach of the peace. For, if it were 
 an ailual breacli of the peace, an adion of trefpafs with 
 force and arms would lie, as it does for an aflault and 
 battery and falfe imprifonment ; but, I believe no lawyer 
 ver heard of fuch an aftton being brought eitlicr for 
 words, or for a libel, or would fay that "in either cafe 
 It would He. This therefore is a proof that the Law 
 does not regard a mere libel as an tfJ7W breach of the 
 peace: 
 
 It is further obfervablc, that there is no adjudged cafe 
 where this demand of furcty for the peace in li'bel, has 
 been determined to be legal ; the crown hath in fome 
 cafes, as in that of Mr. Amhcrft and others, after infift- 
 ingupon it, avoided having the point determined, and re- 
 Knquifhed the claim to it only on that account, and not 
 till the laft minute : it is contrary to the general principles 
 and notions of law ; and it may be the means of great op- 
 preffion. Any gentleman would tiierefore ferve his country, 
 by rcfifting fuch a lawlefs demand, and by havin-it folemn- 
 \y argued, upon the firft occafton. ^ 
 
 When a man is charged with alrbel, bv an arbitrary infor- 
 mation ex officio^ he muft cry out, like a Roman of old, 
 Provoco ad Popolum j I appeal to my country, that is, to 
 a Jury of my equals. I will give bail for my appearance 
 to try the validity of this charge before them, but I will 
 do nothing more. I never heard till very lately, that At- 
 torney Generals, upon the caption of a man fuppofed a 
 libeller, could infift upon his giving fecurities for his good 
 behaviour. It is a doftrine injurious to the freedom of 
 every fubjc<a, derogatory from the old conftitution, and a 
 violent attack, if not an abfolute breach, of the liberty of 
 the prefs. It is not law, and I will not fubmit to it. 
 
 What makes me iurtft the more upon all thefe points 
 \s^ an alTurance that the legal methods of proceeding in 
 every cafe of a libel, are fufficiently fevere, and that there- 
 fore all illegality h totally inexcufable. The profecution 
 js heavy, and \i the fuppofed offender be found guilty by 
 the Jury, his punifhment may be extremely grievous. 
 
 After
 
 C 21 ) 
 
 Afrer the trial, all the circumftances diat appeared are 
 reported, by the Jud^ who prefKievJ, to the Khg*3 Bt^eb^ 
 and this Court gives judgment thcjeupon, aAei' delibera : 
 iion, and both can and will proportion the finjfhment to 
 the cafe. They may, <?/>^ convidion^ pHlory, fine, im- 
 prifoa, and even infift upon fureties for the good behavi- 
 our, according to the nature and deairee, the mifchjc- 
 voufnefs ami tendency of the lihel. In'bad times. Sir Sa- 
 niuc} Bernardjfton, for letters not very extraordinary, was 
 nnedio,Qooi. In gool times, Sbebbeare, for the moft 
 teditious and treafonable libel that could be penned, was 
 fined in no very great fum on account of hiscircumi^ances, 
 biit was pilloried, committed topiifon for two years, and 
 obliged to find fecurity for his beiiaviour, in a pretty 
 tolerable fum himfelf and two fureties in as much more, 
 for kven years to cme. A)l 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 j 
 becaufe I prefume nobody chufes to revert to the addi- 
 tional puniihments infliaed before the fiar-diamber wa$ 
 iupprelTed i fuch as public whippings, burning in the face, 
 flitting the tongue and noftrils, cutting off the nofe an4 
 ears, and long or perpetual imprifonment ; which was 
 the treatment of writers againft Adminiftrations in thofe 
 days, and was abfolutely infliaedat one time upon the 
 three liberal profeffions, in the perfon^ of a clergyman, a 
 counfelbr, and a phyfician. 
 
 li' the libel be upon the Legiflature, and the Libeller a 
 Member, the Houfe will expel him, as Queen Anne's 
 Tories did Sir Richard Steele, for charging the Queen, 
 and her Miniftry, with a defign of breaking the eftabliOi- 
 mentand introducing the Pretender ; and, yet,Ifuppofe, 
 now-a-days there is nobody who doubts in the leaft that 
 Knight*s having publifhed the truth when he faid fo. In- 
 deed, he admitted himfelf the Author of the paper com- 
 plained of, fo that the then Commons were not obliged to 
 help that neceflary fad out, by the reception of td^imony 
 not upon oath. Nay, the Courtiers of that day thought 
 the punifhment of expulTion alone fo fevere (although Sir 
 Richard's creditors were not more nunurous than Mr. 
 Wilkes's) that they flopped there, and carried on no 
 profecution againft him in Weftminfter Hall, or my ivher 
 ilft, 
 
 n I do
 
 ( 21 ) 
 
 I do not touch again upon Mr. Wilkes in this place as 
 commiferating him particularly, having ever avoided hts 
 acquaintance, but merely to fay, what indeed the Hiftory 
 of England from the beginning of the reign of Charles the 
 Firft to the prefcnt time may ill u (Irate/ that profccutions 
 for libels generally ar'fe from, and are purfued withafpirit 
 of party-revenge. Men are upon fuch occafjons apt to do 
 things which in cooler moments they would be afhamed of. 
 With refpea to the lafl named Liiaeller, I muft however 
 declare, had I been his conftant comrade, and my doors 
 open to him at all hours, much more the partaker of hh 
 loofeft pleafures, and of his moft fliameful blafphemies, I 
 fhould not have flood forth, either in the one Houfe or 
 the other, as the immediate mover of the poor devii's pub- 
 lic difgrace, cenfure, profecution and ruin, or as the 
 mercenary advocate of his purfuers ; unlefs I had an incli- 
 nation to convince mankind, that I was regardlefs of all 
 principle whatever, excepting that of ferving a party for 
 my own private intereft, and from that motive was wil- 
 ling to aa upon any ftage, the moft inconfirtent and moft 
 abandoned of all parts, evenagainft the companions of my 
 happieft moments; and to imprint this leiTon upon the 
 world, that no motive whatever of public good or private 
 friendfliip was at the bottom of my conduct, or even the 
 fmaller reftraint of common decorum. Real good-nature, 
 friendlinefs, charity, (whatever you call it) will cover a 
 multitude of fins, but mere companionable eafe or mirth, 
 with a.n unfeeling heart, only enhances the profligacy of 3 
 character. If debauchees will not hnk below the worft of 
 gangs, they fhould atleaft be true to each other, as kindred 
 fouls. In my own opinion, this ludicrous Libeller did himfelf 
 all that his fevereii enemies could wifli, to turn his own 
 cafe into ridicule, and to Jet the people fee that a love of 
 farce and merriment predominated in all his adions ; and 
 that he had too much levity and vicioufncfsof natiual con- 
 Ititution, to make the good of his country the rule of his 
 condua in any one action of his life. But the fight of 
 thefe very things ihould make grave men of all fides at- 
 tend to the conftitution in fuch concerts of profligacy, to 
 prevent the laws of their country from being made either 
 the fport or the facrifice of party upon the occafion. A 
 point that is carried for the fake of punifliing a worthlefs 
 fellow, may be cited hereafter as a presedent for the moft 
 
 dangC'
 
 C 23 ) 
 
 oangefous profecutlon and oppreffion of an excellent Pa- 
 triot. ^ 
 
 The moft refpeaful and conftitutionalof remonftrances 
 from, feven bifliops, in behalf of the eftablifhed religion, 
 has been treated as a feditious libel, and nothing but the 
 honefty of a Jury faved them from the moft unjuft con- 
 demnation. ' The Attorney and Solicitor both affirmed 
 ^^ to James the 2d, TJiat the honefteft paper relating to 
 ^^ matters of civil government might be a feditious libel, 
 ^ when prefented by perfons who had nothing to do with 
 
 ' fuch matters, as (they faid) the Bifliops had not but in 
 time of parliament*." 
 
 Mr. Somers's modeji plea for the Church of England 
 unaerwent the fame denomination, although it was no 
 more than a feafonable defence of our national worfhip, 
 upon the true principles of the conftitution, againft an ar- 
 bitrary and Popifh Court. 
 
 And I remember myfelf a tiny pamphlet, publifhed by 
 the Author of T^^ Confiderations on the German zuar 
 queftionmg 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 j 
 and yet I believe any man who were to read this perform- 
 ance now, free from prejudice, would never concur in that 
 opmion. 
 
 In fhort, one cannot guefs what may, or may not, in 
 fomc unlucky time, be regarded as a libel by fome Judge 
 or Attorney-general. Thehigheft or loweft of Authorl, 
 the nobleft or the moft fneaking, the Original or the Copy, 
 thePatnotortheTool, the Head of a Party or theA- 
 manueiifis of a private Junto: in fhort, the moft refpec- 
 table Commonweal thfman or the paltrieft of CofFee-houfe 
 Lifteiiers and Political Eavefdroppers, may equally chance 
 to fail under this arbitrary brand. 
 
 Nay, :f two foreigners here ftjould happen to have a 
 difpute relative to their refpeaive charaders or appoint- 
 ments, and a difference ftiould arifc about the ceconomy or 
 charges of one fide and the other, and either fhould publifh, 
 by way of juftification of his pretenfions, letters that really 
 
 Sec Lord ClarcfKJbn's State Letters, p. 317. 
 
 D 2 paflcd
 
 (M ) 
 
 paffcd, thev might, for aught I know, beheld a libel, for 
 which the Attorney -general might file an information, and 
 wiicfeto no defence, by the help of a little mana2;ement, 
 (houlJ he deemed pofTible, and which counfel might fairlv 
 give up without the iofs of their character. 
 
 U a man was now to publifli an ode, like that of Mr. 
 Pultcney to Lord Love!, 
 
 ** I^et's out for England's glory," 
 inviting anv courtier to join in meafures f oppofition to 
 the adminiftration, and it was to be written with half tl>c 
 fpirit and beauty, it migl.t be the objea of an information 
 ex officio^ as a jibel, aitho' no man turned of thirty, I 
 fuppofe, would think any placeman could be moved there- 
 by to oppofe the court, and quit a part of their finery, 
 for the fake of being a patriot. 
 
 - Nay, if it be law, diat a man may be guiltv of a lib! 
 by writing againft the dead (as well as tliciiving) I do not 
 fee how the world h evertodi'cufs the adion^ of admi- 
 niftration, or any man to publifli animadverfions upon their 
 condufi \n particular inftances ; nor vphat is to become of 
 the licenfed hiftorian, with his rule ofNequidveri dicer e nm 
 audsat. For example, if I was to fay of a late Great 
 Chancellor, that I could not think he merited the appellation 
 of a patriot, having ever regarded him as a decent , circum- 
 fpea, prerogative lawyer ; that he leaned \\\ his notions 
 too much towards ariftocracy ; that he feemed, in his 
 politics, to approach much nearer to the principles of the 
 Earl 0^ Clarendon (whofe title he once affeiled) 
 than of Lord Somers ; and that, at laft, upon what 
 public principles he joined the oppofition, after having 
 been in all things with the court for forty years be- 
 fore,_ Ifcould never learn. It feemed, that even his op- 
 pofitiori to, or rather difapprobation of, the peace, pro- 
 ceeded rather from a private diflatisfaaioji at the man 
 who happened at laft to have the making of it (his old 
 friends being difplacedj than from any motive of public 
 ooricern ; and fome of his rcafons againft it, indifferent men 
 thought the ftrongeft in its behalf, namely the delinea- 
 tkm of oKit boundary in North America, which, altho' the 
 courfe of a great river is made to defcribe, he objeded 
 to, becaufc its extremely diftant'y^arfir could neither be 
 afcertained or denominated. His difcourfe, it was remark- 
 ed, favoured more of a draughtfman arguing exceptions, 
 
 than
 
 ( 5 ) 
 
 than of a ftatefman difcu/nag a treaty- And nothing per- 
 haps like it can be rccoileded, (zving one equivocal fpcech 
 of a fimilar texture, delivered in another place, but at 
 the fame time and upon the fame occailon ; where the 
 arguments were fo artificia!, qualified and verbal, without 
 edge or fubftance, that it would be extremciy difficult to 
 put into clear and diftind propofitions, what was either 
 affirmed or denied touctiing any of die articles thjgmfeives. 
 Indeed, f could never determine v/hether be had, or had 
 Rot, a good coRceptio^i of our foreign in terefts, altho' f 
 am perfuaded he had a thorough one of aii die domefHc 
 conne9tions among us, i might add, that when a bin for 
 a militia was prefented, aitho' he liked the name and Jpe- 
 cioufiy commended the dcfign, yet he forefaw great diffi- 
 culties and infinite danger in it, recalled Co mens aiit}s 
 the public evils chat followed from arms being put into 
 the hands of the people, no lefs than the deftrudion of 
 royaJty and the fuppreflion o{ peerage ; and fo ibund in- 
 numerable ofc5e<^ions, both reli^ous and pt^tical, to the 
 form and the fubftance of the fereral daufes, and to all 
 die regulations p-opofed- The tide, however, nuuunglbr 
 the mcafure, both as a national ftrength and a counter- 
 poife to a ftanding a?my, lie fuggefted feveral enervatii^ 
 amendments, to reduce the number propofed one half, 
 ajKl to have the other dtlier officered wholly by the crown, 
 or clfe unofficered at afl, as a mere fund in the hands of 
 tlie King, for the better fupply of his ftanding army. The 
 number was accordin^y curtailed, and other qualifications 
 took place. But, at laft, when the bill became an aft, 
 things were fo managed in Ids particular county, that the 
 militia was never either embodied, or commuted for in 
 money, in fpite of the alternative laws for the purpofe. 
 He was apparently a principle man in, if not the fole 
 caufc of, defeating a new Habeas Corpus bill, paflcduna- 
 nimoufly by the Commons, and calculated for the pre- 
 vention of fome evafions of the old ad : and that he pro- 
 jeded, in concert with another new made peer, the mar- 
 riage aa, and, having difapproved a (hort bill drawn by 
 the Judges, obliging people to m^rry in churches, that 
 their marriages might be regularly regiftered and capable 
 of proof ; had tl^ reputatwn of drawing another, filled 
 with cfaufes calculated for the prevention of all marriages 
 without coftfcnt, with a view, as it fliould feem, to per- 
 petuate
 
 C 25) 
 
 pMuate, as much as might be, a fortune of faftiily once 
 made, by continuing, from generation to generation, a vaft 
 power of property, and to facilitate at each defcent, the 
 lumping of one great fum, or one great family^ to an- 
 other, by bargain and fale, in oppofition to the generous 
 prmciplesof equahty and difFufive property, whicJi free 
 ftates have alwaj's encouraged. The royal family, how- 
 ever, was excepted out of tliis late ad, altho' their mar- 
 fiages are alone an objea of public concern or influence. 
 1 might afk too, whether his Lordfliip did not uniformir 
 throughout his life purfue his own private intereft, and 
 raife the greateft fortune, and provide the moft amply for 
 his family, of any lawyer that ever lived ; and whether, 
 during his dominion, the judicial promotions were dif- 
 pofedof upon miniflerial motives, or merely agreeable to 
 profefTional defert. I might neverthelefs, and ought to 
 add, that the fame illuftrious pcrfonasre was blefied with a 
 good temp&r, and great worldly prudence, which are the 
 two hand-maids in ordinary to profperity ; that his whole 
 deportment was amiable ; and that he poffefTed, in gene- 
 ral,^ the foundeft undedtanding in matters of law and 
 equity, and the beft talents for Judicature I had ever feen ; 
 that he might be cited as an example, in this country, of 
 the perfea pi^ure of a good Judge, which my Lord Ba- 
 oon hath /o admirably drawn ; and that he was, in (hort, 
 a.truly wife magiftrate. He was free from the levities, 
 vices and expences, which are fo commonlv the product 
 of a lively and prurient fancy. His ftation did not require, 
 nor his genius furnifh him with imagination, wit or elo- 
 quence. And, perhaps, had he polTelTed a true tafte 
 for the fine arts and the politer parts of literature, he 
 would never have been fo extenfive a lawyer, to which, 
 however, the plainnefsof his education mi^ht have fome- 
 what contributed.Jn fliort, one might fay that,Lord Somers 
 and He feem to have been the reverfe of each other in 
 every refpecS^. 
 
 'Now, this might be profecuted as a libel on the dead j 
 whereas, the writer penned no part of it malicioufly, nor 
 f^ifely as he believed, and did not mention a tenth part of 
 what he might, in fupport of the juftnefs of the charader. 
 And therefore, unlefs a matter be thoroughly canvafled, 
 and gentlemen at the bar will fpeak out to' a Jury, that 
 they may have the proper information to deliberate upon, 
 
 it
 
 ( 27 ) 
 
 it Is hard to fay what may not very glibly pafs at one time 
 or other for a libel. Every thing feems to depend upon 
 the Jury's confidering and determining both the law and 
 the faift. 
 
 I truft, therefore, this fingular privilege will ever be 
 exercifed by the people themfelves. If they once give it 
 up, thty will never know any thing of public tranfaai- 
 ons, but from the moft partial and leaft credited of all man- 
 kuid, from writers employed by the authors of the mea- 
 fures thcmfelves, who, like Scotch Reviewer?, may have 
 the face to attempt to makeEnglifhmen believe, that a mati 
 can be a conliitutional judge who quits the laws of the 
 land and deviates from the eftablifhed pradice of courts, 
 m fpight of common fenfe and the conftant declaration 
 of our anceftors, nolumus leges AngVics mutari. Let the de- 
 penden.^ judges before the Revolution have advanced what 
 doanne they pleafe, the/^^ has been, that juries have al- 
 ways exercifed the right of determining what is a libel. It 
 hath faved this conftitution 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 condudl of Ad- 
 mimftration, to obfervc ivhen flight innovations are made 
 in the laws or in their Adminiliration ; and, of thofe 
 who do, very few indeed have that degree of underftand- 
 ing which enables them to judge foundly of the confe- 
 quences of fuch alterations, with refpe^ to their liberties 
 m general. Again ; of thefe very few, not more than 
 one perhaps, has adivity, refolution and public fpirit e- 
 nough to pubhfh his thoughts (as Mr. Somers did upon 
 ieveral occafions) concerning what was going forward, in 
 order to alarm (like a good citizen) the^rell of his fellow 
 fubjeas. Infomuch, that breaches in the conftitution, 
 which by degrees bring on a total lofs of liberty, are ei- 
 ther wholly unnoticed, or elfe are regarded as the mere 
 violences of party, by which nobody c^an be afFeaed but 
 the immediate aftors. Whereas, for the fake of compaf- 
 iing their own ends, there is nothing which party-men 
 will not do, per fas aiit nefas ; juft as an eftablifhed hi<h 
 churchman will perfecute even to death, any other man or 
 divine that queftions his authority or his doarine. From 
 iience arife precedents of all forts of illegal and unconfti- 
 
 tutional
 
 ( 2 > 
 
 ttttional practices. Minifters (as not one in a thoufiind is 
 actuated by any principle of piifclic good, or even by a cje- 
 fire of honeft farne^ for the fake of povrer, title, riches, 
 andpre-emtnenceof any kind, will deceive the beft in- 
 cIiDed PrJtice, and mrntder to the humour, f(^Hy, vices, 
 smd (k>iinatk>n of the worft. On the Exclurion-biil, no 
 more than two, even of the Uiniops, would viture to vote 
 for it, ahbo' their BtOiopricks depended upon the continu- 
 ance of the Proteftant religion, vfhich that bill was avow- 
 edly framed to preferve. Now, v/hen an impftrtiai man 
 gathers this, both from his own experteiKeand from hii- 
 tory, Ikjw cian he helpbeir^ moved at the do(5trine that is 
 publicly held with refpefi to writii>gs tiiat animadvert 
 upon public proceedings, and the ufe ttiat is n>ade of that 
 defperate fword, an information, together with the nieans 
 which are every day devifed to make it more dreadful? 
 
 I will venture to prophefy, that if tfse reign'mg notions^ 
 concerning libels be pulhed a little farther, no man wili 
 dare to open his mouth, much lefs to ufe his pen, againft 
 the worfl Adminiftration that can take place, however 
 imtch it behoves the people to be apprized of the condi- 
 tion they are likely to be in. In fhort, I do not fee what 
 can be the ilTue of fuch law, but an univerfal acquief- 
 cence to any men or any meafures, that k, a downright 
 paffive obedience. 
 
 There is one great reafon, why every patriot fhould wifh 
 this fort of writings to be encouraged ; which is, that ant- 
 madverfions upon the conduct of minifters, fubmitted 
 to the eye of the public in print, muft in the nature of 
 the thing be a great check upon their bad aiiions, and, ai 
 the fame time, an iricentive to their doing of what is prai(e- 
 worthy. Neverthelefs, if it bs once clear law. That a, 
 paper may be a libel, whether true or falfe, written 
 againft a good or bad man, when alive or dead, 
 who is there that may not continue a Minifter, 
 .whether he has a grain of hongfty or underftanding, iit 
 he fhould happen to be a favourite at Court ? The 
 worfe his actions are, the more truly and fharp the writer 
 ftates them ; and the more tjie public, from his juft reafon- 
 ings, deteft and cry out againji them, the more fcandalous 
 and feditious of courfe, will be the libel; for, the truth 
 *fth fqi is an aggravation of the libel ; ad it was That 
 which occ^ioned the cUmour., The/e is but one ftep far- 
 ther
 
 (29) 
 
 thcr before you arrive at complete defpotiTm, and that U to 
 extend the fame dodtrine to Words fpoken, and This I am 
 perfiiaded would in truth very focn follow. And then 
 what a blefTed condition (hould we all be in ! when nei- 
 ther the liberty of free writing or free fpeech, about evefy 
 body's concern, about the management of public money, 
 public law and public affairs, was permitted ; and every 
 body was afraid to utter what every body however coujd 
 not help thinking ! 
 
 With refpect to libels on a particular perfon, in his pri- 
 vate capacity, there may be fome little foundation for a 
 do<lrine of this fort ; becaufe, as the welfare of the State 
 has nothing to do with his private tranfaif^ions^ you ought 
 not to make refle(5lions which may injure him in his calling 
 or h<s reputation ; you muft always do this out of perfo- 
 nal fpite, and therefore ought to be punifLed for fuch your 
 malevolence. 
 
 But, the cafe is totally different with refpeft to an Ad- 
 minifl^ration ; for the country in general is always the bet- 
 ,ter or the worfe for its condu<St, and therefore every maa 
 has a right to know, to confvder, and to refle<ft upon It. 
 Their pofts in the State, or their public charaSlers, are 
 not like any individual's particular trade, profeflion or for- 
 tune or his private charaler. The writing of them out 
 of their places in tlic Government is not a lofs for which 
 they have any right to be repaired indamagos. Their hol- 
 ding ought only to be ^uam ciiu bene fe gejjer'mty and of 
 this the people at large ought to be made judges, as every 
 man in this country is reprefented, and con fequently con- 
 cerned in the legiflature itfelf. 
 
 However, from a confufion of thefe two different kindf 
 of libels, introduced and upheld from very bad motives, it 
 feems to me that a general dotrine has been laid down. 
 Now, my notion is, that in public libels the truth of the 
 charge (hould be an abfolute defence, whatever may be 
 thought neceffary with regard to private libels. The 
 public is effentialiy interefted in this difcriminaiion being 
 made. 
 
 When m-j^-^find themfelves aggrieved by the viplence ot 
 the mifcondiAji of the perfons appointed to the Miniftry, it 
 is natural for them to complain, to communicate their 
 thoughts to others, to put their neigl)bours on their guard j 
 and to remonftratcin print againft the public proceedings. 
 
 E They
 
 ( 30 ) 
 They have a right Co to do, as much as a horough has a 
 right to rcjea any Court ca.^didate, and to publiOi the rea- 
 fons for fo doing ; and both of thefe rights will I hope 
 be exercifed until there can be both a conge de dire and 
 d'ecnre, and a conge d'dire, eflabiiflied in the State as 
 tliere aheady is in the church. The liberty of expofing 
 and oppohng a bad Adminiftration by the pen, is aniong the 
 necellary privileges of a free people, and is perhaps the 
 greateft benefit that can be derived from the liberty of the 
 .prefs. But Minifters, who by their mifdceds provoke the 
 people to cry out and complain, are very apt to make that 
 very complaint the foundation of a new oppre/lion bv 
 {mifecu ting the fame as a libel on the State. Now' the 
 merit or demerit of thefe publications muft arife from 'their 
 being true or falfe ; if they are true, they are highly com- 
 mendable ; if they are wilfully falfe, they are certainly ma- 
 licious, feditious and damnable. The mere pretence of a 
 .paper being feditious, if the matter of it be fa^, is to be 
 iiifregarded ; for, I do not fee how any writer can publifh 
 to the world the jufteft and moft important complaints 
 without tending thereby to render the people and their 
 conftituents diflatisfied with the adminiftration, and even 
 clamorous againrt it. Nay, I fcarcely can frame tomyfelfany 
 other way of letting his Majefty know that theminiftry he 
 has appointed js bad. However, if a minifter notwithftand- 
 mg fliould continue a favourite at court, and the people be- 
 ing afFcaedwith what was written fhould clamor, and have 
 great reafon for fo doing, I make no doubt but any At- 
 torney-general, upon the flighteft hint from the proper 
 place, would file an information againft the Writer, and 
 charge him at once with endeavouring to alienate the af- 
 fcaions of the people, and to raife traitorous infiirreaions 
 againft the peace ot the King ; altho' it were obvious to 
 every indifterent perfon, that the u^luckv writer had no 
 fuch intention, nay, had been ready on a former occafion 
 voluntanly to afl'ociate for the defence of his Majefty's 
 title, and to venture iiis Jife in the field tofupport it. And 
 yet I am fully convinced, that were it not for fuch writr 
 ings as have been profecu ted by Attorneytwenerals for 
 hbels, we fhould never have had a Revoh/ion, nor his 
 prefent A'iajefty a regal Crown ; nor fhould we now enioy 
 a proteftant religion, or one jot of civil liberty. Kincrs 
 e^n hardly receive any intelligence but what their miniftets 
 
 -: giv? 
 
 i
 
 ( 3t ) 
 
 Cive them, arid thefe gentlemen, being generally guided 
 by avarice and ambition, endeavour to reprefent every man 
 who ftrives to get them difmifTed from their employs, as 
 bne vi^ho is about to attack the throne itfelf, call him trai- 
 tor diredlly, and then exert the power of the crown to de- 
 molifli him. The ufe of the word trrafnnabte is generally, 
 m my confcience, to ^ive them a pretence for difregarding 
 the common rules of Law and Juftice. And if they are 
 queftioned in parliament for what they have done, they 
 are in hopes a majority may be procured to come to a re- 
 folution in their favor, or at worft, to prevent any from 
 being come to againft them. And then, who dares fay 
 they have done aniifs r 
 
 Libels are by no means a " harmlefs fport" ; for truth 
 alone can excufe any man in complaining even of a bad 
 rtiagiftrate : but yet, I cannot think them fuch dreadful 
 things as vindicate minifters in breaking through every law 
 for the fake of coming at the writer* I believe moft fober 
 men, who fee already what lengths fuch profecutions may 
 be carried according to law, and how deeply the liberties 
 of the people may be afFeded by fuch means, are of opi- 
 nion, tliat if fomeof the legal methods of profecution now 
 acquiefced in were done away, the conftitution would be 
 the better for it. The prerogative which an Attorney-ge- 
 neral afTumes of filing an information againft whomfoever 
 he pleafes, is certainly a reproach to a free people ; and 
 if the regular information awarded upon fpecial motion by 
 the King's Bench were likewife taken away, I do not think 
 the conftitution would be injured by it : in which cafe, the 
 old common law method of indidling for a libel, as a vio- 
 lation of the peace, would be the means that every body 
 muft refort to ; and in my own opinion a grand jury * are 
 very competent and the propereft judges, whether any pub- 
 lication be deftrudtive to the welfare of the ftat;eor not. 
 
 Altho' there is as yet no licenfing aft afoot, except for 
 the Stage ; if a!man prints what is fuppofed libellous, either 
 oo the ftate, or any particular perfon, he is liable to be 
 profecuted for it. But people like to fee a profecution go 
 forward in the ordinary way, as was the <:afe with Dr, 
 
 * Sec a valuable trcatifc upon Grand Juries called The Security cf Erg, 
 hjhmcni lA-ves, attributed to Mr. Somers, who not only undcrAeod the con- 
 ftitotipn but loved it. 
 
 E 2 Sheb-
 
 ( ^^ ) 
 
 Sliebbcare : in comparifon with whofe writings, thofe of 
 Mr. Wilkes may really be faid to be ** a mere exercife of 
 wit and talents, and an innocent exertion of the liberty of 
 the prefs." Mankind will ever dillike violent proceedings. 
 Altho* the perfon himfelf may merit the chaftifement he 
 meets with, yet if this be infli6led by illegal methods, it 
 will make every man fear, fhould he raifc the refentment 
 of the miniftry, that himfelf would be treated in like 
 manner, whether he had committed any crime in law or 
 hot. If things are done in one hiftance contiary to law, 
 they may in another. No man is fecurc, when the laws 
 of the land ceafe to be a proteftion. Although the mef- 
 fenger, or the dragoon, be not at my door, yet it is very 
 difliearlening to find that it is no lon2,er in my power to 
 be fecure againft their being there. My liberty is equally 
 gone. 
 
 No neceffities of flate can ever be a reafon for quitting 
 the road of law in the purfuit of a libeller. The attack 
 of this clafs of writers feldom goes farther than the mini- 
 fter, for the fake of bringing in fome other man ; and fo 
 far from being *' of all other the inflance the moft dan- 
 gerous to the public quiet", is certainly not at all fo, if by 
 the Dublic quiet be meant the eftablifhment itfelf. 
 
 The notion of purfuing a libeller in a crhninal way at 
 all, is alien from the nature of a free conftitution.. Our 
 antient common lav/ knew of noue but a civil remedy, 
 by fpcciai adion on the cafe for damages incurred, tq be 
 aflefled by a jury of his fellows. Indeed, thedoilrine in 
 courts of law ufed to be, that " no writing whatever is 
 *' to be edeemed a libel, unlefs it refle6l upon fome par- 
 *' "ticular perfon," There was no fuch thing as a public 
 libel known to the law. In order, however, to gratify 
 fome of the great men, in the weak reign of Richard the 
 2d, fome aits of parliament were palTed to give actions 
 for falfe tales, news, and flander of peers or certain great 
 officers of fiate, which are now termed dc fcandalis viag- 
 natUm. Before that time, or at moft the 3 Edward i. 
 ho mere words were actionable, unlefs fome fpecial da- 
 ftiage? thereby was alleged and proved. Even now-a-davs, 
 the courts of common law will not fuftain actions for 
 nere obfcene difcourfes by word of mouth or writing, or 
 for ribaldry. They leave fuch fpiritual concerns to the 
 ecclcfialtical cenfures of courts chriftian. And it is very 
 
 notorious
 
 < 33 ) 
 
 notorious from hlftory, that the moft fan(Stified and phari- 
 faical miniftries and reigns, when the church has been 
 founded the moft, have been the molt corrupt and 
 flavifli. 
 
 The whole doftrine of h"bels, and the criminal mode 
 f profecuting them by information, grew with that ac- 
 curfed court the ftar-chamber. All the learning intruded 
 upon us d libellis famofts was borrowed at once, or rather 
 tranflated, from that llavifh imperial law, ufually deno- 
 minated the civil law. You find nothing of it in^Vkir 
 books higher than the time of Q^ Elizabeth and Sir Edward 
 Coke. 
 
 But, if any writing fhould be a libel, and be profecuted 
 nlyas 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 profecutor. This 
 end indeed it may anfwer, and a very diabolical one it is; 
 it may fcrve to found a pretence for demanding exceffive 
 bail, which if the fuppofed libeller cannot find, he muft 
 Ire in prifon: however, as there have feveralafts ofparlia* 
 ment paffed from time to time forbidding exceffive bail, 
 particularly the Habeas Corpus aft, and as the Houfe of 
 Commons have even fince iu the cafe of Lord Chief 
 Juftice Scroggs exprefled their deteftation of fuch op- 
 prellion, a Judge is not now fo likely to put this mode 
 of tyranny in ufe. But if the doctrine of iccurity for the 
 peace can beeftablifhcd, I do not fee whatfcould hinder a 
 time-ferving magiftrate, from infilling upon ever fo enor- 
 mous a pledge ^o ww/w^ ; Thejudge might fay, I have taken 
 moderate bail ; but, I found he was a man of parts, much 
 dif-inclined to his Majcfty's meafurcs of adminiftration, and 
 had reafon to think he would ftill write againft them, which 
 could not fail of raifing a dangerous fedition, and therefore 
 I thought the beft" way was to take fuch a pledge for his 
 good behaviour for feven years, as would deter him from 
 writing any thing that could poflibly be deemed a libel ; for 
 if he did, he would forfeit his ciution-money, and That 
 would be fo great a lofs, it would abfolutcly ruin him. 
 I did for the bcfl ; and, I do not know that there is any 
 ftatute which prefcribes any meafure for fecurity of the 
 peace. Now, fuppofing a chief Juftice was to be com- 
 plained of for fiich an oppreflion, as a grofs fraud on the 
 fpirit and intention of the Habeas Corpus ad, and the 
 
 Houfe
 
 ( 34 ) 
 
 tfoufe Tof Commons were to inquire into the matter ; if 
 the adminiftration which he ferved was then prevalent, it 
 might perhaps be very difficult to obtain any cenfure of 
 th? practice ; but, if that could be done, it is highly im- 
 probable they would go any farther j and, at the worll, 
 his Lordfhip would get ofF without any fine upon himfelf, 
 as well as Chief Juftice Scroggs did. To fay the truth, 
 and to fpeak out upon fo material a fubjeSt, I cannnt help 
 imagining that this word treafonahle or traitorous, is ffre- 
 quettly thrown into the charge againft a fuppofed libeller 
 by an Attorney Greneral, for the purpofe of affording 
 colour for the demand of high bail, and, if poflible, enormous 
 fecurity for the good behaviour. 
 
 Had this pra6lice of furety for the peace upon the charge 
 of a libel prevailed in Charles the lid's time, it is incon- 
 ceivable that the legTflature fhould not have mentioned it 
 by name in the Habeas Corpus adl. The patriots who 
 procured that ftatute, 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 perfons impri- 
 fcned for criminal or fuppofed criminal matters , that they 
 had provided for all cafes of mifdemeanor. 
 
 It is no excufe for this novel attempt to fay, that 
 Judges take the fame fureties for appearance and for the 
 peace, and make the one the meafure of the other ; be- 
 caufe they are certainly not obliged fo to do, and might 
 perhaps on fome occafion fee reafon to do otlierwife ; be- 
 ndes, a.man might forfeit his pledges for the behaviour by 
 fome fubfequent imprudence, altho' he might be acquitted 
 of the charge which had occafioned them, and this could 
 never be the intention of any legiflature. 
 
 In fpeaking of fureties, I have not entered into the dif- 
 ference between thofe for the peace^ and for the good behavi- 
 cur ; but the latter are certainly by much the moft to be 
 dreaded. For *' furety of the peace cannot be broken 
 *' without fome at, as an afFray or battery, or the like. 
 *' "Whereas (according to my LordCokej furety de bono 
 *' ^5/^> O"" good abearing, confifts chiefly in that a man 
 *' demean himfelf well in his port and company, doing 
 ** nothing that may be caufc of the breach of the peace, 
 ** or of putting tbe people in fear or trouble." In (hort, it- 
 afFords more room for a latitude of conftriiciion, or for a 
 
 Judges
 
 ( 35 ) 
 
 Judges difcretion, which is very apt to operate againft the 
 fubjecl, and fhould therefore be ftudioufly avoided. 
 
 The truth is, at common law^, furety for the good be- 
 haviour could be demanded in no cafe before conviction by 
 a jury. Binding to the good behaviour was a difcretion- 
 nary judgment, given by a court of record, forao offence 
 at the fuit of the King, after a vcrdidt ; trial by his peers 
 being an Englifliman's birth-right in all charges, not to be 
 taken away but by a<Sl of parliament. 
 
 *' Originally, wardens or confervatorsof the peace, were 
 ** wont to be elected in the full county before the fher iff; 
 " they had only co-ertion or prehenfion in a few cafes, artd 
 *' no jurifdidtion in any caufe. 
 
 " But^ when young Edward the 3d, by the means of 
 *' his mother and Sir Roger Mortimer, had forcibly got 
 ^' poffeflionof his father's crown. Pie inftituted keepers, 
 ^' commiffioners, or juftices of the peace, as fo many 
 *' fpccial eyes and watches over the common people, 
 ^* whereby the elcdion of confervators of the peace was 
 *' taken from the people, and tranflated to the alignment 
 *' of the King. Thcfe juftices were not ordained how- 
 '* ever, to reduce the people to an univerfal unanimity, but 
 ' to fupprefs injurious force and violence againft the per- 
 *' fon, his goods or poffeffions. In this matter of the 
 ** peace (continues Mr. Lambard) the law of God rc- 
 *' fpeils the mind and confcience, the laws of men do 
 *' look but to the body, hands and weapons : and there- 
 ** fore, furious gefture and beaftly force of body (and not 
 *' every contention, fuit and difagreement of minds) is 
 *' the proper fubje6t about which the office of the juftices 
 " of the peace is to be exercifcd." 
 
 Before the 2d of Edward 3, juftices could only report 
 to the parliament ; but, by that ftatute, they had power 
 to punifli difobeyers and refifters. And the 34th of the 
 fame King enacts, *' that in every county Ihall be af- 
 " figned for the keeping of the peace one Lord, and with 
 *^ him three or four of the moft worthy in the county, 
 " with fome learned in the law, and they fliall have power 
 " to rejirain misfea/ersy rioters, and all other barrators, 
 ** and to purfue, arreft, take and chaftife them, accord- 
 *' ing to their trefpafs and offence ; and to caufe them 
 * to be imprifoned and duly puniftied, according to the 
 ^ law and cuftoms of the realm ; and alfo to inform 0/ 
 
 themi
 
 ( 3 ) 
 *' them ; and to inquire of all thofe that have been pii- 
 *' lors and robbers in the parts beyond the fea, and be 
 ** now come again, and go wandring, and will not 
 *' labor as they were wont ; and to take and arreft all 
 " thofe that they may find by indiitment, or by Ajfpicion, 
 *' and to put them in prifon ; and to take of all them 
 *' that be not of good fame ^ where they ftall be found, 
 *' fufficient furety and mainprise of their good behaviour 
 *' towards the King and his people, and the other duly 
 ** to punift, to the intent that the people be not by fuch 
 " r/'^/^rj i?;- r(?^i?/j, troubled nor endamaged, nor the peace 
 ** blemiftied, nor merchants nor others fajftng bj the high^ 
 *' ways difturbed, nor put in the peril v/hich may hap- 
 *' pen of /ac^ offenders." Now, it is plain, this ftatute 
 regards nothing but adlual offenders, rioters, barrators, 
 rebels and highwaymen : and furety for the behaviour can- 
 not be taken thereby, but of thofe who are on ftrong 
 ground fufpe6i:ed of fome fuch actual breach of the peace. 
 This law, neverthelefs, is the origin and the fole foundation 
 for the prefent demand of fureties for the good behaviour 
 before convidlion ; and what is not warranted by the 
 provifions of this a6V, is illegal and unwarrantable, the com- 
 mon law permitting no fuch thing, and the fame being in 
 itfelf derogatory of the rights of a freeman. 
 
 Indeed, fome particular ftatutes in fubfequent reigns, 
 have directed furety for the good Abearing in cafes therein 
 ipecified ; as the iftMary, for difturbing a preacher, or 
 irreverent handling the facrament, altar or crucifix ; the 
 5th Eliz. for taking of fifti in ponds or deer in parks j the 
 23d Eliz. for abfenting for 12 months from church ; 
 the 3gth Eliz. for difturbing the execution of that ftatute, 
 either for the punifhment of rogues, or for the relief Or 
 fetting on work of the poor ; and the 3d James for unlaw- 
 fully hunting and ftealing deer or conies, &c. But, thefe 
 fpecial ftatutes are out of the prefent queftion, and there- 
 fore need not be touched upon here. 
 
 To return then to the 34th Ed. 3. It appears (I think) 
 uncontrovertibly from the penning of that ftatute, as 
 well as from the acceptation of it among our anceftors, 
 and the conftrudlion of antient lawyers, that fecurity for 
 good behaviour cannot be required, but where a man /hews 
 juft caufe to apprehend fome bodily hurt to be done to him- 
 k]f. And in fuch cafe, the peace- magiftrate niufl; con- 
 vene
 
 ( 37 ) 
 
 venc the perfon charged, inquire and find him not to tie 
 of sxcwd tame where taken. He muft examine into the 
 truth of tiie matter alleged, try and adjudge it upon fa- 
 tiladlory teftimony or evidence of the thing, unlefs he 
 faw it with his own eyes, before he can legally demand 
 any furety for good abearing, or know what to take: for, 
 he a^h judicially. In fhort, mainprize for the behaviour, 
 (whether by bond to the King, pledge or caution) muft 
 be bv a regular proceeding of record. In fadt, none but 
 a judge of record (which a juftice of peace is) can take a 
 recognizance, becaufe the acknowlegement of the fum is ' 
 to remain as a matter of record. Every recognizance for 
 the peace is exprtfly direded by the 3d Henry 7, to be 
 certified to the next feflions. And, before the reign of 
 James I, it was not imagined that fecurity for the be- 
 haviour could be taken by one juftice, and all the books 
 in his time recommend two. Nay, binding to the be- 
 haviour, ufed always to be done in open feffions ; and 
 the beft opinions nov/ are, that a juftice a6ls illegally, if 
 he bind any man to his behaviour for any longer time 
 than untill the next fellions of the peace. My Lord Hale 
 fays, '* This binding, tho' expreffed generally, and wlth- 
 *' out any time limited, is not intended to be perpetual, 
 " but in nature of bail, viz. to appear at fuch a day at 
 '* the feflions, and in the mean time to be of good be- 
 *' haviour." 
 
 Indeed, by fupplicavitfrom theChanceryorKing's Bench, 
 a juftice may be commanded to take furety for the good 
 abearing, of any particular perfon ; and then in obedi- 
 ence to the wiit he muft do fo, for he afts only mini- 
 fterially. 7'he fupreme courts, however, are commanded 
 by- '* the 21 ft James I, to grant no procefs of the peace 
 ** for good behaviour, but upon motion in open court, 
 ** and declaration in writing and upon oath, to be ex- 
 *' hibited by the party dcfiring fuch procefs, of the caufes 
 *' for which fuch procefs (hall be granted j the motion 
 *' and declaration to be mentioned on the back of the 
 ** writ ; and if it (hall afterwards Appear that the caufes 
 *' are untrue, the court may order cojli to the partf 
 ** grieved^ and commit the offender till paid.'* Thisa(^ 
 is profefledly by its preamble made to prevent furety for 
 the behaviour being unjuftly '* procured upon oaths pe- 
 *' remptorily and corruptly taken and upon falfe fugge(^ 
 
 F ** tions
 
 f 38 ) 
 
 tions and furmifes," which (hews that it is only to be 
 
 awarded after a folemii examination into the truth of the 
 
 can fe fugCTefted, upon (trong and fjtisiaclory evidence, in 
 
 open court, in the face of mankind. 
 
 What then muft one think of any court of juftice that 
 fhall, upon the caption of a man as a libeller, refufe to let 
 him to bail before he has entered likewife into recognizance 
 for his behaviour, and even that without limit of time? 
 An afpjring Attorney-general, at the inftigation of a 
 pcjcvifh and fufplcious minifter^ may charge any paper as 
 a libd, and any man as the author or publifher ex officio^ 
 without oath or the fhadow of legal proof ! The infor- 
 mation may be filed, procefs taken out and executed, and 
 the fuppofed libeller obliged to become bound in a heavy 
 fum for his good behaviour, without ftint of time ; and 
 yet the information may never be tried, or withdrawn, 
 iior the recognizance releafed I Nay, if the fame perfon 
 (hould afterwards be guilty of any petty conftru<5live mif- 
 demeanor or breach of the peace, it might be pretended 
 that he had forfeited his former heavy recognizance ; fo 
 that he would be puniihed, not in proportion to his real 
 tranfgreflion, btit to one that was only fuppofed ; and this 
 in a country where the law prefumes every man to be 
 innofent until he be found guilty! In plain words, it is a 
 libel on the conftitution to hold fuch dofrine, and in a 
 judge, a breach of his truft (not to fay high treafon) to 
 fupport it. It would render every Englifli fubjed:, by 
 poflibility, a moft miferable fettered flave. Mr. Selden 
 knew well the contrary, and therefore fufFered i.imfelf to 
 be re imprifoned rather than fubmit to fo lawlefs a deman<i 
 of the crown, as that of furety for his behaviour, and 
 thus in his own perfon to afFord a precedent or fandtiora, 
 for what might afterwards be attempted againft others^ of 
 his fellow- fui>je6ts. He was a great lawyer and a true 
 reprefcutative of the people in parliament, in oppofition 
 to the tyrannical procedure of an arbitrary court and its 
 fubfervient judges, that would have held every man //; 
 mifericordia regis, if they could. 
 
 Having fecn what the words of the ftatute, creating this 
 power are ; let us now look at the commilfion for the 
 peace framed in confcquence of it : premifmg that no 
 ufage, royal proclamation, or expofition of a judge, will 
 wake law in this cafe, that is not warranted by theexprefs 
 
 words
 
 ( ^.9 ) 
 words of the ftafiitc, and that the fame being a penal fta- 
 tiite it mufl be conftrued ftrictly. 
 
 The claufe in the old commiflion of juftices of the 
 peace, authorizing them to take furety of the peace or 
 good behaviour, confines the fame to a6lual breaches of 
 the peace, that is, threats of bodily injury or the burning 
 of their habitatfons, and is in thefe words, ** ad onines 
 ** iJlos qui alicui de populo noftro de corporibus fuis^ vel 
 " de incend'io domorum fuarum 7ninas fecerint^ ad fuflfi- 
 " cientem fecuritatem de pace vel de bono geliu, erga 
 " nos & populum noftrum, inveniendam, &c." And 
 the words fettled in James the ill's time and now purfued, 
 are, '* To keep, and caufetobe kept, all ordinances and 
 " Matures for the good of the peace, &c. and to chafiife 
 ' and punifh all perfons that offend, according to the form 
 *' of thofe ftatutes and ordinances; and to caufe tQcome 
 *' before y()U all thofe, who to any of our people con- 
 *' cerning their bodies^ or xht firing of their honfes\f have ufed 
 ** threats, to nnd fufficicnt fecurity for the peace or their 
 " good behaviour, towards us and our people ; and, if 
 *' they fhallrefufe to find fuch fecurity, then them in our 
 " prifons until the (hall find fuch fecurity to caufe to be 
 *' fafel) kept. We have alfo affigned you to inquire the 
 *' truth more fully by the oath of good and lawful men, 
 *' &c. of all thofe in companies againft our peace, in dif- 
 ** turbance of our people, have gone or rode, or here- 
 *' after fhall prefume to go or ride ; and alfo of all thofe 
 *' who have there lain in wait, or hereafter fhall pre- 
 *' fume to lie in wait, to maim or cut or kill our people.'* 
 
 Now, this commiflion is grounded evidently on the 
 ftatute of Edward the 3d, derives its force from it, and 
 needs no comment to apply thereto the feveral parts of 
 it. It confirms abundantly the doctrine I have advanced. 
 Indeed, the legality of requiring furety of good behaviour 
 for Arfon, feems very queftionable, as not comprized 
 within the aft. However, nobody will objeft to it, as 
 being a fecurity againft being burnt In one's bed, by anjr 
 man who (hall threaten, or by lurking about the houfe 
 at night fliall indicate an intention of fo doing. It is mod 
 certain, neverthelcfs, that furety for the peace or the be- 
 haviour could be demanded in no cafe whatever at com- 
 mon law, before conviftion, that it fprings wholly from 
 ftatute law within time of memory, and that the ftatutc 
 F 2 authorizQS
 
 ( 40 ; 
 
 authorizes it only in cafes of real perfonal dano;er ; wficre- 
 fore it may very well be doubted upon what legal bottom 
 it can be extended farther. In the reign of Edward the 
 4tb, it was determined, that it ought not to be granted to 
 a man who fiiall demand it btcaufe he is in fear that an-- 
 other will take and imprifon him ; by reafon that he may 
 have a writ de homine replegiando, or an aciion of falfe 
 imprifonment whereby he may be repaired in damages. 
 This may be too ItriCt a conftruition. But it is a proof 
 that our anceftors thought the ftatute ought to be ft'ri6tly 
 Conftrued,and that furcty of the behaviour was only to be 
 had as a prote6lion from bodily maiming or deflruftion, in- 
 dicated aiid proved by threats of immediate injury, by the 
 wear of dan2,erous and forbidden arms, or by wandring and 
 lurking about highways, and other fufpicious places, in a 
 fufpeded manner. It lias been refolved that this fecurity 
 cannot be demanded for fear of harm to fervants, cattle, 
 or goods J altho' a fervant may demand it for himfelf 
 in his own perfon like any other man : and it is never to 
 be awarded by any magiftrate but upon crediblt oath, 
 or upon his own view, of a fuiEcient caufe. My Lord 
 Coke fays expreily, that " flanderous words are not a 
 ** breach of the behaviour, for tho' fuch words are mo- 
 *' tives and mediate provocations for breach of the peace, 
 ** yet tend they not hnmedlately to a breach of the peace 
 ** like a challenge, 5cc." Many Grange difcretionary de- 
 viations, however, from the words of the llatute, have 
 been made and upheld with forced conftrudfions by judges, 
 in the flux of time ; untill, in the latter end of James the 
 ift's reign, it came to be afTerted by Mr. Daltcn, in his 
 book, that furety for the behaviour could be demanded 
 of libellers. I prefume, however, he muft mean for fuch 
 a libel on fome particular perfon as dire<51;ly and immedi- 
 ately tends to provoke him to hght ; for, I believe, it has 
 been referved toour day, and to the compilementof crown- 
 law by tJerjeant 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 particular perfon not 
 directly tending to an immediate breach of the peace. Be 
 this as it may, the pofition is not warranted by any 
 aft of parliament, and is therefore abfolutely il- 
 legal. 
 
 It
 
 (41) 
 
 It has been refolved " That {edition cannot be com- 
 ** mitted by words, but by public and violent adtion." 
 And my Lofd Coke himfelf (the introdudtor, foUerer, 
 matiirer and reporter of the prefcnt (hr-chamber dodrine 
 about Ibels) relates " that in the 30th of Q. Elizabeth, 
 " one Kino with fureties was bound by recognizance to 
 " appL^ar at the T?ext feffions and in the mean time to be 
 ** of the2;ood behaviour. That he appeared and was in- 
 " dieted \ox flanderous words fpoken," fine e his binding, to 
 a fqulre, namely, Thou art a pelter^ a l;;ar^ and has told 
 my Lord Ihirics^ and for breaking and entring the /quire's 
 clofe and chafing and ijexing his cattle^ and for calling him 
 afterwards a drunken knave. That the indictment was re- 
 moved afterwards into the King's Bench, and there ic 
 was debated divers times both at the bar and the bench ; 
 v;hethcr, admitting all that is contained in the indidment 
 to be true, any thing th.erein was in judgment of law a 
 breach of the faid recognizance. And that it was refolved 
 *' neither any of the word, nor the trefpafs were ^ny 
 *< breach of the ::ood behaviour, for that none of them 
 ** did tend immediately to the breach of the peace, for 
 ** tho' the words liar and drunken knave are provocations, 
 *' yet tend they not immediately to the breach of the 
 ** peace, as if King had challenged the fquire to fight 
 *' with him, or had threatened to beat or wound him, 
 *' or the like, for ti7efe tend immediately to the breach 
 " of the peace, to a trefpafs on the perfon, and there- 
 " fore are breaches of the recognizance of the good be- 
 *' haviour." 
 
 " Surety of the peace alfo (according to fome great 
 " authorities) is not to be granted, but where there is a 
 *' fear of fome prefent, or future danger, and not merely 
 " for a trefpafs or battery, or any breach of the peace 
 *' that is paji ; for, this fort of furety is only for the fecu- 
 ** rity of futh as ^xg in fear." 
 
 Dr. Burn^ after giving a fuccinl and clear hiflory of 
 the fcveral extenfions of thefenfe of theftatute, cafe after 
 cafe, and reign after reign, with ftriking propriety remarks, 
 that " one great inlet, to the larger and it length almoft 
 *' unlimited interpretation of the words, wasan adjudica- 
 ** tion in Henry the Seventh's time, That it was lawful 
 ** to afrefl a man for the good behaviour, for haunting a 
 ** furpe:ted bavydy-houfe, with women oi bad fame ^'^ 
 
 and
 
 ( 42 ) 
 
 and concludes with the following judicious reflections. 
 ** Thus the fenfe of this ftatute has been extended, not 
 '* only to offences immediately relating to the peace, but 
 *' to divers mifbehaviour not dirc6lly tending to a breach 
 " of the peace j infomuch, as it is become difficult to 
 *' define how far it fhall extend, and where it fhall ftop. 
 *' Therefore, the natural and received fenfe of any ftatute 
 ** ought not to be departed from without extreme necef- 
 *' fity ; for, one conceffion will make way for another, 
 " 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, I hope, 
 no crown Judge will ever prefume, for the future, to do 
 more than jus d'tcere^ and not dareyz/j dare. Every day 
 makes one more fenfible of the wifdom of Arijlotle^s coun- 
 fsl in making laws '* ^mad ejus fieri poffit, quamplurima 
 *' /^^/^^ /)yJi definiantur, quam pauciffima y^;t7V <7r^//r/V 
 *' relinquantur." If Judges are not bound faft with 
 chains of laws.^ cufioms^ ordinances andjiatutes^ it is Tm- 
 poiUble to divine what a fervile Chief Juftice may not one 
 day give out for law, to gratify the fpleen of an anxious, 
 confcience-ftung, and dcte^ed minifter. * And fuch a 
 horror have I, particularly, of the introdudlion of any 
 new criminal hw into this country, that, were it to hap- 
 pen, rather than fubmit thereto, I fhould be even for 
 accompanying a noble Law-lord to Ultima Thule^ which, 
 by the fhiver he fpoke it with, I guefs muft be Scotland, 
 the very northern fcrag or bleakeft barebone of the ifland. 
 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 prcfied to enter into a recognizance, 
 ** They faid, they were informed that no man was ob- 
 ** liged to enter into recognizance, unlefs there were 
 ** fpecial matter againft him, and that there was oath of 
 *' it made againft that perfon ; and at laft they infifted 
 *' there was no precedent that any member of the Houfe 
 " of Peers fliould be bound in recognizance y^r mifde- 
 
 * Whoever is inclined to enter fully into this important part of the law. 
 Surety for the beha-viour, fliould confult Marrow, Crompton, l^mbard'* 
 iircnarchy, Pulton de Pace, Fitrherbert's and Burn's Juftice, &c. 
 
 ** meanor.
 
 ( 43 ) 
 
 '* msanor. The Lord Chancellor (Jeffreys) faid there 
 *' were 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 
 ** warned him of this." Let me aflc then, whether the 
 privilegje of parliament is greater in one houfe than in the 
 other ? 
 
 Whether the warrant of Lord H. was only for a feditious 
 or for a feditious and treafonable libel, makes no difference. 
 The fal indeed is, that the * warrant, which was for 
 apprehending perfons and papers, does not mention the word 
 libel at all, but ufes the terms, a feditious and treafonable 
 paper j and the fecond ** warrant, which was for com- 
 mitting Mr. Wilkes to the Tower, makes ufe of the 
 terms, a moji infamous and feditious libel. So that there 
 is a diverfity of denomination and defcription obferved by 
 the drawer of the warrant, whether the fame were the 
 Secretary of ftate, his law clerk, or the folicitor to the 
 treafury. Then comes the Attorney General, who files 
 
 his 
 
 * George Montagu Dunk Earl of Halifax, Vifcount Sunbury and 
 Baron Halifax, one of the Lords of his Majefty's moft honourable 
 Privy Council, Lieutenant General of his Majejiy^ s forces, and prin- 
 cipal Secretary of State. 
 Thefe are in his Majefty's Name to authorize and require you (taking a 
 conftable to your afliftance) to make ftrift and diligent fearch for the authors, 
 printers and publiftiers of a feditious and treafonable paper intitled the North 
 Briton Numb, 45. Saturday April 22, 1763, printed for G. Kearfly in 
 Ludgate-ftreet, London, and tiiem, or any of them, having found, to ap- 
 prehend or feize together with their papers, and to bring in fate cuftody be- 
 fore me, to be examined concerning the premiflcs and further dealt with ac- 
 cording to law. And in the due execution thereof, all Mayors, Sheriffs, 
 Juftices of the Peace, Conftables and all other his Majefty's Officers civil an^ 
 military, and loving fubjefts whom it may concern are to be aiding and aflift- 
 ing to you, as thtre fhall be occafion, and for fo doing this fhall be your war- 
 rant. Given at St. James's the 26th day of April, in the 3d year of his 
 Majefty's reign. 
 
 Dunk Halifax. 
 To Nathan Carrington, John Money, 
 James Watfon and Robert Black- 
 more. 
 
 Charles Earl of Egrcmont and George Dunk Earl of Halifax, 
 Lords of bis Majefty's moft Honourable Privy Coyncil and prin- 
 cipal Secretaries of State. 
 Thefe are in his Majefty's name to authorize and require you to receive 
 into your cuftody the body of John Wilkes, Efq; herewith fent you for being 
 the author and publilher of a moft infamous and feditious libel, intitled, the 
 North Briton, Number 45 ; tending to inflame the minds and alienate the 
 aftectioas of the people from his Majefty, and to excite them to traitorou* 
 
 infufa
 
 (44) 
 
 Ill's information ex officio aeainft the writer, and charges 
 him with writing a libel. Now, /.'^ ceitainiy knows what 
 he is about, whether the others did or not ; and therefore 
 there is no longer any room for difpute about the crime, 
 it is afcertained. Indeed, the King's mefTiige * to the 
 Houfe, delivered by the Chancellor of the Exchequer touch- 
 ing the fame paper, calls it no more than a moft feditious 
 and dangerous libel, and the Refolution of the Commons 
 execrates it but as a falfe, fcandalous and feditious libJ. 
 
 But a decifive argument upon this head is, that had the 
 charge been other than a mifdemeanor, it could not have 
 been profecuted in this way ; for, no information will lie 
 for a capital crime, or for mifprifion of treafom The fta- 
 tute fays, itfhall not lie for life or limb. 
 
 It is childifh therefore to afk, whether the printing of 
 any particular iihel, as for inftance, of the North Briton 
 N". 45, ** is to be conP.dered as no higher an offence than 
 publifhing a libel ?'* The Attorney fays, ** had it been 
 *' adjudged to have excited, inftead of tending to excite, 
 ** it would have been no lefs a crime againfl the State, 
 *' than that of high treafon, without any palliation what- 
 *' ever:'* to which I can only fay in a plain way, that had 
 it been adjudged to liave been lometbing elfc than a libel, 
 it would not have been adjudged what it was ; for, I do 
 not know that any law- logic ever proved libel and high 
 treafon to be convertible terms. No two offences can be 
 more diftinft in their nature or kind. One \s by conjiruc- 
 tieny a breach of the peace, and the other is the higbefl of 
 all capital crimes, by exprefs ftatute. 
 
 To compafs or to imagine (that is to excite to, or in- 
 tend) the death of the King, is High Treafon, and is pu* 
 
 nifhed 
 
 infarrwQions againft the gyernment. And to keep him fafe and f/s/i, until 
 he BuW be delivered by due courfe of law ; for fo doing this fliall be your 
 warrant. Given at St. James's the 30th day of April, 1763, in the 3<! 
 vEii- of bis Majefty's reJgn. 
 
 Egremont. 
 
 Dunk Halifax. 
 
 To the Right Honourable Lord John 
 Berkeley of Stratton, Conflable of 
 his Majesty's Tower of London, ar 
 to the Lieutenant of the faid Tower 
 or his Deputy. 
 
 Vide the Printed VotBS of Taefday Kov. 15. 1705.
 
 ( 45 ) 
 
 hifhcd with lofs of life, by hanging, drawing and quartering, 
 whether the King be killed, or even hurt or not. But 
 this doflrine holds in no othet* crime whatever. For, in 
 petty treafon, which is the next greatefi: crime that the lavf 
 knows, and which is the murder of a hufbandby the wife, 
 br of the mafter by the fervant, the inciting of others to 
 perpetrate the fatfl, or any attempt to do it onefelf, withf- 
 out effe<5l, is only punifhable as a mifdemeanor and as aa 
 ailault. Let us not then be fo impudently impofed upon 
 as to be told, that every ftep we take in queftioning the 
 afts of a minifter, is high treafon. Every London or Weft- 
 minfler mob, every riot, every abufeof adminirtration or 
 of 3 party ; every remark or animadverfion upon a pro>- 
 clamation, or upon a fpeech from the throne, or, in (hort, 
 upon any other public meafure of the miniftry will in this 
 way of reafoning foon be deemed Treafon, to the difgrace 
 of ourfelves, thedifhonour of our conftitution, and the lofs 
 of the rights of a free people. 
 
 In truth, I likewife fuppofe the Attorney General know 
 his bufinefs too well to denominate any offence a libel, and 
 to profecute it by information only, if he means to have 
 it confidered as high treafon. 
 
 Indeed, I have heard in difcourfe, that a certain laborious 
 minifter has whifperedmany of his friends, *' whatever they 
 * ' might hear from others, that the law-officers of the crown 
 '* had afTuredhim, Mr. Wilkes might have been profecuted 
 *' for high treafon ; but however, they were not willing 
 *' to pufh things d^inft him to the utmoft." Anaflertion 
 that is fcarcely to be parallelled (I believe) for its folly, 
 profligacy or effrontery ; and which, in a country where 
 nothing can be done but by law, defer ves no other anfwer 
 than thi?, " I wifti you had attempted it, for, if you had, 
 k would have ruined you, and you would have dcferved 
 *' it, as the only adequate reward for your pains." The 
 Epping-foreft cafe would not warrant this pofition, I can 
 .afTurehim; and I am certain he has a private friend, a 
 candid lawyer, who would ftronglydifTuadehim from really 
 making fo ridiculous an attempt. I fay this, becaufe I 
 fijppofethe minifter himfelf, is now become fo Right Ho- 
 nourable, that he ceafcs any longer to be learned in the 
 laws of his coimtry. 
 
 *' 'T\]c E. of Briflrol, having exhibited a charge of Trea- 
 ** fon ag.iinft the E. of Clarendon, allcdged, That he had 
 * endeavoured to alienate the affcdtions of his Majefty'a 
 *^- G " fubjeas,
 
 *'.rub]cas, by v.entinc: opprohious fcanda/s againft Kts U^- 
 
 ^^ jefty's per/on, and that he had traduced ^^/y?^ houfes of 
 
 ' parhament. The Judges were ordered to o;ive theif 
 
 ' opinion whether this be any treafon or no ? They unani- 
 
 *' moufly agreed, That if the matters alleged in the charge 
 
 were admitted to be true, altho' alleged to be traito- 
 
 toufly done, yet there is no Treafon in it." 
 
 il ^u^ ^'^^"' '^ ^^ Attorney angry with any other man 
 
 'fer talkmg of No. 45, as a libe! ? He himfelf, ivith all 
 
 his elaborate perplexity of language, can tell no more ? 
 
 Why need he fearch for words to denominate " feditiou? 
 
 *' writings, a fubtle poifon, the feed of jealoufv, revolt 
 
 " and difcord, the parent at leaft, if not the offspring, 
 
 '' of treafon ?" (Or why not both parent and offspring 
 
 at one and the fame time : tl->e kn(e will not be hurt, and 
 
 the creed be more orthodox ?j In every light he can put 
 
 thqfe writings, they will appear the fame, their nature will 
 
 not al^er, they will ftiU 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- 
 cies, fome having more and others lefs wit, fome beipg 
 more and others lefs perfonal, fome levelled againft theefta- 
 ^lifhment,2nd others againft that varying thing a miniftry. 
 For example. The Sixth Letter to the People of England 
 was amoft grofs attack upon the prefent conftitution and 
 fucceffion ; hut The Teji, the Letter verjlfiedy and Radondo, 
 were merelv perfonal abufe upon Mr. Pitt, his Lady, and 
 her eldeft Brqther. Mock-Patrlotifm took a middle flight 
 between the abufe of one or two individuals, and that of a 
 whoJc party ; altho' for the beauty of its images, the 
 mppinefs of Its allufiorvs, and t>ie eleaance of its expref- 
 fions, it was rara avis in this predfcament of writers : 
 none of v^'hom however were without fome wit and merit ^ 
 excepting always, the dull and rancorous Jicobite firft 
 namefl. In truth, ahufive fatire has been dealt in prettv 
 equally of all fides, and the onlj mcafure has been the abi- 
 lities of the refpeaive penmen. When fomcbody ftiewed 
 a North Briton to old Johnfon, turning his definition of a 
 penfioner upon himfelf, he very clevedy anfwered, ** It 
 " is fair enough, I have no reafon to complain, 
 
 *' Nee lex jujiior ulla 
 ** ^nm necii artijices arte perire fua,** 
 
 After
 
 ( 47 ) 
 
 After all, the Attorney himfelf cannot help fpeaking of 
 the compofition of libels as an exercife of wit, and there- 
 upon " fuppoling the author of T'he Budget may chufc by 
 *' and bye to amr4p himfelf this very way ;" and then 
 roundly charges this gentleman *' with perfonal indecency 
 *' and his" fuppofed *' friend with acrimony, envy, fpleen, 
 " conceitednefs and felf-impqrtance" as mere flowers, I 
 prefume, of rhctorick, well nteoming the pen of a miin- 
 tterial writer againft libels. And, he fpeaks of the ruin of 
 g virtuou55 patriot by an information, with as much glee, 
 43 an old letcher does pf the debauching of a comely virgin 
 by ravifhment. 
 
 Nobody without doors thinks the cafe of any " libel 
 juftifies ftrongly," or at all, *' the pra<ftice of general 
 warrants," if it were only for this r^afoji, that every party 
 againft whom a Ijlxl is levelled, always chriftens it fedi- 
 tious, trcafojiable and what not ; and yet, whether it be 
 ajjy libel at all, no man has a right to pronounce, before 
 a Jury of the country has determined it to be one. They 
 are likewife lefs neceflary in this than any other ofFence,' 
 becaufe the publilher nauft, always be known and may be 
 come at, whether the author be fo or not. And " it \yould 
 " be (as Hawkins fays) extremely hard, to leave it to the 
 " difcretion of a common officer to arreft what perfons, and 
 " fearch whathoufes he thinks fit: and if a Juftice cannot 
 *' legally grant a blank warrant for the arreft of a fingle 
 " perfon, leaving it to the party to fill it up, furely he cannot 
 *"' grant fuch a general warrant, which might have the 
 '* effet of an hundred blank warrants." 
 
 With refpeiS to the warrant of Lord H. if the form 
 had really been according to the " uninterrupted pradice 
 *' of the Secretary of State's office." This would not 
 have made it legal. But even this is not a fat ; for one 
 cannot help remarking, that the old Tories under Queen 
 Anne, the Revolution ftill tingling in their ears, were ex- 
 ceedingly cautious, confuting council, probably upon th 
 warrant itfelf, before they ventured to take up a fubje5l j 
 infomuch, that all the warrants even of Lord Bolingbroke, 
 whilft he was Secretary of State, appear to be ftri(511y legal. 
 In truth, there has been no uniform pradlice in the office, 
 as may be feen by the variant and multiform warrants 
 printed from thence in ^arta^ and privately diftributed 
 U a to
 
 ( 48 ) 
 
 to trufty friends by P. C. W. with the infcriptlon of moji 
 fecret. Much lefs would precedents only from the time 
 of the Revolution be fufficient to jujiify fuch an illegal 
 pradlice. And as to the pretence that this pratice " did 
 *' not then take its rife, having been frequent in former 
 ** reigns, reaching back /><?r/;<7^^ to thq remoteft times, and 
 ** combined with the very eflence of government," it is 
 totally groundlefs ; for, after the moft diligent fearch, no- 
 warrants of a fimilar form could be found higher than the 
 reign of the Stuarts, but few of them, and of thofe few 
 hardly more than one of an an ti enter date than Ben net 
 Lord Arlington, Secretary to Charles the 2d. From fuch 
 premifes, however, this hardened writer would infmuate, 
 that perhaps they were ufed in the remotefl: times, and are 
 of the efTence of government. This notable antiquity of 
 office is indeed furtlier 'fupported by a note, which takes 
 notice that the aft of Henry the 8th, fettling precedency, 
 mentions, among other officers, the King's Secretary. 
 It does fo. And what of that ? This was the aera of the 
 reformation of Religion j but, I never heard before it was 
 the commencement nf civil government. No prior men- 
 tion, however, of King's Secretaries, as officers of State, 
 could I fuppofe be found, and therefore this or none 
 mufl be cited. Is this now^ in the name of common 
 fenfe, a proof of immemorial exiflencg ? The faft is, in 
 antient times, the King had only a private Secretary for 
 his Privy Council ; there was no fuch perfon as a Secretary 
 of State. He is the production of times within memory 
 (to fpeak as a lawyer;) and none of the many books 
 which treat of the great officers of State, and the jiula 
 Regis, mal^e any mention of fucj;i a Being, The 2d of 
 Richard II, which gives ihe zGCxon of Scandalum magnstuniy 
 in the enumeration of great officers of State, does not 
 notice either the King's Secretary or the members of his 
 Privy Council. There is no mention made by Fortefcue^ 
 I^ord Ch^ncel'or 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 
 apd the great officers about the throne, of the Secretary. In 
 truth, the Secretary's confequenceand power arofe from his 
 being admitted a member of the Privy Council, and as fuch 
 alone it is that he can pretend to the power of commitment. 
 T|iis does not make him, however, a Juflice of Peace, and 
 
 more
 
 ( 49 ) 
 
 more authority he never claimed. To render him fo, it has 
 of lute been always the practice to infert by name every 
 Privy Counfellor into the commiflions of the peace, that 
 from time to time pafs for the feveral counties. So that 
 the two grounds fuggefted as an authority for the ifTuino; of 
 thefe General Warrants, namely, the conftant exercifc 
 and ufage of them, and the antiquity of the Secretary of 
 State as a Privy Counfellor, both fail. But, had they 
 both been good, they would not have authorized thcfe 
 warrants ; becaufe, a practice of the like fort, muft b^ 
 fupported by uniform ufage j and the warrants produced, 
 differed fo much in their form, that hardly any three of 
 them were exactly alike. The greateft part too of the 
 warrants offered in proof of this cuftom and pretended 
 right, were iffued in the times of rebellion ; when men are 
 rtot likely to call in queftion fuch a proceeding, the extre^^ 
 mity of the cafe making them wink at all irregularities, 
 for the fake of fupporting the proteftant eftablifliment 
 itfelf. And yet, bad men, as one may eafily figure to one 
 felf, will be apt to lay firefs upon fuch adls of neceflity, 
 as precedents for their doing the like in ordinary cafes, 
 and to gratify perfonal pique, and therefore fuch excefles 
 of power are dangerous in example, and fliould never be 
 excufed, bnt when it appears that government could not 
 be defended or upheld without actual recourfe to them. 
 But, even if the ufage had been both immemorial and 
 uniform, and ten thoufand fimilar warrants could have 
 been produced, it would 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 inconfiftent with, and in dire<St oppofition to, the 
 firft and cleareft principles of law. Immemorial uniform 
 ufage will not even fupport the bye-law of a corporation, 
 if it be flatly repugnant to the fundamentals of the com- 
 mon law ; much lefs, will it authorife the fecret practice 
 of a political office. In one word, no warrant whatever, 
 in any cafe or crime whatever, that names or defcribes no- 
 body in certain, is good, or can bejuftified in law, in any 
 circumftances whatever. Therefore, if that point alone 
 had been put in queftion, I do not fee how any ** thinking 
 *' and honeft man could havp fairly voted againft it." 
 The law is too well eftabliftied to be rendered doubtful, 
 l)y all the dexterity of the Attorney or his Coadjutor. 
 
 E=gh$
 
 ( 50 ) 
 
 'Eifrht years of ingenious judicature will fcafcely accom- 
 pHih fo arduous a tafk. 
 
 The Attorney might as well fay, that Lord H. when 
 ufing the power of a Juftice of the Peace by virtue of his 
 office of Secretary of State, could make an illegal war- 
 rant as a Magirtrate, good as a militarv officer, by ftyling 
 himfelf Lieutenant General of his Mnjejifs Forcei^ and 
 commanding all military officers to ajfftjl as there Jhall be occa- 
 fion. The circumftance, tho' new, I am ferioufly of opinion, 
 is as good an argument in Jaw, as what can be derived 
 from the ufage of a Secretary of State's office. 
 
 Moreover, it is not true, even in a political fenfe, that 
 a declaration of the illegality of all General Warrants what- 
 ever, would " take away from the executive power, an 
 ** authority which may be frequently found eirential ta 
 *' the very being of the State." For, if in cafe of High 
 Treafon (the only crime that need ever occafion a ftretch 
 of authority, and even That very rarely) there fhould be 
 a neceffity for the apprehenfion of people, whofe names, 
 or aity certain defignatlon of their perfons, could not be 
 Jiad, and this was made afterwards to appear ; as That is 
 a crime which tends to the diflblution of the whole frame 
 of government, there is no doubt but the minifter would 
 be excufed for the dictatorial power he fhould exercife, pri> 
 falute Reipublica, upon fuch an emergency. But I would 
 have fuch things as emergent neccflities applied to his par- 
 don, and not to his juftification. 
 
 Therefore, I fee no reafon why a rnan fliould not vote 
 for the condemnation of General Warrants in all cafes, 
 without limiting his damnation to General Warrants in 
 the cafe of feditious libels. " The propofitions are dif- 
 ferent," but in the eye of the law, thefe General Warrants 
 are in both cafes equally illegal. In fhort, if this was not 
 tiie conftitution, 1 think ** we might amufe the public 
 with the found of liberty," but {bould really enjoy none. 
 If fuch warrants were to be allowed legally juftifiable in 
 any inftances, it would be exceedingly difficult, nay, im- 
 poffible, to reftrain Minifters from grievoufly oppreffing 
 any man they did not like, under many pretences, from 
 time to time, for their own fafety, without any motive of 
 public good. I agree, therefore, with the Attorney, in 
 faying, that " if the liberty of the fubjed be the great 
 
 " objea
 
 ( 51 ) 
 
 ** obje6l in view, and be incompatible with Gentnf 
 " Warrants in one inftance, it is inconfiftent with the 
 *' fame warrants in any other. There is no exception to 
 "' be made to our general reafoning." The grievance ex* 
 tends to all perfons, of all degrees, of all qualities ; it is 
 commune per'iculum. 
 
 As to the fuggeftion that experience has proved *' there 
 " is only a poffibility of danger to the liberty of the fub- 
 :*' je6l, from the exercife of this power," it is a moft 
 flippery argument, and of no real weight whatever. 
 
 For, in the firft place, thefe warrants have been rarely 
 exefcifed, 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 pracSlifed with fome 
 tendernefs at firft. Tyranny grows by degrees. Befides, 
 few common men have private purfes fufficient to contend 
 with That of the Public and the power of the crown, both 
 of which are ufed by every Minifter, to the utmoft extent, 
 upon fuch occafions. Sometimes too, the private profe- 
 cutor is bought ofF. 
 
 In the next place, if the experience of thefe warrants 
 had been fo great, and no mifchief to the fubje<9: had hi- 
 therto enfued ; yet, who, in a very momentous concern, 
 nolefs than the liberty of every man in England, would let 
 even a poffibility of abufe remain, that was able to get rid 
 of it. It is not within the power of any legiflaturc, to 
 prevent every private man or minifter from committing 
 abufes by an infraction of the law; but, I think, no wife 
 legiflature would give fuch a fanSion 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'a Bendi had ad- 
 ** mitted perfons to bail, apprehended under fuch war- 
 ". iants, jnftead of giving them their full difcharge, and 
 J' tiiat this circumftance is of fo much importance to the 
 V queftion, of the legality of the warrants, that in the 
 ^' opinion of an old experienced and able Lawyer upon 
 *' the Qccafion, who will ev^er be efteemed an honour to 
 " hia pnofeffion, it implies no lefs thaa an imputatian of 
 " pprjury, to fuppofe fuch practife to have prevailed in 
 
 " the
 
 ( Si ) 
 
 '*^ the Court of King's Bench, urilefs the legah'ty of the 
 *' warrants had been at the fame time acknow]ed<^ed by 
 ** that Court." Now, who this old Lawyer is, I don't 
 -know, nor the date of the friendship between hinl and th* 
 Attorney. But, if I were to guefs, it muft be fome antiquated 
 Tory, who till lately was as uniformly againft, as he now is 
 uniforrhly for, all meafures, and who only comes out up- 
 on extraordinary occafions, with a grave face, to do ek- 
 traordinary Work. One of your ftaunch men, that goes 
 plump through thick and thin, and to advance fuch doc- 
 trine, murt, I think, have gone through the thickeft of 
 it, and confcquently appear in a very dirty light to all o- 
 "ther Lawyers upon his emerging. I 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 confcience, he could find no one Lawyer 
 befides to countenance him in fuch dotrine; or, if ht did, 
 It muft be fome old gentleman of the fame Tory kidney. 
 Now, the Tory-principles are fuch, that I fbould have 
 been much better fatisfied f the truth of this dogma, had 
 rthe Attorney himfelf diretly affirmed, upon the credit of 
 Jiis own charafler as a Lawyer, that an admiflion to bail 
 under a General Warrant, proves either the warrant to be 
 legal, or the Judge to be perjured. But, it is very Angu- 
 lar that the Attorney will not affirm any thing of himfelf 
 in this matter, any more than he did upon the article of 
 ufage, but chufes to flip in the afTertion of fome antient 
 invalid, or mi/es emmtus, for the purpofe, whom he puts 
 in the front of the battle ; and then, if he can but pick 
 p fame other fuperannuating ftager, of the like original 
 conco6hon, he will, of the two, form a moft excellent 
 forlor/t hope. By the bye, if any veteran Black Letter 
 could be brought up to fuch an affirmation, in a grave 
 ^n4 fc-rious manner, as amicus curia, I (hould think, un- 
 <Ief hny other than the prefent Whig'adminiftration, -his 
 ierit would be fo tranfcendent, that he might expedl 
 jtiie Minifter's intcreft for a peerage for himfelf, or- o- 
 therwife for his fon, as he Ihould like bcft. At this time, 
 however, I fhould imagine, he would only find he .hai 
 abfolutely thrown away his cbarader to no purpofe at 
 all. Old Hunters fay, there is nothing like trying a 
 man at once at a fw bar gate j for, if he ventures to 
 
 tike
 
 '( ss ^ 
 
 ftike tlial, you may be fure of his going over every thing 
 elfe with eafe. 
 
 After all, let me afk, Does the Court of iiT/w^'j BeHcb^ 
 or any other court, when a man is brought before them, 
 examine into the vi'arrant, unlefs the perfon apprehend- 
 ed makes an objedlion thereto ? Nay, is not the very con* 
 trary every day's experience ? Is it not even the defire of 
 the party taken up, nine times in ten, to be bailed ; as 
 he knows, upon his difcharge from that arrcft, another 
 warrant in a regular form would be ijnmediately iflued ? 
 Would it be right therefore in a Judge to fcrutinize 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 adl of courfe is an acknowlegement 
 by the Court of the validity of the Warrant, or of the re- 
 gularity of the arreft. Every apprehenfion 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 j or that a 
 Judge never tries a caufe at niji prius^ until he has examined 
 the whole of the procefs, and feen all to be regular. NoWj 
 I will venture toafErm that Judges never examine the pro- 
 cefs at all, unlefs one of the parties move the Court fpeci- 
 ally for the purpofe. Confenfus tdlit errorent. And, no 
 man ever fuggefted that they broke their oaths by not do- 
 ing this tx officio ; indeed, if the extravagant doftrine here 
 advanced were true, not one of the prefent reverend bench 
 could now be free from perjury, in fhort, fuch a fpeech, 
 if it were made, is a proof of nothing, but the (hameleft 
 length to which party is capable of carrying a Tory : 
 for, no lawyer ever prad^ifed 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 inftances, which 
 flatly contradi<Si: this violent pofition. Every common 
 lawyer of a year*9 (landing can vouch the contrary. 
 Nay, were it not fo, the Attotney knows it to be a 
 maxim among lawyers, that *' what is done without de 
 ** bate, or any argument or confidcration had of it, makes 
 * the authority of a precedent to be of no force in point 
 * of law: for, judgments and awards, given upon delibe- 
 ** ration and debate, only are proofs and arguments of 
 ** weight ; and not any fudden adt of the court without 
 * debate or deliberation. 
 
 H The
 
 (54) 
 
 The Attorney fees nothing alarmmg in the fcizure of 
 a Member's papers and bureaus upon the charge of a libel 
 only, and reproaches a late writer with " heightening the 
 *' the picture upon this occafion, by the introduction of 
 " facks and meflengers." Now, I underftand nothing is 
 mentioned by this writer, that was not an undoubted 
 fact, and, if I know the Attorney aright, he likes to de- 
 bate upon a fat, and for that reafon would throw every 
 circumftance into a cafe, however unnecefl'ary this may 
 feem to many people, who think it beft always to argue 
 and determine upon the general principle. Provided then 
 the fa<^ be fo, I can frame to myfelf, no circumflance 
 capable of adding to the terror of fuch a fcene, whilft 
 laws exift, unlefs it be the reprefentation of the whole 
 as tran faded, and by particular order, at midnight. I 
 chufe, however, not to dwell upon this lawlefs part of 
 the ftory, and, as my fon in his letter hath faid a good deal 
 about the abfolute illegality of the feizure of papers, I 
 iiiall here fay very little more concerning this abominable 
 outrage; altho', I think it, to ufe the words of Mr. 
 Somers, '* the worft m?.ans to ; arrive -at therworft ends 
 ** .imaginable." 
 
 - ^According to my notions, no words can convey to th^ 
 mind of. the reader, the anxiety which a man may feci 
 from fuch a diftrefs. Many gentlemen have fecret cor- 
 refpondences, which they keep from their wives, their re- 
 lations, and their bofom friends. Every body has fome 
 private papers* that he -would not on any account have 
 revealed. A lawyer hath frequently the papers and Se- 
 curities' of his clients ; a merchant or agent, of his cor- 
 tefpondents. What then, can be more excruciating tor- 
 ture, than to have the loweil of mankind, fuch fellows as 
 JMooney, Watfon, and the reft of them, enter fuddenly 
 intohhs houfe, and forcibly carry away his fcru tores, with 
 all his papers of every kind, under a pretence of law, ie- 
 caufe the Attorney general had, ex officio^ filed an infor- 
 mation againft the author, printer and publifhcr of fome 
 pamphlet or weekly paper, and fomebody had told one of 
 thefo greyhounds that this gentleman was thought by fome 
 people to be the author 1 Thefe papers are immediately 
 to be thrown into the hands of fome clerks, of much curi- 
 ofity, aivJ of very little bufinefs in times of peace, who 
 will, upon being bid to fort and fele<i.f thofe that relate to 
 
 fuch
 
 ( S5 ) 
 
 fuch and fuch a particular thing, naturally amufe them- 
 fclvcs with the perufal of all private letters, memorandums, 
 fecrets and intrigues, of the gentleman himfelf, and of alL 
 his friends and acquaintance of both fexes. In the hurry 
 too of fuch a bufinefs, notes, bonds, or even deeds, and 
 evidence of the utnioft confequence to private property, 
 may be divulged, loft, torn or deftroyed, to his irreparable 
 injury. 
 
 I will now, for a moment, fuppofe that this gentle- 
 man had alually wrote, in the hours of his wantonnefs of 
 folly, fomething that was really abufive and fcandalous 
 upon fomc particular minifter, or upon the adminiftration 
 in general. Even in fuch a cafe, would any gentleman 
 in this kingdom reft one minute at cafe in his bed, if he 
 thought, that for every loofe and unguarded, or fiippofed 
 libellous expieflion, about party-matters, he was liable 
 not only to be taken up himfelf, but every fecretofhis 
 family made fubjet to the infpe<5tion of a whole Secre- 
 tary of State's Office, or indeed, of any man or minifter 
 whatever, whilft a parliament was fitting, or had even an 
 exiftence in the country. 
 
 Such a vexatious authority in the crown, is inconflftent 
 with every idea of liberty. It feems to me to be the 
 higheft of libels upon the conftitution, to pretend, that any 
 ufage can juftify fuch an al of arbitrary government. The 
 laws of England, are fo tender to every man accu fed, 
 even of capital crimes, that they do not permit him to be 
 put to torture to extort a confeflion, nor oblige him to 
 anfwer a queftion that will tend to accufe himfelf. How 
 then can it be fuppofed, that the Law will intruft any of- 
 ficer of the crown, with the power of charging any man 
 in the Kingdom (or, indeed, every man by pofiibility and 
 nobody in particular) at his will and pleafure, with be- 
 ing the author, printer or publiftier of fuch a paper, being a 
 libel, and which till a jury has determined to be fu, is 
 nothing ; and that upon this charge^ any common fellows 
 under a general warrant, upon their own imaginations, or 
 the furmifes of their acquaintance, or upon other worfe 
 and more dangerous intimations, may, with a ftrong band, 
 feize and carry ofFall his papers ; and then at his trial pro- 
 duce thefe papers, thus taken by force from him, in evi- 
 dence againft himfelf; and all this on the charge of a mere 
 jpiir4emcanor, in a country of liberty and property. This 
 
 H 2 wou)(i
 
 ( 56 ) 
 
 would be making a man give evidence againft and accufe 
 himfelf, with a vengeance. And this is to be endured, be- 
 caufe the profecutor wants other fufficient proof, and 
 might be traduced for afting groundlefly, if he could not 
 get it ; and becaufe he docs it truly for the fake oi (ollei- 
 ing evidence. 
 
 I fhould not have given myfelf the trouble of faying thus 
 much in fo plain a matter, had it not been for a letter 
 which was printed fome time ago, upon this fubjedl, with 
 the names of two noble lords, fecretaries of ftate, fub- 
 fcribed. It is dire6ied " to Mr. Wilkes," dated " Great 
 *' George-ftreet, May the 7th, 1763," and contains thg^ 
 following exprefTions ; 
 
 '* S I R, 
 ** In anfwer to your letter of yefterday, we acquaint 
 you, that your papers were feized in confcquence of the 
 heavy charge brought againft you, for being the au- 
 thor of an infamous and feditious libel, for which, not- 
 withftanding your difcharge from your commitment to 
 the Tower, His Majefty has ordered you to be pro- 
 fecuted, by his Attorney-general. Suchof your papers 
 as do not lead to a proof of your guilt, (hall bereftored 
 to you : Such as are neceflary for that purpofe, it was 
 our duty to deliver over to thofe, whofe office it is to 
 coUeSf the evidence, and manage the profecution againft 
 you. We are 
 
 *' Your humble Servants, 
 
 ** Egremont. 
 
 ** Dunk Halifax." 
 
 Here now is a clear avowal of the principle of taking 
 theie papers. The evidence indeed, feems to have been 
 (alleged with as much force, and I believe with as littje 
 right by law, as fome other colleftions are made for which 
 the collectors are hanged when taken, I cannot but fay, 
 therefore, I am very glad this letter has been publifhed, 
 that the Public may fee what is the notion of law in thofe 
 political offices, that are now attempting to prove their 
 lawlefs pra<Slices to be the ancient common law of the 
 Land, 
 
 One
 
 .(;57 ) 
 
 One Inftance of the legiflature's regard to the privacy 
 of papers and correfpondence, may be feen in the at re- 
 gulating the poft-office, whereby, every poft-mafter and 
 clerk, is forbid to open any letter, upon any pretence what" 
 ever, except, by warrant of one of the principal Secretaries 
 of State; who, if the mere opening (hould aftef wards be 
 oueftioned, is thereby rendered under his hand refpon(ible 
 for the fame. 
 
 When the D. of Newcaftle was minifter, under a ge- 
 neral fweeping warrant, the meflengers feized fome cop- 
 per-plates of the late Rebels* vilories, whereupon the 
 owner commenced an aciion ; fliortly after which A'Jr. 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 fatisfadlion for them, 
 Mr. P. faid, that he would not difluade his client from 
 making up the matter, but, that as the feizure was wholly 
 unwarrantable, he mull be handfomely repaired in da- 
 mages, and therefore he would not advife him to take 
 Icfs than 200I. upon fuch an occafion. The noted Soli- 
 citor agreed to, and paid the fum demanded, upon having 
 a releafe of the adion ; 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 fince. In (hort, one way or other, the proceed- 
 ings in thefe matters never come before the Public. The 
 Parties are either too Indigent to contend with the Crown, 
 or elfe the Crown buys them off. Attornies too, for the 
 moft part, are afraid both of incenfing men in power and 
 of lofing their cofts, 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 rea- 
 fons, it is extremely difficult to cite adjudged cafes, in fuch 
 very clear points : and, therefore, one muft 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 corrct and authentic report. 
 
 If fuch a power of feizing papers could be fupported 
 by law, is it to be imagined, that no declaration of it 
 (hould have been made from the Bench, by the feveral 
 able and learned Chief Juftices of England, who have pre- 
 iifi^^ in the King's Courts iince this practice has taken 
 
 place.
 
 place. Many of them have been warm friends of admini- 
 ftration, and they coitid not have rendered a minifter fo 
 formidable^ efpecially in times of violent party and dif- 
 afFecSlion, by any other means whatever. Nay, fome of 
 them have had opportunities of making this declaration, 
 and yet have ftiidioufiy avoided it, for which no reafon 
 can be afligned, but their knowing the practice to be il- 
 legal. A ftronger negative argument can hardly be pro- 
 duced. 
 
 Nothing, as I apprehend, can be forcibly taken from 
 any man, or his houfe entered, Vt'ithout fome fpecific 
 charge upon oath. The manfion of every man being his 
 caftlc, no general fearch- warrant is good. It mtift either 
 be fworn that I have certain fiolen goods, or fuch a par- 
 ticular thing that is criminal in iifelf, in my cuftody, be- 
 fore any magiftrate is authorifed to grant a warrant to any 
 man to enter my houfe and feize it. Nay further, if a 
 pofitive oath be made, and fuch a particular warrant be 
 iffued, it can only be executed upon the paper or thing 
 fworn to and fpecified, and in the prefence of the owner, 
 or of fomebody intruded by him, with the cuftody of it. 
 Without thefe limitations, there is no liberty or free en- 
 joyment of perfon or property, but every part of a man's 
 inoft valuable pofTeffions and privacies, is liable to the ra- 
 vage, inroad and infpedlion of fufpicious minifters, who 
 may at any time harrafs, infult and cxpofc, and perhaps, 
 endo him. Nay, whenever they fufpe6l there is evidence 
 againft themfelves, they may, by this boundlefs authori- 
 ty, feize and carry it away, in order to defeat pro- 
 fecution. 
 
 In mifdemeanor, felony or treafon, before conviftion, 
 the perfonal property of the accufed, remains unaltered ; 
 no magiftrate has a right to examine the whole, nor to 
 touch or feize any particular part, without fome fpecial 
 information on oath as to individual things. And upon what 
 legal foundation, a contrary pr 3(51 ice has been fet afoot, X 
 am totally at a lofs to guefs. 
 
 L. C. J. Hale lays down thefe rules, as to warrants 
 to fearch for ftolen goods, " (i .) They are not to be grant- 
 *' cd without oath, made before a Juftice, of a felony 
 *' committed, and that the party complaining has pro- 
 ** bable caufe to fufped they are in fuch a houfe or 
 *' placcy and do ithew his reafons for his fufpicion ; and
 
 ( -55 ) 
 
 ** therefore a general warrant to fearch all fufpeited 
 *' places is not good ; nor are general warrants dormant, 
 *' juftifiable, nor do they give any more power to the 
 ' officer or party, than what he had without them. 
 *' (2.) It is fit to exprefs that fearch be made in the day- 
 " time. (3.) They fhould be directed to conftables and 
 *' not to private perfons, tho' the perfon complaining 
 *' (hould be prefent, becaufe he knows his goods. (4.) It 
 *' ought to command that the goods found, together with 
 " the party in whofe cuftody they are found, be brought 
 " before feme Juftice of the peace." 
 
 The firft warrant that ever was granted for feizing 
 papers generally, was, by Lord Townfhend, in the reign 
 of George the firft ; until that time, no fecretary of ftate 
 ever went farther than to direct the feizure of fome papers 
 particularized. 
 
 In fuch a party-crime, as a public libel, who can en- 
 dure this afi~umed authority of taking all papers indifcri- 
 minately ? When, in fuch a crime as forgery, or any 
 other felony ; or even in that dangerbus crime, high trea- 
 ^n, by correfpondence with traitors or the king's ene- 
 mies, all men would cry out againft it, and moft de- 
 fervedly ! Nothing can be touched, without fome crimi- 
 j^al charge in law fpecifically fworn againft it. And where 
 there is even a charge againft one particular paper, to 
 fcize <?//, of every kind, is extravagant, "unreafonable and 
 inquifitorial. It is infamous in theory, and downright 
 tyranny and defpotifm in pra<!^ice. We can have no po- 
 fitive liberty or privacy, but muft enjoy our correfpon- 
 dencies, friendfhips, papers and ftudies at difcretion, that 
 is, at the will and pleafure of theminiftersfor the time be- 
 ing, and of their inferior agents ! 
 
 ' Had Cliarles the fecond thought his minifters intitled ' 
 to this prerogative, he would not have reforted to par- 
 liament for Sweeping warrants, to fearch for and feize 
 ^11 feditious and treafonable books and pamphlets. His 
 meflenger of the prefs would have ranged through the 
 (hops of bookfellers and printers, and the ^udies of dif- 
 afFcdted perfons, that is, of fticklers for liberty, upon the 
 mere warrant of a Secretary of State or privy counfellor, 
 without the aid of a licenfingftatute. 
 
 And let me here aik a queftion. If a libel be no a(5lual 
 breach of the peace, and furetics for the peace or the 
 
 be-
 
 (6o) 
 
 behaviour he not dfemandable of the fuppofed Hbeller j ty 
 what colour of law, or by what warrant of capias, cart 
 any man, charged as the writer or publiflier, have his doors 
 and locks broken open, for the apprehenfion either of 
 bimfelf or his papers? Can fuch force be authorifed by 
 virtue of any legal procefs whatever, in this fpecies of" 
 mifdemeanor, before verdift, nay before judgment?* 
 
 Neverthelefs, I have heard, that a candid lawyer has 
 lately engaged for the feizurc of papers, declaring " nogo" 
 Vernment can ftand without fuch power." But the fpeech 
 or . the fcripture of a trimming man, is not, I hope, 
 to be counted for gofpel. And, I am clear, that many 
 glorious governments have flood without it, and that no 
 admirtiftration or government ought to ftand, that wants 
 it. However, it is ea/y to foretel tliat {o flattering a fub- 
 fcriber to any political tenets, cannot long himfelf with- 
 ftand any thing. He woald be able, I fhould think, if 
 occafion prefented, to throw himfelf at the feet of any 
 Majefty, , with as much afFedion and ardency, asthemoft 
 
 In a pnntftd account of the tranfaftion of Mr. Wilkes' cafe, itiy ftatetf 
 thus : " The iStb of April, a general Warrant was iffued againft the Au 
 thorsj Printers and Publiflieis of N" 45, and 49 Perfons were apprehended 
 by it befere the zgth, and among them a reputable tradefrnan. This laft 
 was taken out of bad from his wife and a child dangeroufly ill, his houfe' 
 difordered and hit papers ranfacked, and his perfon detained three days aftef 
 bis innocence knovYn, ^be 29/i, the Secretaries of State received completa 
 information that Mr. Wilkes was the author and publifher; and, the gene- 
 ral wartaht ftiU' remaining in the meffengers hands, by virtue thereof, on 
 /)b<30fi, Mr. Wilkes's houfe was forcibly entered, his doors and locks broken 
 open, all his papqr thrown into a faek and committed to the hands of com- 
 jiion meiTengers, without any fchedule or fecurity for the return ot them. 
 Mr. Wilkes himfelf v/as carried before Lord H. \yhere it was immediately 
 made known, that an Haheas^ Corpus was applied for and expefted every mo- 
 mcnt , bttt, to avoid the effeft of that writ, he was hurried away to the 
 Toxver, and there all aceefs was denied to him, as well as the ule of pen, 
 ink and paper." And I will add, from my own knowledge, that thofe who 
 had the fearching of his papers divulged the contents of fome private letters/ 
 which tnight have been very prejudicial to the writer of thwi,3nd have hurt 
 bis intereft and his friendfhip with other friends. , 
 
 It has been aflerted that, in fearch of Monfieur D'Eon, found a 
 libeller by a fury, in order to take and bring him into th King's Benek 
 to receive judgment on the verdlfl, the doors and locks pf chambers, clpfet* 
 and fcrutores, were broke open, altho' it was denied he was there, and it 
 afterwards appeared he was not there. This was faid to be done by virtue 
 f a Capias from the K. B. by fome, and by others of a Secretary of State's 
 warrant, but without any information upon oath of his being in fuch hoait, 
 nd merely upon a flight fufpicion, thit he might be there, grounded upoa 
 - kle having been feen about two mond^i ^ before golAg to the houie. 
 
 pro-
 
 profirate or adulatory of Hague-mimf^ers. An outward de- 
 eency and deliberation, in every ftep, will enable a man, 
 at laft, to ferve the more efFediually, and even to impofe 
 a wrong fenfe upon the old revolution motto of Prodejfe 
 qtiam cotifpici. And yet there is, after all, fuch a thing 
 as outwitting one'sfelf, and being the dupe of one's owfi 
 cunning, after having made this left-handed wifdom the 
 fiudy of one's life, from the tendered infancy. 
 
 The Attorney having (lightly pafled over the feiiure of 
 papers, after talking of it as a mere picture for which he 
 happened to have no VdRe, intirffy^ omits the fubfequent 
 grievance of the c/(?/^ confinement ; and, my fon, having 
 fomcwhat touched that matter in his letter, I fliall not 
 expatiate upon the fubjeit, fo 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 conftable of the Tower, is 
 not merely to keep Mr. Wilkes fafe, but " to keep him 
 '* fafe and clofiy until he fhall be delivered by due courfe 
 *' of law.'* Now, the cuftody here directed, is un- 
 warrantable in law, in the cafe of a mifdemeanor, nay ill 
 any cafe. 
 
 The common c^himitments 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 
 goaly and bim fafely to keep^ or that you fafely keep, or, 
 there to remain (until delivered bf law) ; faho cujiodiri^ ad 
 falvo cujlodiendumy faho cujiodias^ m falva cuftodia utde- 
 tineatur, or at moft falvo & fecure cujiodiri : inforauch,' 
 that out of all the various forms of mittimus's to be met 
 with in Burn's Jujiice^ or tiie Regijlrum Breviunty there 
 i^not one where the word clofe o\ arSla^ is inferted. 
 
 When a goalcr is to keep his prifoner fafe, he is only 
 to reflrain him fo as to prevent his efcape, and no perfon 
 not dangerous, in that refpcl, is to be hindered from 
 having accefs to him, in the day-time. But, when the 
 order is to keep the prifoner fafe and clofe., the goaler is 
 to ihut him up from all the world. By a printed paper 
 too, handed about, I learn that the warders of the Tower, 
 \\x this laft cafe, are never to leave their prifoner one mo- 
 ment alone. And, in a paper which Mr. Wilkes dif- 
 ptrfed, he afierted that thefe orders were ftri<5^1y obferved 
 vith rcfped to him, infomuch, that altho' he was com- 
 
 I mitted
 
 (62 ) 
 
 mitted Satururday the 30th 6f April, yet it was Tuefday 
 May the 3d, after having been brought up by Habeas 
 Corpus to the Court of Common Pleas, and remanded, 
 before his friends, had for the firft time, free accefs to him. 
 His Council and Attorney had made repeated applications 
 for admiflion on Saturday, Sunday and Monday, as well as 
 his brother, a noble Earl, and feveral people of diftind^ion ; 
 and on the Monday, he happened to fee himfelf a written 
 order upon Major Ransford's table, direding him even to 
 take down the names of all perfons applying for admittance. 
 The common report about town was, that the fecretary 
 of ftate went to his country-houfe on the Saturday morn- 
 ing, and did not return till Tuefday noon, and therefore 
 no order for the admiffion of any perfon could he had, and 
 that the Major would not break through his general orders 
 about c/ij/^ prifoners at thedefire of the folicitor of the trea- 
 fury : but, this could never be the reafon, as it was very 
 eafy to have fent a meflenger 10 or 12 miles out of town, 
 to the fecretary's villa, when the prifoner was a Member of 
 Parliament, and the publio 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 de- 
 clared, had it not been for Thofe, he fhould not have fcrupled 
 to have let in any of Mr. Wilkes's friends or relations, not 
 withftanding tli word clofe was inferted in the warrant. 
 In (hort, 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 convidlion. 
 
 Now, my opinion is, that before convidion the laW 
 does not warrant ciofe confinement, fo as to debar a 
 friend from accefs, in any cafe whatever ; and that th 
 fame is a breach of the great Habeas Corpus law, and of 
 all the ftatutes de Homine replegiando. For, if a man 
 when apprehended and carried before a magiftrate, is, by 
 that magiftrate committed forthwith to clofe cuftody, fo 
 that nobody can get at him, it will be impoffible for him 
 to write a letter, or to make an affidavit, to get a Habeai 
 Corpus. Indeed, it feems to me to be an abfolute de- 
 privation of the right that every fubje<5l has to his liberty, 
 " untefs it fliall appear that the party fo comwiited, is 
 
 * dc-
 
 ( ^i ) 
 
 '* detained upon a legal procefs, order or wiarrant, out 
 ** of fome court that has a jurifdi^lion of criminal mat-' 
 " ters, or by fome warrant of fome Judge or Juftice of 
 " Peace for fuch matter or offence for which by law the 
 " prifoner is not bailable." This ftatute of Charles the 
 2d, takes notice of the *' great delays and other Shifts 
 *' of goalers and others ^ contrary to the known laws, 
 '* whereby many of the King's fubjets, may be long> 
 *' detained in prifon, in fuch cafes, where by law they 
 ** are bailable, to their great charges and vexation," and' 
 purports to be exprefly enabled, " fol" the prevention 
 ** thereof, and the more fpeedy relief of all perfons im- 
 *' prifoned for any criminal or fuppofed criminal matters." 
 Now, if I do not mifremember, the five members were 
 committed to chfe confinement, for feditious difcourfes in 
 parliament, by Charles the ift, and it was the agitation of 
 this very queftion that firftftiookhis throne ; and yet, I do r 
 not know, that in the cafe of Mr. Wilkes, it has ever been 
 taken notice of at all, either in parliament or in any court 
 of Juftice. 
 
 I look upon clofe cuftody in fuch an offence as a libel, 
 the leaft definable and the moft ambiguous of all mifde- 
 meanors, and by conftrudlion only a breach of the peace, 
 to be not only abfolutely illegal, but extreme cruelty in 
 itfelf, and, with refpedt to theconftitution, the moft law- 
 lefs 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 conftitutes, in the eyes 
 of mankind, the dreadfulnefs of the example. It is tho 
 fcrce 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 tiie ground of the royal complaint 
 to the Commons againft Mr. Wilkes, availing himfelf of 
 every pra6ticable effoign, and, at length, withftanding 
 all the procefs and penalties of a court of Juftice, to a- 
 void trying the right of a tranfadion, which has never 
 yet been directly given upj and perhaps waiting for an 
 outlawry of his profecutor, in order then to mock the 
 juftice of his country ftill more, by entering an appear- 
 ance to the fuit againft him, at a time, when his profe- 
 utor can no longer go on with it ; I proteft, altho' an 
 
 I 2 o\ip
 
 ( ^4 ) 
 
 old, fober, private individual, that I lofe my temper, look 
 for redrefs from fome other quarter, and feel mvfclf in- 
 clined to join-in an addrefs to the Commons of "England, 
 to take up the confideration, and go on with the profecu- 
 tion of that caufe, which every Freeman js i^terefted in, 
 and which the ordinary courts ofj'u (lice have been fo long 
 foiled in. I remember what is Mr. iLccke's definition of 
 liberty j what he makes the province of a court of judi* 
 cature ; what the extent of the legiflative power ; and 
 what, according to him, creates' a diflolution of all go- 
 vernment. .. 
 
 . Who under fuch circumftanccs would blame a Jury, 
 fhould they at lafl: have fuch a fecretary brought before 
 them, for giving extraordinary, exemplary damages, in 
 i error em ! Efpecially, if they fhould have all imaginable 
 faundation for believing the judgitient upon fuch verdil, 
 will be delayed by every artifice of bills of exceptions, 
 fpEciil .verdi^s, motions for new trial," writs of error, &c. 
 tUat-canbe ^taL^ifed, in order tofprev-eiit all efFc<5l from 
 it,i and tooverbear, in the J6rig"t-tih', the poor prpfecutor 
 by dint of expence. , , , r, -,,', 
 
 Jfraankind-fe'^^^o ?^' ''<tnk^t^J-f:}^tfmn^^i^^^ the 
 readied way tcJ efteft it. -./::. ^3 :- - - 
 
 ,Ifa queftiortable <R: has 'bb^tf^jiftne by the great'officer? 
 of.a ftate in tm fuft governmen't^'and when taken no- 
 tice. of, they avafda-decifion of ^be eftablifhqd courts. c>^.., 
 hiir^ I will ,fa\^'tfiey:dir-fcrvethe' Crowii'by fuch conduii, 
 let who wit! at^i(e'-<t. It 'Vdttbecerftirig men who pre- 
 tend to an honourable repute .or a jufiifiable behaviour:, and 
 mcrediblb trimfe-'^jvadrrrfniffraiioa means only to iile. legal , 
 pcuvers" or def^^qst-o^fnow wjhat {Jiey are.* ~ '^' '"",.*', ^ 
 
 No jury will give- great cfan>ages V/hcrp a mipif^e'rpleads 
 }awibr.ftis"e?ftfu'fe-''and re^iIv re'forts'to a- court, of Jaw. .. 
 fo; its .oprniJ?n; iff 'rder to-frfevtr t^e truth of" hisplea^,,. 
 But: where be fhtifSes -and ciit?,""'flies .'to priVilere arid.' cliir, \ 
 cane, and avoids riorju'rt of law, 'or keeps itat ^ay, he will 
 not'Onlybav-*-' every prefumption Jh disfavour of him, but, 
 v/iJI raife ttie'rafbntment of every rii]iri, and fhould the iloj-v, 
 foot of juflice-'at- laft overtake 'hiTn; nobody v/ill think. i'l-,- 
 can treat -him'Wo'feverelyi as. , pie tq ^11 futuj^^' 
 
 mijtifterSv --' ''^'' "^ ' , . "^',~ 
 
 How can any minifter think of elij.ding the laws, when 
 h$.ai!>afi^ers <Ji4?4c:if>g9, the" fupremfe ' niagiilrates of thi^ , 
 
 r/^VM. jUoiq : ;:: : rj'^j-:^. country.
 
 ( 65 ) 
 
 country, hold their crown by no other tenure, and are 
 fworn and bound to govern by law, at the peril of that very 
 crown itfelf! Our conftitution admits of no arbitrary will 
 orpleafure in any man. The law is the fole fovereign of 
 England, and That law is known and fettled, on the firm 
 bafis of immemorableufage, innumerable precedents through 
 a fucce/fion of ages, and upon the flatutes of kings, lords, 
 and commons. And, it is thiscircumftance which makes 
 the fecurity, the independence, and the pre-eminent feli- 
 city of Englifhmen. What a comfort is it to every man, 
 who either raifes 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 fo low as to fubmit to 
 enjoy, all that he has, by the mere grace and favour of a 
 man like himfelf, inftead of holding it independent of every' 
 thing upon earth, but the known and ncceflary laws of 
 fociety. 
 
 It would, in my poor opinion, be of infinite ufe to young 
 men of fortune, beginning the great world, who may 
 hereafter be minifters of ftate, to read attentively the firft 
 15 years of the reign of Charles the I. and the laft 16 years 
 before the Revolution, in the original diaries, annals, me- 
 moirs, tra<fts, and in the parliamentary and cotemporary 
 hiftories, of thofe days. They would thereby perceive, 
 what mighty ill confequences flow from fmall beginnings, 
 and particularly, from right not being to be had for thc^fub- 
 jedt in courts of Juftice. 
 
 -The Attorney wonders, what fhould occafion any 
 *'< alarm" and fays, one would think, *' that fome inno- 
 " cent man had been opprefled by arbitrary violence, 
 " tyranny, and perfecution." To which I fhall only fay, 
 that the legality of the arreft itfelf by virtue of fuch a war- 
 rant, and not the innocence of the man arretted, is the 
 matter in queftion. 
 
 The Attorney might as well talk of the qualities of the 
 writer's mind, and endeavour to fliew that he was a ludi- 
 crous, extravagant, profligate, debauched and blafphemous 
 fellow, and wrote an infamous poem, whereby he excited 
 the indignation of a grave and pious nobleman, who, from 
 a motive of confcience complained of him to the houfe of 
 lords, for difporting himfelf in the works of ;,Vice ; and 
 that therefore, fuch a man might be treated as admlniftra- 
 tion fliould pleafe, without any regard to law or the con- 
 ftitution.
 
 ( 6^ ) 
 
 ftitution, and that, inftead of protciling the franchifes of 
 fheir countrymen, the prliament fliould only fettle the 
 morals of individuals, like the Courts Chriftian of Bifhops. 
 The Attorney concludes on this headwich afking, whe- 
 ther all the printers and other '* parties aggrieved, deny 
 * that thpy have had ample fatisfadiion ?" whereby he in- 
 directly admits that they had been aggrieved, but then in- 
 finuates, that as monqy is in his mind the mcafure of all 
 thing?, and an adequate confideration either for a broken 
 bead or a broken conflitution, fo there has been no harm 
 done at all, but what is now compkatly paid for. Let 
 me afk, were thefe damages offered or even paid volun- 
 tarily, fo foon as the unlawfulnefs of the acl was difcovered ? 
 Or, were they extorted, by the. verdict of a juty ; after 
 every means to delay and to defeat the adtion, to ftagger . 
 the Judge who tried the caufp (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-- 
 di<5l, by a bill of exceptions, had been tried in vain ? After 
 all this, were the exceptions tendered with fuch earneftTu 
 nefsj anc| fo niucb appearance of fincerity, ever argued of: 
 deemed capable of fupport in any court of law whatever fff 
 Or, were thcperfoiis, who took them, after thefe fruitleft : 
 attempts to dcliificj maiikiiid, under the facred names of. 
 la"w and conflitutioii^^C)ttiged, like convicted jugglers, to,, 
 giVe up thegair\c, ancj',' as the laft fhift, to buy pfFqlan-.. 
 deftihcly'the vcr'clias''fctpubrickly obtained, in hopes, by 
 a private barter o* -fatisfad^ion and rcleafe from low and ig- 
 Tidrantprofecutoris,^ io jaick.an attorney, who had laboured- ' 
 a juft'and ? "'''?'-!, fu(t, out of his cofts ? Is this, or is it 
 n6t theT ' is;or islt not a handfome come off, or, 
 
 a Reputable way, of giving up a great caufe, where the ; 
 Crown iiaj'r thought, proper by its Attorney General: 
 to' take '"up ' the defence ? Sume fuperbiam queeftiam 
 
 mer{tii. ..-.,-, p.- < '- 
 
 'But iil Gocf^ narac, ; what, have damages . to do with 
 the' great pouit-theAttcJrney'is arguing, whether the Com- 
 niph^"6f' Engtand'fJjpuld or ihould not come, to a fl;oBg5> 
 refold fibn upon Tuch|ah infrihg;ejpent of the conititution*i; 
 ^/I'6ft people ^4re of' opinion, wHeh a power, dangerottg^t h 
 anv'trm'e to^beexercifcd, is made ufeofin an ordinary point' I. 
 unnecefianly, the parliament fiiould immediately brand fo ' . 
 viol<?n^''and^irrc|^i4l^r a ffep,'an^ circurailances re- , 
 
 ...... ... qui/e4
 
 ( 6? ) 
 
 Quired it, ftigmatize the perfon who took it. The lets 
 the occafion was for this illegal ad, tfae more alarmino- it 
 is, becaufe it looks as if great men chofe to adt by the 
 authority of the crown, inftead of afiing by that of the 
 law, and the more it had become of late the ufage to ex- 
 ercife this power, that is, the greater fandtion it might 
 feem to have derived from any uninterrupted pradice of 
 20 or 30 years, the more neceflary it might feem to come 
 to fuch a refolution : efpecially, too, if this power had 
 been evidently abufed, by being exerted in the cafe of a 
 mifdemeanor, and even in the moft dubious of all mifde- 
 meanors, and above all, if it were in a time of the pro- 
 foundeft tranquility, when all parties were ftriving who 
 fhould be foremoft in (hewing their fincerc attachment to 
 the perfon of their Sovereign. A power notorioufly and 
 confefled illegal, feems to need no great examination, but 
 if it did, people without doors are apt to think, thatthofe 
 within ftould have given it that examination, and all tlic 
 ** 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, fothat 
 there was no want of time, and it was a point that intc- 
 refted peoples attention more than any other. 
 
 If the Refolution were confined to the cafe in queftion, 
 and fo drawn as to apply to itexadtjy, it could neither appear 
 ** infufficient or futile.'' The condudt of the prefent 
 parliament proves this j for, it has fliewn that it chufes to 
 go fo for 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 finglc cafe of feditious libels. And yet the rumour 
 is, that many members of bothHoufes thought it a proper 
 opportunity fas coming to a general refolution, taking 
 away privilege from all breaches oi peace, whether adual 
 or conftruftive, 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- 
 folution touching warrants fhould have been general, de- 
 claring. General Warrants illegal in all cafes whatever. It 
 appears too, that the motion rtrft made to the houfc was 
 for the warrant itfclf , which nvght have been a, ground 
 
 * See xhx ptt^Ud TotM. 
 
 fbc
 
 ( 68 ) 
 
 Ibr one refolution of this kind, and for another of the like 
 kind, upon the feizure of papers j or, for a refolution up- 
 on the particular warrant only. This motion was re- 
 jedled. Then a motion was made for a refolution Thai 
 a general warrant for apprehending and feizmg the authors^ 
 printers^ and publijhers of a feditious libel^ together with 
 their papers ^ is not warranted by law. The houfe received 
 it, but by amendments narrowed-it ftill more, in order to 
 bring it to the individual warranT that had iflued, and to 
 add thereto fatls relative to fecret|^ies of ftate and courts 
 of law. At laft the refolution adopted by the houfe for its 
 queftion was this, That a general warrant for apprehend- 
 ing and feizing the authors, printers and publishers of a 
 feditious and treafonable libel, together with their papers, 
 is not warranted by law ; altho'' fuch warrant has heenijfued 
 according to the ufage of office^ and has been frequently pro' 
 ducedio^ and fo far as appears to this Houfe ^ the validity 
 thereof has never been debated in the court of King's Bench, 
 lut the parties thereupon have been frequently bailed ^y the 
 faid court. And, it is faid, the King's attorney and ad- 
 vocate general were the perfons who moved and enforced 
 all thcfe narrowing, qualifying and apologizing amend- 
 ments. 
 
 However, as the prefent parliament has in thefe two in- 
 fianccs, (hewn its approbation of coming to refolutions only 
 upon the cafes that have actually happened ; neither the 
 Attorney nor myfelf, are at liberty to gainfay It. As they 
 have adopted it, Icannot fufFcr myfelf to fay, that ** a re- 
 " folution upon the journals, confined to the cafe of fedi- 
 ' tiouslibels only, left the warrants, in all other cafes, ftill 
 '* more confirmed and authorized by that tacit approbation." 
 I do not think fo. And I will venture to afkhim, whether 
 he thinks that the parliament, by declaring no privilege 
 lies in the cafe of that fingle mifdemeanor, a libel, has 
 thereby tacitly approved and confirmed its privilege in all 
 other mifdemeanors. I fhould rather rcafon, that when a 
 parliament condemns any thing in one cafe, it intimates a 
 difapprobation of every fimilar cafe and of every the like 
 fpecies, altho' not named exprefly in their refolution. In- 
 deed, were 1 capable of thinking, that the Gentlemen, 
 who oppofcd the general refolution firft propofed abouc 
 warrants, and ftated, contended for and carried a refo- 
 lution adapted only to a particular cafe, which the Houfe 
 
 thers-
 
 f 9 ") 
 
 thereupon took for Its queftion in the debate, intended 
 thereby a tacit approbation of, and more to confir?n and au' 
 thorize the pralice of General Warrants in all cafes but 
 that, I confefs, I fliould be more alarmed than ever. But, 
 I dare fay, the Attorney here reafons from himf^ilf, and not 
 from any Authority of liate. 
 
 But the Attorney, however, is afraid that the Lords 
 might difFer from the Commons, either as a houfe of par- 
 liament, or as a court of judicature. This is impo/fible 
 in a perfectly clear cafe. Nay, I can rid him of fuch 
 fear, by what happened this very felTion. Let him only 
 look back to the proceedings, and he will find that the 
 prefent parliament took notice of Tlje North Briton 
 No. 45, in confequcnce of the King's meffage, and upon 
 the mere view of the paper itfelf, without inquiring into the 
 truth of any circumftances, that the author might rely 
 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 efteem a mere point of law, but 
 what by fome is held to be a very difficult point of Jaw. This 
 was done too without any previous communication with the 
 L^rds. TheCommons even went farther, for they afterwards 
 called for evidence, in order to find out who was the au- 
 thor; and it appearing to them, ajtho' by witnefles not 
 upon oath, that one of their own members was, they 
 * expelled him, after fitting, debating and deliberating on 
 their condud 'till half an hour after three in the morning. 
 Now, this laft was a fad, which by the conftitution of 
 this country, is to be tried by a Jury. Nay, the Com- 
 mons came to both thefe refolutlons, whilll the fame mat- 
 ter was in a courfe of trial before a Jury in the courts be- 
 low ; where it was 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 fa<3, 
 as it is called ** : but, fuppofe them to be io docile as to 
 
 find 
 
 Vide the printed Votes of ThurfJay Jan. 19, 1764. 
 
 This very thing happened in New York in America, where the form 
 of government is the fame as in Enj;lanil j the Goveinor, Council and Af- 
 fesnbly, anfwering to King, Lords and Common. Now, in the cafe of one 
 Zenger, a Printer, the " Council by their Rclolution, declared the patMsri 
 " publifhed by him to be faljt, fcandalous, malicious and Jeditioui lihtlt.' 
 
 As the Jury upon his trial wcro upon their outbs, and thereby bound t 
 * delivM their own opinions, and not that of the Council, they thought 
 
 K ' them-
 
 ( 70 ; 
 
 "find only that fuch a man had publifhed the paper, and to 
 leave the conftru6tion thereof to the Court, and that the 
 Judge who prefided was one of thofe intrepid magiftratcs, 
 who do not care at all for the refolution of a Houfc of 
 Commons upon a point of law : it is furely, very pofli- 
 ble, that fuch a Judge might have made a different deter- 
 mination from what the Houfehad done. And then even 
 this Judgment might have been carried " by appeal to the 
 " Lords, who in their judicial capacity might think fit to 
 *' declare the legalitvof" the paper in queftion, '* to 
 *' confirm the practice" of difcuffing without doors the 
 truth of the fpeech from the throne, and to affirm the 
 judgment of the King's Bench. Notv/itiiftanding there- 
 fore, this matter was in a way of trial below, and not- 
 withftanding the Lords, both as a Houfe of Parliament 
 and a Court of Judicature, might have differed from the 
 Commons, yet they determined both the law and the 
 faiSt } without being afraid, as the Attorney is for them, 
 ** either that the Courts of law muff be divided and con- 
 " founded in their opinions, or that the dignity of the 
 " Houfe of Commons mufl fuffer in the negledl and con- 
 ** tempt of their refolution." They judged, I prefume, 
 that in a clear matter fuch difference of opinion could not 
 arife, that the paper was clearly a libel, that it was a mat- 
 ter of national moment not to be procraftinated, and that 
 therefore, they not only might, but ought to pronounce 
 their opinion upon it. According to the Attorney's doc- 
 trine, a Houfe of Commons fhould not venture to declare 
 that two and two make four, before a Court of law has 
 told them fo. But, in fhort, this has never been their 
 pradtice. ]t is not fit they fhould interfere where the pub- 
 lic is not deeply interefted j but where it is, they are 
 bound to do fo, in jultice to their reprefentatives, and 
 they always have done fo. Nay, they have gone further, 
 and where the neceiTity was great, they have even come to 
 ar refolution in point of law, contrary to the judgment of 
 a court of law, and to the opinion of ten out of twelve 
 Judges. Where they fufpefed any undue influence, ei- 
 
 " themfclves obliged to acquit the prifoiier, by retarning a verdifl, not 
 "^ Guilty -J which is the Verditl every Juryman is in confcience bound to 
 " return, if bethinks that the prifoner is not guilty of the crime charged jn 
 ** the Indicftment or Information." Preface to Zcnger's trial, which con- 
 tains many things very \\ell worth reading; 
 
 tl)cr
 
 (71 ) 
 
 therln the exertion or the fupport of the Prerogative, by of- 
 ficers of the crown, or by Judges, they have always inter' 
 pofed. Is it poffible to forget, or to controvert, either their 
 Cf)ndu6t, or the propriety of it, in the great cafe of 
 fliip- money, which was firft brought into quc-fiion by Mr. 
 Hampden, a private gentleman, who, fo far from regard- 
 ing the trumpery, pettifogging confidcration of damages, 
 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 Lordihip adds, and all the world knows, 
 that never any caufe had been debated and argued morefo- 
 lemnly before the Judges ; who, after long deliberation a- 
 mong themfeives, and being attended with the records, 
 which had been cited on both Jiues, delivered each man his 
 opinion and judgment, publicly, in court; and fo largely, 
 that but two Judges argued in a day. Ten of them fo- 
 lemnly pronounced their opinion for the right claimed by 
 the crown, and which it had regularly exercifed for four years 
 immediately preceding : but, as Lord Clarendon obferves, 
 the judgment proved of more credit and advantage to the 
 gentleman condemned, than to the King's fervice. How- 
 ever, adds he, thefe " errors in government were not to 
 ** be imputed to the court at that time, but to thefpi- 
 ** rit and ovcr-aclivity of the lawyers of the privy-coun- 
 " cil, who fhould more carefully have preferved their 
 " profeflion, and its profeflbrs, from being profaned by 
 " thofe fervices, which have rendered both fo obnoxious 
 " to reproach." In (hort, the Houfe of Commons en- 
 tered into the public grievances, and notwithftanding the 
 right of levying fhip money was a mere point of law, and 
 there had been the aforementioned folemn adjudication by 
 the whole bench of Judges in it, they ordered that the re- 
 cords, inrolmcnts, judgments and proceedings in the Ex- 
 chequer, and all other courts whatfoever concerning fhip- 
 money, fhould be fent for, and warrants figned by the 
 Speaker, direled to the officers of the feveral courts for 
 thefe matters, were ifTued accordingly. In confequence 
 of this, a committee was appointed, and upon the report 
 of that committee, the Commons refolved, *' Tliat the 
 ** charge impofed upon the fubjedts, and the aflefTments 
 *' for that purpofe, commonly called fhip-money, arc a- 
 K 2 gainfl
 
 (7^ ) 
 
 ** gainft the laws of the realm ; atiH that all the writs, 
 " commonly called fliip-writs, and the judgment in the 
 *' Exchequer in Mr. Hampden's cafe, in the matter and 
 *' fubftance thereof, that he was any-wife chargeable 
 " thereby, are againft the laws of the realm." In the 
 matter of libel, they confidered tf-.e cafe of Burton, Baft- 
 wick and Prynn, and refolved, the judgment and fentenc 
 of the court of King's Bench, to be illegal andunjuft: 
 and, fo they did in the cafe of Lilburn. In the fame feA 
 fion of Parliament, the Commons entered into a confidera- 
 tion of the ecclefiaftical power by law, and of** the feveral 
 ** conftitutions and canons, treated upon by the Arch-Bi- 
 ** fhopsof Canterbury and York, prefidents of the refpec- 
 *' tive convocations for thofe provinces, with the reft of 
 ** the Biftiops and Clergy, and agreed on, with the 
 *' King's licence, in their feveral fynods ;" and re- 
 folved, " That the faid canons and conftitutions do oon^^ 
 *' tain in them many matters contrary to the King's pre-r 
 '* rogalive, to the fundamental laws and ftatutes of this 
 *' realm, to the right of parliament"?, to the property and 
 *' liberty of the fubjeiSls, and arc matters of dangerous 
 *' confequencc." 'I iie fame parliament likewife took 
 notice even of the tranfadlions in another kingdom, and 
 tefolved that feveral proceedings by the Lord Lieutenant of 
 Ifcland were unjuft and illegal ; and that the Judges there 
 were fit to be queftioned as criminal, for their extrajudicial 
 proceedings and opinions. From multitudes of inftances, 
 whore the Commons have come to a refolution with re^ 
 fpe^l to matters of la-.v, 1 have only fe!e<5led thefe few, in 
 order to fhew, that they have done fo, when the Houfe 
 was filled with great, coiiftiturional lawyers, where the 
 (amc point had been already and differently determined by 
 a- court of law, and even by all the Judges ; in matters of 
 univerfal concern, and in particular cafes, and even with 
 refpet to libellers, in points of both Common and Eccle* 
 fraftical law ; within and without the realm of England ; 
 and that this thev have done without any conference with 
 the i;ords, and not as a foundation for any bill, and, yet 
 their refolution has been obeyed and conformed to ever 
 fince as law, by every court of Judicature in the kingdom. 
 A refolution of the prefent Houfe of Commons would be 
 equally refpetSed, I doubt not, whatc\'er big words any 
 man may throw out to the contrary, by every Judge ; and 
 
 1 never
 
 (r3 ) 
 
 I never knew a dealer in fuch fort of fpeech that had a sin- 
 gle grain of true fpirit or bottom, when he came to be 
 tried. This being the praftice of thefe guardians of the 
 people's rights, upon former occafions, makes me more 
 curious than ever to know, what it was that influenced thg 
 prefent parliament, after inquiry and proof of General 
 Warrants being clearly contrary to law, to refrain from 
 condemning the ufage of them. The more efpecialiy, as 
 it will appear hereafter by the Votes and Journals, that a, 
 grofs complaint had been made of the abufe of thefe war- 
 rants, in the cafe of one of their own Members, and that 
 the debate upon the queftion of their validity, had been 
 the lonseft to be met with fmtre Parliaments have had ^ 
 being. We who are living know very well from the Mem- 
 bers of all parties, that nobody attempted to vindicate the 
 legality of thefe warrants ; but, our pofteritv will not 
 have the fame oral fatisfation, and muft naturally con- 
 clude, from their not being declared illegal, according to 
 the antient ufage of the Houfe in matters of like univerfal 
 concern, that fomething appeared which rendeied the 
 point of law very problematical. Lxleed, it muft from 
 reafon feem to every reader, that altho' the Houfe inqui- 
 red into the matter, on account of its infinite confequence, 
 yet, that it could not be warranted in paffing a cenfure 
 upon thofe who had ufed thefe warrants, nay, was on the 
 contrary obliged to hold them juftified, and to difcharge 
 the complaint againft them, however much the Houfe 
 might wifh to damn fuch warrants, if not in all cafes, yet^ 
 at leaft, 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 conclufion * 
 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 fingle cafe of a libel, al- 
 tho' accompanied with an order to feize papers ; infomuch, 
 that I ftiould think an able man would hereafter allege the 
 prefent proceedings, as a juftification not only of thefe 
 General Warrants, for the feizure of pcrfons, but alfo of 
 papers, even in the cafe of a mifdemeanor, fo that this 
 ufage will be apt to gain ftrength from what has pafled, 
 as non rep-edi ^ progredi in fuch an enterprize as this. 
 
 * Viie the printed Votea of Jan. zo^ Fob. iq, 13^ Y4 and 17, 17 64* 
 
 The
 
 C 74) 
 
 *rhe fingle obiter faying of a Judge at N'tfi priui, or even 
 the judgment of a Court of Law, will not be fufficient to 
 reftrain future miniftcrs, hurt by what is publiflied againft 
 tbem, from ufing this general, fweeping power, when 
 they find, that a Houfe of Commons will not interfere in 
 the cafe, except to vindicate the perfons who ufe it. For 
 which reafons, I wifh, with all my heart, this affair had 
 never been agitated in parliament ; becaufe I am forry that 
 any time-ferving Judge hereafter, ihould have fo good a 
 pretext fiir ufing his difcietion in the determination of the 
 point, and for not being afraiil of Parliaments calling him 
 to an account for what he fliould do. 
 
 It is, however, a point of very extenfive confequence 
 both to the liberty and property of every man, and the 
 Attorney therefore is a little too dogmatical, in conclu- 
 ding that the true queftion was only, " whether the mini- 
 *' Itryfhould fufFer themfelves to be the dupesof apartv.'* 
 A vei7 fatisfa<flory apology and vindication, truly ! For, 
 as to his round afTertion, that this is a " power which the 
 *' beft friends to liberty had never fcrupled to exercifej" 
 it is gr(ifis diclum, untru6 in itfelf, and, if it were true, 
 nothing to the purpofe. 
 
 Thus much, I have thought myfelf obliged to fay, not 
 only in fupport of my own freedom as a man, but likewife 
 in honour of the miniftry, who mufl, I think, be highly 
 difpleafed with the over-weening prefumption of an Attor- 
 nev, in advancing out of doors, what no minifler, nor 
 even the Attorney General himfelf, would venture to aflert 
 within doors. 
 
 As to what he has faid with regard to the infignificance 
 of the mere rcfblution of the houfe of Commons, I do 
 recollect that fomething of a like fort was flung out by 
 one learned gentleman, who, indeed, clofed the whole of 
 his argument on this point, by faying, that *' had be 
 " the honour of prefiding in any court of law, he fhould 
 ** regard fuch a refolution no more than he would that of 
 '* fo many drunken jx)rters in Covent Garden." It 
 would not, perhaps be '* a judicial determination of the 
 '' law, which might be pleaded in a court of judicature, 
 " and would only be a declaration of the fenfe of the 
 *' law," by all the commons of England. And with- 
 out doubt, if the refolution of one houfe would be of no 
 weight with this gentleman, the refolutions of both houfes 
 ad t would
 
 (75) 
 
 would be of none. Nothing but the concurrence of 
 King, Lords and Commons will do for him. And yet, 
 I dare fay, he would be confoundedly frightened with a 
 fingle vote of either houfe, fliould he live to experience 
 it. I will not fay, that the two houfes have ever gone fo 
 far as to make law, altho', I believe, they have gone fo far 
 as to make a King ; but this, I am fure of, that they 
 have very often declared v/hat the law was, in very great 
 points, and this is all that was contended for. In times 
 more remote, when houfes of Commons were not fo 
 Icrupulous, they have frequently come to refolutions de- 
 claratory of the law ; as any one may fee, by. reading an 
 account of their proceedings in the reign of Charles the 
 Firft, when headed by Sir Edward Coke, Selden, Glan* 
 ville, and the great lawyers of thofe days : and this right ' 
 they continued to claim and to exercife when Mr. Somers, 
 Serjeant Maynard, Sir William Jones, Sir Francis Win- 
 nington and other lawyers, undertook to condu6l them 
 prior to the Revolution, which laft tranfa6lion, altho* 
 wearing away very faft in remembrance, is a period of 
 hiftory not yet abfolutely forgotten. At that time, fome 
 of the men I have named were thought to underftand the 
 conftitution ; they had lived in ticklifli times, and ftudied 
 it clofely : neverthelefs, I do not, in this refpeft, mean to 
 compare them with the refpctable perfon I have juft now 
 alluded to, altho' they had certainly attended the houfe 
 much more than he has done. 
 
 In thofe times it was the notion, that, upon any illegal 
 arreft, or other violation, by a great Minifter, of a mem- 
 ber of their houfe, it was necelTary to come to a refolution 
 forthwith, concerning the law upon that head, without 
 waiting for the flow, and poflibly inefFedual, proceed- 
 ings of a Court of Juftice, where a mere miftake, in 
 the manner of pleading, might delay for a year, or 
 poflibly fruftrate entirely the fuit. The parliament 
 was anciently called, commune confilium regni, communis 
 reipublicts fponfio. And I cannot even yet regard a refo- 
 lution of the Commons, in the fame light with the Attor- 
 ney, as ** a mere amufement ;" becaufe, if by virtue of 
 any refc/lution of theirs, whcther'thc fame may be pleaded 
 in a regular plea or not, a man be committed to Newgate, 
 the Court oi King's Bench will never venture to queftion 
 the legality of the proceeding. When the Honourable 
 
 Alex-
 
 (16) 
 
 Alexander Murray was fo committed, a late great patriot^ 
 Sir John Philipps, put on his gown, and came into the 
 court on purpofe " to make a motion," as he phrafed it, 
 " in the caufe of liberty," and prayed a Habeas Corpus 
 for the faid Mr. Murray ; which was accordingly granted 
 ofcourfe. The caufe of his imprifonment, returned by 
 the goaler, was only an order of the Houfe of Commons^ 
 without any crime alleged. The Judges faid they could 
 not queftion the authority of that houfe, or demand the 
 caufe of their commitment, or judge the fame ; and 
 therefore refufed to difcharge the prifoner, maugre all the 
 patriot's arguments to the contrary, and fo remanded him. 
 Nay, I will mention to the Attorney one other cafe, 
 which will be worth his confidering, before he flights the 
 notice of a refolution of the Commons. In the year 
 1689, one Topham, the Serjeant of the Houfe, com- 
 plained, that being ferved with feveral adtions, for taking 
 perfons into cuftody by order of the Houfe, his pleas of 
 their order inhis juftification, had been over-ruled in the 
 King^s Bench. The Commons thereupon refolved, *' That 
 *' the faid different judgments, given in the King's 
 ' Bench againft the faid Topham, are illegal, and a vio- 
 ** lation of the privileges of parliament, and pernicious 
 ** to the rights of parliament ; and that a bill be brought 
 *' in to reverfe the faid judgments ;" and they ordered 
 that thofe of the Judges who were living, fliould attend ; 
 which they did. Sir Francis Pemberton, (who had been 
 the Chief -Juftice) being defired to give his reafons for 
 aver-ruling the Plea of the order of that Houfe, replied, 
 *' That he knew little of the cafe, it was fo long fmce. 
 '* But that in cafe the defendant fhould plead he did arreft 
 ** the plaintiff by order of this Houfe, and (hould plead 
 *' That to the jurifdidion of the King's Bench^ he 
 *' thought, with fubmilfion, he could fatisfy the Houfe, 
 '* that fuch a plea ought to be over- ruled : and that he 
 *' took the law to be fo clearly." He then withdrew; 
 and Sir Thomas Jones (a puifne Judge) being examined, 
 faid, '* That it was long fince, and, not knowing what 
 *' he was to attend upon, could give no account thereof; 
 ^' but, that if any fuch judgment was given, he hoped it 
 ** was according to law, as the matter was pleaded ;'* and 
 then withdrew. Sir F. Pemberton was again called, and 
 his reafons being demanded for his general affertion before- 
 
 faid.,
 
 (77) 
 
 faiJ, he dfeAred time to anfwer, both to the whole toge- 
 ther, and the particular cafe of Jay and Topham. But 
 an immediate anfwer being infifted on, he faid, " That 
 *' what he fpoke v^zs quoad hoc to that cafe; however, 
 *' he gave what he had faid, for his prefent thoughts and 
 *' reafon." Being withdrawn, the Houfe refolved, after 
 a debate. That the orders and proceedings of this Houfe, 
 *' he\ng pleaded to the jurifdi<5tion of the court of King^s 
 *' Bench, ought not to be over-ruled." They then or- 
 dered the fe two Judges to attend again on another day ; 
 when they were feverally examined, touching their rea- 
 fons for over-ruling the plea of Serjeant Topham to the 
 aiSion brought againft him by Jay, and ordered into cuftody 
 of the Serjeant at arms. 
 
 " The Attorney, however adds, that even the Refolution 
 ^contended for would have been of no utility, becaufe it 
 
 mi"-ht have been eafily evaded : and then ftates two or 
 three cunning devices as *' cvafions, which he conceives 
 *' would fruftrate the refolution, and confequently render 
 ** it, in efFed, no fecurity at all." A change of a word 
 
 -only in the " form, he fays, would fubjedl us to the fame 
 **** evil." To evince this, he fuppofes a Secretary of State 
 *' was to grant a particular warrant, defcribing the per- 
 ** fon, for the fcizing the papers ; and a ^^w^r^/ warrant 
 ** for apprehending the authors, printers and publifhers :" 
 and, thereupon, fays, " hefhould be glad to know whe- 
 " ther either ofthefe 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- 
 0^* ther, if the words treafonable practices were inferted 
 f *' (and endeavouring to excite to treafon, he fhould fuf- 
 
 ** pe6l to be a treafonable practice) a General Warrant 
 
 *' might not in that cafe pafs uncenfured, including 
 
 1 " both perfons and papers?" Now, T will fairly tell him 
 
 * my thoughts of the matter, and the probable confequences 
 
 ^ had fuch a refolution as that contended for been come to. 
 
 I take it to be molt clear, as the law now ftands, a 
 
 General Warrant is good in no cafe whatever, for the 
 
 ' apprehenfion of perfons or papers, or both; and that a 
 
 1 Particular, or anv Warrant, for feizing the papers, is 
 
 likewife, as the law now ftands, good in no cafe whatever : 
 ' and confequently, that none of all his ingenious contri- 
 ' vances before ftated, for eluding the law, would be, if 
 aliiiiij L at-
 
 ( 78 ) 
 
 attempted, worth one fingle ftraw. Having laid this down, 
 I (hall proceed to fay, that, in my poor opinion, if the 
 refolution had been agreed to, as it arofe out of a parti- 
 cular cafe complained of, it would have looked to the 
 world as if either houfe of parliament, whenever in any 
 -.particulaC inftance this great privilege of a freeman, the 
 liberty of his perfon, were violated in the perfon of one 
 of their own members, and came to their knowledge, they 
 . would take immediate notice of it, on purpofe to exprefs 
 theij indignation againft the outrage, in order to deter all 
 ^ pnen from doing the like for the future, and to keep frefb, 
 ' j.in every bodies minds, the law upon that head. Their de- 
 -clarationin this cafe, where no doybt of the law itfelf 
 could be pretended, would have convinced all mankind, 
 that, wherecver the law Was clear, they would not fufFer 
 Jt to be violated by any perfon, ever fo high, or ever fo 
 igreat, without their immediate inquiry, and the fixing of 
 ' i^n indelible, brand for fo dangerous an offence. Poflerity 
 ^would have feen in the journals, by the very cafe before 
 the houfe, that the refolution was adapted to it, neither 
 falling fliort of, nor going beyon.d it ; and from thence 
 too would all men judge how unadvifeable it muft be for 
 any man, to infringe tlie liberty of the fubjeil in any one 
 point. From this iflftance they would naturally reafon to 
 others. Therefore, hardy as the Attorney is, I believe 
 that, after fuch a refolution, he would not venture* on 
 .any quirk grounded in the change of a word, tojiaveat- 
 f)em-pted aught againft the fpirit or words of the refolution, 
 by the feizure of any member, or indeed, of any man ; 
 or, if l>e did, that the vengeance of the Houfe, which he 
 . had fo trifled with, would have fwiftly purfued, overtaken 
 and punifhed him. The Commons of England would not^ 
 in a great conftitutional point, between "Minifters of the 
 .Crown and rquefentatives of the people, endure that kind 
 oi quibbling which is tolerated between mere private parties 
 in difputes of between Ttuum l^ tuunty in ordinary caufes, 
 in courts below. 
 
 The Attorney, indeed, foon after advances a very com- 
 fortable piece of. news, which is, that '* the quefiion of 
 *' tlie legahty of the, warant in queflion has been decided 
 . *' m acourtof judioftture." I hope he is right in bis in- 
 .?formation, and am very glad to hear it, but cannot help 
 itfayihg,. that 1 nev^er have heard fo much before i altho' I 
 < thiflk 
 
 4
 
 < 79 ) 
 
 thmk fomcbody did ontfe tell me, iha* in a trial at mfi ;r^, 
 where this and another point were in q.K-ft.on, the Lhiet 
 J..{t>ce of the Common Ple.s did del-ver h.s ox^n (entj- 
 ments about the t^arrant itfelf. But this cannot poinbly 
 be what the Attorney alludes to, as it was only xkxtdulum 
 oione Judge at ni/tprm, where this too was not the only 
 pomt, - but mingled in faft with others j and where no 
 fu4gmet has been given upon the verdia, by reafon of the 
 bilf of Exceptions: which therefore is nothing, cannot 
 hereafter be cited in argument as an adjudged caie, and by 
 no means comes up to an a^uciJ dtcifion of a court ofjuiitcd:- 
 ture; as. That always imphes, that the pomt ot law was 
 folemnly argued upon a ftated queftion, before one of the 
 fupreme courts of law, that is, a bench of Judges, and 
 bv them deliberately determined and adjudged. 
 
 As to the allegation of its being ^ in the power of any 
 " one of the parties acting under that warrant, to have 
 * brought it into ifTue at his option ;" what is that to the 
 party injured and aded upon, if he had it not m h.s power 
 
 to h^ve done fo ? , ,. r u--,- 
 
 But without entering into all the obliquities of cbicane 
 Which may be pradifed to delay for two years together, it 
 not entirely to prevent, any determination ; /here arc 
 inanv people who will never believe, that tor fuch a reafoft 
 alone, any Houfe of Commons, in an efTential point of 
 liberty, touching one of their own members, would wai , 
 efpecially in a dear cafe where the law was aot doubtful, 
 to fee what might or might not be done m any mfcnor 
 court, but would immediately come to a ftrong refolution 
 in behalf of the fubjeft at large, that (hould in their printed 
 votes pervade the whole kingdom ; and not leave any 
 country gentleman, or other unlearned man. in a futur 
 cafe of a like fort, to fend for information to fome prac- 
 tkioner of the \.^, before he could tell what to do u. the 
 
 ""mere the birthright and immemorial franchife of the 
 fubjea has bee,> broken, why fhould not the Commons 
 whin affembled, come to a refolution ; -^^^\^^^';^^^l'^^ 
 made to them, the fatt apparent, the law certain ? Woul* 
 Tnot have been conftitutional ? Would it not have been 
 fatisfaaory? When it ^^^^^^ireaiy advanced, that it would 
 be an infult on the underftandmg of rnankind, to pretend 
 that the ufagp of a political^ office could overturn or^uf-
 
 ( 80 ) 
 
 pend the law of the land ; did zny one man attempt to 
 gaiiifay or contradidl the poiitioii ? And if, a recent dc 
 termination at law by any Judge had been upon the point; 
 is it not an additional reafon for the Houfe not hefitating 
 about a damnatory refolution ? Or, if as was before ur- 
 ged, perhaps a little inconfiftently, the point by fomc 
 means or other, was ftill hanging undecided in the court* 
 below; was it not fo much the more necefiary for the par- 
 liament to prevent any fufpenfe thereby in people's minds, 
 about their clear birthright ? Nay, as every body knows 
 that theprefent Houfe of Commons is independent, what- 
 ever others may have been ; will not the receptron, the 
 difcuflion by the longeft debate in the journals of parlia- 
 ment, and the fubfequent fufpenfe and indecifion of the 
 point, make men who had no doubt before, begin to 
 doubt a little now? What {hould make a free, conftitu- 
 tional and independent part of the legiflature, when ap- 
 pealed to by one of its own membtrs, (I may fay fled to, 
 as an afylum from the violence of thofe pretending the au' 
 thority of the crown,) refufe to come to a decifive refo- 
 lution in favour of their own and every other Englifhman's 
 boafted inheritance ? May not this create a doubt in many 
 a fenfible man's mind where there was none before? If 
 the times had been arbitrary, men might have thouq;ht 
 the crcrwn perhaps had interpofed, and that the Commons 
 were therefore afraid to perUft in the aflertion even of 
 their known rights. But there not being the leaft ground 
 now for fucha furmize, it will make many men at a lofs 
 how to account for the parliament's taking up the matter, 
 confidering it, and then coming to no refolution at all, 
 but adjourning it fine die. The point was fo great, that 
 never were the eyes of mankind more fixed upon their re- 
 prefentatives. Indeed, I never faw more ftir in the Houfe 
 itfelf, every body prefling his friend to ftay and vote ; the 
 Secretaries of theTreafury, and other men of confequence, 
 were remarkably a<Stive ; and every thincj wore the face of 
 a dedfive day. Why, after all, no refolution was come 
 to, I never could learn. I am fure what has becrh urged 
 without doors, has not the leaft femblance of reafon or 
 conftitution. Indeed, in all my reading of paft times, I 
 have never met with any like it. On fuch points, the 
 Commons ever ufed to proceed to a ftrong refolution. 
 What therefore influenced the minifters oa that day, J 
 
 ~ caa
 
 ( 8i ) 
 
 cannot guefs, liiilcfs it be what I dare not name The 
 common report is, that they carried their point, in coming 
 to no refolution, but by fourteen ; that during the debate, 
 they were apprehenfive the majority would be aganift tnem ; 
 that many of their very beft friends voted, and fome even 
 fpoke againft them ; that fome 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 j 
 nd 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 mex- 
 preffible; fubftantial old citizens, who could not flcep 
 from concern, (topped members as they paffed m their 
 chairs, to know the event ; in (hort, the face of mankind 
 could not fliew more diftrefs, if the conftitution had been 
 actually giving up to a Stuart, in one of its moft effentiaL 
 and vital parts, by a Tory and paffively obedient parlia- 
 ment. And why all this ? I am curious to know ; 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 circumftances," the At- 
 torney may think there ftiould be " abfolutely to require 
 " their interpofition," I know not: but Iftiould imagine 
 thefe few cij-cumftances would be fully fufficient ; namely, 
 that the aft complained of was committed in time of pub- 
 lic tranquility, without a colour of law, by a King's mi^ 
 nifter, upon one of the reprefentatives of the people, in a 
 free country, on a chaj-ge of the moft difputable of all 
 crimes, which is at moft- but a mifdemeanor ; when too, 
 however appareiltly libellous the words might feem without 
 dodrs, 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 m hu 
 place within doors, fince the memorable cafe of The 
 Five Members. 
 
 Moreover, to return to the refolution propofed, whcra 
 
 a praaice h^ obtained in a hifch office, which is clearly 
 
 * . ontrary
 
 ( 8 ) 
 
 contrary to law, and it is a matter thatiicarly affeh the 
 perfonal privilege of every freeman, it feems to me tbajt 
 the very thing which a Houfe of Commons would natu- 
 turally do, is, to come to a refolution, damning that prac- 
 tice, and to go no farther ; for to bring in a bill upon 
 the occafion, would Jock as if a new law was neceflary, 
 becaufe prior to that the praajce had been efteemed ]egal| 
 or at leaft very dubious. The bringing in a bill would 
 be countenancing, in fome meafure, what had been done, 
 and look like a new regulation fetting a-foot. Befides, 
 an a6t of parliament newly made, is not fo venerable in 
 the eyes of the world, or fo fecure againft futuro- altera- 
 tions, as the Old Common Law of the Land, which ha 
 been from time immemorial the inheritance of every Eng- 
 lifhman, and is, on account of its antiquity, held, as it 
 were, facred in every man's mind. 
 
 If a matter of conftitutional concern and alarm bt 
 ftirred in the Houfe, and the Members do not feem clear 
 about the law, it is natural and ufual for the Houfe to go 
 into, or appoint a Committee, for the purpofe of looking 
 into precedents, to fee how the Houfe has afted in fimilar 
 occafions, and what the conftitution is -, but, when the 
 matter is fo clear at the very firft blufh, that nobody has 
 any doubt about it, one cannot readily frame to one's 
 mind any reafons againft coming to a refolution at once 
 that may fatisfy the ^Public. To call for cafes of this 
 having been done is unneceflary, becaufe the. nature of the 
 thing fhews it is right. Some things are fo plain of them- 
 lelves, that no cafe can make them plainer. This power 
 of interpofition in the Commons, flows of neceffity fron> 
 the nature of the government; they could not be the 
 grand inqueft of the nation, the great council of the realm, 
 iponfors for the republic, or guardians of the rights of 
 the people, without pofTefling it. To fuppofe that they 
 have the power of inquiring, and that it fbould be proper 
 for them fo to do, and yet not come to any refult, in 
 confequence of fuch their inquiry, feems to be paft un-. 
 derftanding ; and, where a matter is among the firft prin* 
 ciples of the conftitution, it is in vain to be looking for 
 cafes to prove it ; nay, fuch a proceeding would look as if 
 this right could not be put in ufe, unlefs fome inflance of 
 it^ having been exerted were produced to warrant the cx- 
 rctfe of it. But, iodeed, tljerf is agot^r r^eajpn why
 
 (3) 
 
 examples need n6t be cited, which Is, that they afe (o njt" 
 merous, that no man can read through the times of the 
 four Stuarts, without finding the journals of Parliament 
 full of than. 
 
 As to the inftances quoted and ridiculed by the Attorney, 
 it feems to me that they dire-illy apply to the main hiage 
 of the difpute, that is, to the pradice in Parliament of 
 interfering by refolution in matters of law ; nay, they go 
 ftill farther in point, for they pnore that the Houfe has 
 interfered by refolution in matters of law, where prece- 
 dents and practice were cited, and admitted, in fupport of 
 the^fflalefador ; and that this had been done, not only in 
 ^fes of public concern, but even in a private cafe, where 
 the illegal warrant itfelf had been iflued at thfe defire of a 
 father againft one of his own children, upon a mere family 
 motive. In this laft cafe, the fimple fa(S was this, Lord 
 Danby fitted out a fmali veffel with arms, unknown to his 
 father the Marqutfe of Carmarthen, Lord Prefident of the 
 Council, who acquainted Zjord Nottingham, the Secretary 
 of State, with it ; he had not time to put this information 
 into writing, nor was it upon oath, but wrote it, upon 
 memory, for his own fatisfadion. Lord Danby is taken 
 up, and fays, *' the vefTel was his own, and fitted with 
 *' the arms it had before to make ufeof for hisdiverfionj" 
 which the Secretary found (o ingenuous an anfwer, that he 
 releafed hisLordfhip without bail, upon his promifeonhis 
 word and honour to appear upon fummons. Some of the 
 Members, however, faid, '* This proceeding flicks not 
 * only on the people, but their Reprefentatives may be 
 *' in danger. If, by intreaty, a man may be taken up in 
 *' this manner, every mother's fon may be taken up. Na- 
 '* tural afFedtions muft not be ufed to try tricks with the 
 '* government. Lord Nottingham granted the warrant 
 *' without oath." Ho^vard fays, " It will juftify Locd 
 *' Nottingham, becaufc i;e had his information from a 
 ** Privy-Counfellor." ** I would be fatisfied whether a 
 ** Privy-Counfellor muft not give information upon oath, 
 *' as well as another ? If this warrant was granted as a 
 *' Privy-Counfellor, or a Juflice of Peace, I know no 
 *' law for it; for, if fix Privy-Couufellors do it, and here 
 *' is but one, it is worthy your confideration. If as a 
 *' Juftice of Peace, he cannot take up a man witheut 
 ** ath. If one CounfelJor fhiU whifper to another, atvi 
 
 " im-
 
 (U) 
 
 ' iilpi"i/ori a fhari, 1 Jchow not who can be fafc. tt W6 
 
 ** take up this now, at the rate eJedions go at, and the 
 
 ** determination in Sir Samuel Bernardifton's cafe, they 
 
 *' may have a Parliament as they pleafe. I know not but 
 
 *' that it may be in the power of one great man to make 
 
 ** a Parliameht. I fliould be loth to go without this be- 
 
 ** ing decided ; there would be no fafety for me when I 
 
 *' am at home. In two months this man may go round 
 
 *' the Houfe thus: I hope, as Englijhmen^ We fliall not 
 
 *' forget our rights ; and any man that will do this, is not 
 
 *' fit to be employed in the government. I would not 
 
 *' have it go ofF that he can warrant the thing. Profc- 
 
 ** fecution of a writ will hinder a member from his attend-^ 
 
 ** ance. He faid, " the warrant is for freafonable prac- 
 
 *' tics," which is bailable. I hear it moved to refer it to 
 
 *' the Committee of Privileges to inquire into it ; but I 
 
 ^' think that not fit. From whom will you have informa- 
 
 ' tions ? Will you fend for Lords Nottingham and Car- 
 
 *' marthen? I would have a good correfpondence with the 
 
 *' Lords: the Peers will not come to you, and there will 
 
 " be a rupture. But if you will come up to the motion, 
 
 '* for your honour andeafe, vote the Breach of Privilege, 
 
 ** and then addrefs the King to take order that the like 
 
 ** be not done for the future. Granting the warrant is a 
 
 *' thing that muft not be palTed by fo haftily. You will find 
 
 *' it\N mefiengers that will deny fuch execution of a war- 
 
 " rait. The Meffenger (fays the Speaker) undoubtedly 
 
 " breaks your privilege, as well as the bailifF that arrefi-s 
 
 *' your Member. The bailifF and he that fues out the 
 
 '* writ againft a member (adds Mr. Haivles) are upon 
 
 *' record ; and if you only call upon the perfon who does 
 
 *' officiate, your privilege will be quickly loft. Whoever 
 
 *' ifTuesout the warrant, is more, or equally, guilty than 
 
 '* he that executes it, (fays old Sir John Maynard.) As 
 
 ** this cafe flands, a member is imprifoned, and a warrant 
 
 ** is made to take him iox treafonable pracJices ; if we take 
 
 *' notice of it, and let a member fit among us fo accufed, 
 
 " we cannot well anfvver it. We are to vote it a breach 
 
 *' of privilege, and then inquire what thofe treafonable 
 
 ** prailices are. At this rate we may all be imprifoned, 
 
 ** and whipped to our lives end. Vote it a breach of pfi- 
 
 *' vilege, and fit not mute upon fo plain a breach. . (To 
 
 " which Sir John Thompfon fubjoins) He that touches 
 
 *' tke
 
 ( 85 > 
 
 *V the Parliament, touches the vital part of the natfoa* 
 " The -man is not fit to be Secretary that carries about 
 ** him the leglflative autliority to commit in this manner. 
 " The Meilenger had been clapped up, if he had not done 
 " it. Put the queftion thus; "- That granting the war- 
 " rant without notice, &c. was a breach of privilege, 
 *' &c." The Houfe then refolved. That the granting 
 ' a warrant to arreft the Earl of Danby, a Member of 
 ' this Houfe, and thp taking him into cuftody by virtue 
 *' of that warrant, is a breach of privilege of this Houfe." 
 The four cafes are perfectly appofite to the great queftion 
 of parliaments interpcfmg by refolution, where the known 
 law has been broken by the hand of power. And, I 
 fhould think too, that if a cafe confifts of four points, and 
 a precedent can be found for each point. That cafe would 
 be fully proved by thofe four precedents, according to my 
 notion of logic. At lead, a man who denies the reafon- 
 ing on this head, has no right to .;ccufe his antagonift of 
 '' unfairnefs and quibbling^'* as the Attorney does through- 
 jout; and, from what I fee of his performance, ^ou^jj 
 therefore imagine he could only do fo, in order to foreftall 
 the charge, and to prevent its b-ing applied to himfelf. 
 And fo far from being angry, as he is, with two of thefe 
 cafes, for being applicable to a Chief Juflice oftheKtng^s- 
 Bench, I like them the belter for it, and wifli, that when- 
 ever a Chief is found to be clandeftinely meddling m mat- 
 ters of ftate, in pcrvcrfion of the law, he may be dragged 
 into broad day-light, and his name and memory be branded 
 for ever, to the latell pofterity. I cannot, indeed, figure 
 to myfclf a meaner or more pernicious perfon than a Chief 
 Juftice, with a great income for life, given him by the 
 public, in order to render him independent, privately 
 lidcning to every inclination of every miniftry, and warp- 
 ing and wire-drawing the plain letter of the law, in order 
 Kraccommodate it to their inclinations, inftead cf purfuing 
 thccourfe of dtablifhed precede/its, inviolably, intrepidly, 
 and openly, without regard to party or perfon. The 
 chapter of expediency is the very worft fource of adju- 
 dication, infomuch as it tends to the fetting afloat, by 
 degrees, the whole law of the realm. 
 
 '* In our law, the Judges are bound, by a facredoath, 
 *' to determine according to the known laws and antient 
 *' cuftoms of the realm, fet down in judicial decifions and 
 
 M
 
 ( 8<5) 
 
 ** refolutioiis of learned, wife, and upright Judges, upon 
 ** variety of particular fats and cafes, which, when they 
 ** have been thus in ufe and praftifed time out of mind^ 
 ** are a part of the common law of the kingdom. And 
 *' it is a moft dangerous thing to fhake or alter any of the 
 *' rules or fundamental points of the Common Law, 
 ** which, in truth, are the main pillars and fupporters of 
 ** the fabrick of thu Commonwealth. To have no rule 
 ** to decide controverfics but the rule of equity, is to 
 *' begin the world again, and to make choice of that rule, 
 ^' which out of mere ncceflity was made ufe of in the in- 
 " fancy of the (late and indigency of laws. And to fet up 
 ** this rule, after laws are eflablifhed to relieve hard cafes. 
 ** and leave the matter at large, is it not ratiier unravel- 
 ** ling, by unperceivcd degrees, the fine and clofe texture 
 *' of the law, which has been fo many hundred years 
 *' making ? The laws of this kingdom are not, naw-a- 
 ** days, to be fpun out of mens brains, pro re nata.'* 
 *' To allow of any man's difcretion (fays Lord Coke) 
 *' that fits in the feat ofjuflice, would bring forth a mon- 
 " ftrous confufion." It i-;, indeed, wonderful that any 
 man fliould have fo ferviic a difpofition ; for, let his abili- 
 ties be what they will, he will always be regarded as a con- 
 temptible perfonage. This fort of profligate maglftrate 
 may be fure of being ufed by every miniftry, but of being 
 efteemed by none, feeing no fet of men can depend upon 
 him any longer than they remain in office and power ; his 
 only prmciplc of adion being an implicit obedience to the 
 old tutelar Saint at St. James's. Hemuft be, in truth, 
 
 A tim'rous foe, and a fufpiclous friend. 
 Dreading e'en fools. 
 
 And " Cowardice in a Judge is but another name for 
 '** Corruption." 
 
 Since tlvefe two examples of the Commons declaring the 
 
 law, even in oppoiitlon to the practice and d.cifions of 
 
 Chief Juftices, have been mentioned, I cannot forbear 
 
 noticing two or three circumilances in their cafes, which 
 
 tally moll furprifmgly with fome of the dodlrine I have 
 
 'advanced, and with the caufe that gave occafion to it. 
 
 " The committee reported feveral cafes of reftraints put 
 
 ' upon Juries by L. C. J. Keeling ; among other things, 
 
 that,
 
 f 87 ) 
 
 that, " in an iadi(lrnent for murder, which the Jury 
 *' found manflaughter, becaufe they found 110 malice pre-t 
 *' pence, he told them, theymuftbe ruled by him in mat- 
 '** tcr of law, and forced them to find the bill, Murdec; 
 *' and that the man was executed accordingly, without 
 '* reprieve, notwithftanding the addrefs of the Gentlemen 
 *' of the Bench to him. That he forbid a Habeas Corpus, 
 ** and a Pluries to be ifTued out ; fo that the party was 
 *' obliged to petition the King." The Houfe thereupon 
 refolved (r.) " That the proceedings of the faid L. C. J. 
 " are ifinovations in the trial of men for their lives and 
 ** liberties. And that be has ufed an arbitrary and ilUgal 
 " power, which is of dangerous confequence to the tlvcs 
 .''* and liberties of the people of England, and tends 't'o 
 '* the introducing of an ^ri/Vrfl?;>' government. (2.) That 
 *' in the place of judicature, the L. C. J. has undervalued, 
 ** vilified, and contemned Magna Char ta^ the great pre- 
 '* ferver of our lives, freedom, and property." As to 
 L. C. J. Scroggs^ there was a great complaint againft 
 him, for his treatment and difcharge of a Middle/ex 
 Grand Jury, before they had prefented all their bills, for 
 arbitrary proceedings in cafes of //^(f/, and other matters, 
 and for ifTuingof illegal General IVarrants for perfons and 
 papers. The Law-members in the Houfe urged, that 
 *' if a Grand Jury be difchargcd whilft indi<5tment$ are 
 *' depending, there could be no proceedings of juftice. 
 " The Jury was likewife blamed by the Chief Juftice, 
 " and told, that they meddled with matters which concerned 
 " thetn not. In former times. Judges had one rule of 
 ** juftice to go by, and another of policy, and if Judges 
 *' once undertake that, there is an end of ail law. Shall 
 " we have law when they plcafc to let us, and when 
 " they do not pleafe (hall we have none ? It is afi'uming 
 ** J legiflative power, by which a Judge makes his will a 
 ** law. Do as -^ou have done already in this Parliament^ 
 ** make a vote upon them. If you do not deeply refent 
 ** this, all your laws will fignify notliing to pofterity j 
 ** for all is at ft^ake, if men take upon them to proceed fo 
 " arbitrarily, and are fofervilc as to vini;ite laws for'fclf- 
 " ends. I will not define the offcnc.-, but, I think, 
 *' thefe proceedings do fubvert the fundamental laws, and 
 ** fo I would go to the utmolt feverity of judgment. 
 " The firft violation of Magna Charta, wai from the 
 M 2 " two
 
 ( 88 ) 
 
 * two Chief Jufticcs TrefiUan and Belknap^ and thefo 
 *' Judges have now taken upon thenri to fubvert the 
 *' rights and privileges of the rubje<S. My opinion is to 
 *' make the quefiion before the Houfe general. In Scotland 
 *' they have what laws their go\'crnors plcifc to impofc 
 ** upon them ; let us take care that our condition be not 
 " brought to that. I would ghdly know what way there 
 ** is to bring a great criminal to punifhment but in Parlia-* 
 ^* liament (and we have little hopes there, by what I have 
 *' feen) if ever you admit Judges to let Juries, or not, 
 " inquire into offences, as they ple^fe. I think I can re- 
 *' member a precedent, when the Judges took upon them 
 " to violate the laws, and fo did violate the King's oath 
 *' and their own, and were hanged for their pain^ ; and 
 ^' I ftall maken^great fcruple to do it again. Printing I 
 *' take now to be free. A fubje(^ hath, by law, liberty 
 *' to write, fpeak, or print ; he may be indicted, if he 
 '* tranrgrefs, and it is at his peril, if he ofFends. Shall 
 '* not a man fpeak, unlcfs he be livcnfcd. The Court of 
 ** King's Bench was ^t Scroggs's dire6lion. But, if 
 " Judges can be found to make new laws by their inter- 
 * pretation of the old ones ; and if Treafurers can be 
 " found, &:c " '' A Committee was appointed to exa- 
 " mine the proceedings of the Judges in Weftminfter- 
 " hall, z,nA to report the fame, with their opinions there- 
 ** in, to the Houfe.** Upon the report of the Com- 
 mittee, *' the Houfe refclved, nemine contradicentCy That 
 " the difcharging of the Grand Jury by the Court of 
 *' King's Bench, before thelaft day of the Term, and before 
 *' they had finifhed their prefentments, w^s arbitrary and 
 *' illegal, deflrudlive of public juftice, a manifeft violation 
 ** of the oaths of the. Judges of that Court, and a means 
 ** to fubvert the fundamental laws of this kingdom : That 
 " it is the opinion of this Houfe, that the Rule made by 
 " the Court of King's Bench againft printing of a book, 
 *' called, The Weekly Pacquet cf Advice from Rome, is 
 ** illegal and arbitrary, thereby ufurping to themfelvea 
 ** legiflative power : That the Court of King's Bench, 
 *' in the impofition of fines on offenders, of late years^ 
 '* have ated arbitrarily, illegal and partially : That the 
 ^' refufing , fufRcient bail in thefe cafes, wherein the 
 '* perfons committed were bailable by law, was illegal, 
 ^ axif^ a high breach of the liberties of the fuhjecft ; and
 
 t 9) 
 
 *^ That the warrants * ifTued by the King's Bench ar 
 ' arbitrary and illegal. And it was ordered, That the 
 ' faid report, and the feveral refolutions of the Houfe 
 " thereupon, be printed ; and that Mr. Speaker take care 
 *' in the printing thereof apart from this day's other votes." 
 Thus did the Commons behave in the cafe of two Chief 
 Juftices of the King's Butch, and their condud is fo decifivo 
 upon the point we now are, tiiat no words can add to the 
 force of it. But there was another thing, which was done 
 in the fame feflion, that I cannot help relating. The 
 Under Secretary of State, by direaion of Sir Lionel Jen- 
 kins, Secretary of State, who had received a verbal order 
 from the Clerk of the Council for the purpofe, writes ^ 
 letter to a gentleman at Dover, defiring him to wait upon 
 the Mavor, and dircd him to feizc a Man, if he fhouW 
 land there, together with his companions, and detaiix 
 them until further direftions i and in this letter there is m- 
 clofcd a particular defcriptiou of the Man, and his name 
 faid to be Norris or Morris. The information upon which 
 this letter or order proceeded, was not upon oath. How- 
 ever, whr-n Norris hnded, he is taken and carried before 
 the M..>-or, who thought it reafonable to commit him to 
 the common prifon, and to feize his papers. When that 
 was done and known, there were two orders of Council 
 
 * f Angl. ff. Whereas there are divers ilt-difpofed perfont, who do daily 
 print a,l publift many feditious and treafonable books and pampiets,cndea, 
 vouring thereby t. dilpofe the minds ot his Majcfty's fubjedU to fedit.on and 
 reb-llion : And alfo infamous libels, reflccling upon particular perfons, to 
 th. great fcandal of his Majcltys government. For fuppreflins '^*'^.'^'l 
 ^Url^y has 'ately iffued his royal proclamation: And tor the more Ipeedy 
 fuppreil-ng d-x f-aid feditious books, libels and pamphlets, and to the end 
 tha: the Authors and Publlfh^rs thereof may be brought to their punifhrn^ent ; 
 
 " Thefe are to will and require you, and in his Maj.fty sname to clurg. 
 ,nd command you, and every of you, upon fight hereof, to be a, dmg and af 
 fiftmg to Robert Stephens, Meffenger of the Prefs m the fe.zmg on allfuch 
 bookt and pamphlets as aforefaid, as he fhall be mforrned of, m any Book- 
 fellers or Printers fhops or warehoufe., or elfewherr v-:tfoever, to the end 
 they may be difpofed as to Law (hM appertain. Alfo if you &= be in- 
 formed of the Authors. Printers, or Publiihers of fuch books or pamplet , 
 as are above mentioned, you are to apprehend them, ^""i ,h=^^*. ^J^^!!!"," 
 one of his Majefty's Juftices of the Peace, to be proceeded agamft accordins 
 to law. Dated this 29th of November, 1679. ci,,;i 
 
 To Robert Stephens! Menrenger of the Prefs ; >"<lf J.".J**y"'. ^"^k 
 Bailiffs, Conftablcs, .nd.all other Officer! and M.n-fter. whom th.fe 
 in>y ccncem, y^ ^^ozgs-
 
 C 90 ) 
 
 to the Mayor to flop and deliver him to a Meflcnger, who 
 is fent down on purpofe to bring him before the Council, 
 in cuftody ; and the papers are ordered to be lodged in the 
 council cheft. Norris, after being examined, was dif- 
 mifTed, and it was declared there was no farther caufe of 
 detaining him ; and tiie verbal order firft mentioned was 
 
 "pever entered in the minute-book of the Council. Upon 
 this cafe, a complaint is made to the Houfe of Commons, 
 who immediately appoint a Committee to inquire into and 
 report the matter to the Houfe, which is done accordingly. 
 The Members enter warmly into the grievance, and fome 
 of them fay, " I would know how the Privy-Council 
 *' came to have a defcription of this man. It may be, 
 '* the French AmbafTador has had fome influence in 
 *' Councils. I do net know what flopping a man on the 
 *' way or road is, to be immediately fent up to the Coun- 
 " cil by a Mayor or Officer, uprm verbal order. I know 
 " nothing of a verbal order of Council ! In cafes of necef^ 
 *' fity to commit illegal aSiions thefe are (Grange alFertions 
 *' for what have been done, or what may be done. The 
 *' Thing is all of a piece, for fome great perfons are con- 
 *' cerned in it. Let Gentlemen make it their own cafe. 
 " I fee not who is to blame, but he that figns the war- 
 " rant ; nothing appears to you elfe, therefore put a 
 *' brand upon it. A parcel of men there is, who abufe 
 " the King, and ftill you muft be tender of them, and 
 *' thefe men muft ftill be about the King." Thereupon, 
 Sir Lionel Jenkins very honourably took on himfelf the 
 letter written by his Under Secretary, and faid, in excufe 
 of himfelf, that he was but minifterial in the affair, owned 
 he had the information from a man who had it from ano- 
 ther, and that he related it to the Council as he thought it 
 his duty ; that he had thereupon a verbal order to feize the 
 perfon informed of, and, in confequence of that, gave di- 
 rection to his Under Secretary to write the letter before- 
 mentioned, and if any thing had been done unjuftifiable, 
 
 . that he himfelf muft anfwer it ; that he thought it was 
 treafon for a Romifti Prieft to be upon Englifh ground, 
 and felony in Norris to receive him ; and that, in his poft, 
 he could do no other than obey his fuperiors ; and that he 
 humbly took leave to aver, that a verbal order in a Com- 
 mittee of Council, is what is not entered into the minutes 
 
 of
 
 ( ^I > 
 
 f the Council. The Houfe defired Sir Lionel to with- 
 draw, which he accordingly did, and then they refolved,- 
 *' That the late imprifonment of Peter Norris, at Dover, 
 " was illegal ; and that the proceeding of Sir Lionel Jen-. 
 *' kins, Knight, one of the principal Secretaries of State, 
 ** by defcribing the perfon of the faid Norris, and direcl- 
 *' ing fuch his imprifonment, was illegal and arbitrary j" 
 and they made an order for printing the cafe of Peter Nor- 
 ris at large, which was likewife done. Now, here the 
 Commons, without any communication v/ith the Lords, 
 refolved a point of law, altho' Norris might have brought 
 an aSiion of fahe imprifonment, had the opinion of a 
 court of law, and recovered damages for a fatisfadion 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 condutSt and interpofition of the 
 Commons under the houfe of Stuart, both father and 
 fon, with refped to the law of this kingdom, when in- 
 vaded by great officers of ftate ; and yet thefe were 
 Princes who claimed a right of governing the kingdom, 
 paramount the \2ivi%,'pirc divino\ whereas it is the honour 
 of his prefent Majefty's family to derive their fole title 
 from the choice of the people, from an Englijh act of 
 parliament. There is not, therefore, the leaft divinity 
 that can now be pollibly imparted from the throne to any 
 of the prefent miniftry ; they are mere men and creatures 
 of civil polity, and their a^iions may be judged by the 
 common law of the land, without either blafphemy, or 
 any extraordinary or occafionai ftatute for the purpofe. 
 
 This being fo', I am amazed that the Attorney (hould 
 think a bill neceflary ; becaufe, if there be no law now 
 exifting, that authorizes General Warrants in any cafe 
 whatever, it really feems to be ridiculous to bring in a bill 
 " to regulate what docs not exift j" an argument, I find, 
 which he affeds not to comprehend, merely becaufe he is 
 unable to anfwer it. '' The Evil" is the pradice or 
 ufage which has grown of late, within the time of our 
 fathers, in a clandefline office, contrary to the funda- 
 mental law of the land ; and when this pradice has been 
 lleteded, tlje parliament need only damn it, and leave the 
 
 la 'AT
 
 ( 9i ) 
 h^ as it was, without " the, alteration even of an loti hi 
 ** matter or form." The Attorney, by an zt\ of par* 
 Itament, would, 1 perceive, fain make law of this modern 
 liiage, under a pretence of bettering thereby the old com- 
 mon law ; but, I fancy, he will find moft people of 
 opinion againft him, and as much afraid of his coarfe hand 
 as of his fuperiors refinements, and, therefore, beg to 
 We the law remain iis it is. No ad could poffibly antvver 
 the end of a refolutlon, unlefs it were, perhaps, a fhort 
 declaratory ffatute of three lines, reciting that, *' Whereas 
 *' a novel prallce, had of late years gained footing m 
 *' fevcral minifterial offices, whereby General Warrants 
 *' for the apprehenfion of perfons under a general defcrip-' 
 " tion, without naming any in certain, had been ifTued 
 *' from fuch offices j contrary to Magna Charta fo re- 
 *' peatedly confirmed, and to the immemorial and efta- 
 *' blifhed rights of every Freeman, and to the known 
 * laws of the realm ; Therefore, by the diredion and 
 * confent of King, Lords and Commons, be it de- 
 ** clared. That fuch practice is in all cafes illegal, re- 
 ** pugnant to the fundamental principles of the confti- 
 *' tution, dangerous to the liberties of the fubjedt, and 
 *' abfolutely unwarrantable.** 
 
 Old Sir Edward Coke faid, with fome humour, i'rf 
 Charles the Firft's reign, at the head of the Commons in 
 
 their conference with the Lords ** For a Freeman to 
 
 ** be tenant at will of his liberty ! I will never agree to 
 ** it: it is a tenure not to be found in all Littleton'* *' It 
 *' is (as he fays, in one of his treatifes) a great deal better 
 *' for the ftate, that a particular offender fhould go unpu- 
 *' nifhed, on the one hand, or that a private perfon, or 
 '^ public minifter, fhould be damnified on the other by 
 ' the rigour of the law, than that a general rule of law 
 *' fhould be broken, to the general trouble and prejudice 
 
 - *' of many." Therefore, I beg leave to enter my pro- 
 
 teft againft any bill, to regulate what I hope will never- 
 
 exift. The ancient Britons in a body, told Augufiine 
 himfelf, y^ non prijfe ahfq; fuorum confcnfu & licentia pr'ifc'n 
 ahdicare tnoribus . And, as to his prefent Majcfty, on<; 
 
 - may fay, \\\ the words of the famous Serjeant GlanviJle, 
 ' (fincel am in the humour of quoting) *' There is no fear 
 ** of trufting him with any thing, but ill counfel againft 
 
 ' the
 
 ( n ) 
 
 ** the fuhjcB: ;' for, when once he is truly informed 
 what his people's prifci mores or Common law is, he will 
 never countenance any officer in abdicating them abfq-y 
 confenfu et licentia fuorum. 
 
 I can afTure the Attorney, that I have, according to 
 his dire6^ions, '* ferioufly attended to his arguments." 
 However, I very much doubt, whether the Miniftry will 
 pardon him for obtruding his private reafons as thofe which 
 weighed with them, to put off the determination of the 
 queftion. Indeed, if any of the arguments he has adduced 
 on this head, were really of weight with them, I Ihould 
 think it rnuft be that which he grounds on the imprac- 
 ticability of pleadings with effe<f>, fucb a refolution in any 
 of the courts of judicature ; for 1 fincerely eftecm this to 
 be by far the moft fatisfaclory of all. I know, my Lord 
 Coke does fay very emphatically, that the fcience of beau 
 pleader is the very hcart-JIri7ig of the laiv. It would 
 therefore, I confefs, be a lamentable thing to have the 
 Crown-pleaders ** divided and confounded" in this their 
 nice and artificial department of the law. Confidering 
 the prefcnt knotty difficulties attending thefe gentlemen, 
 to throw any additional rub or ftumbling block in their 
 way, would be unpardonable in any good-humoured admi- 
 hiftration. I do not, however, pretend to form a deter- 
 minate judgment of the miniftry's reafons for avoiding ^ 
 refolution, as 1 have not vanity enough to fuppofe I caa 
 fathom them. Perhaps, they might be fomewhat prefTed 
 in time, having other weighty affairs in hand, that the 
 vulgar know nothing of, and therefore would not come 
 to any dccifion 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 oppolition, refolving withall to 
 refume it thcmfclves the very next feffion, which laft, 
 indeed, I am very apt to think may be the cafe ; or, per- 
 adventure, there might be other lefs ollenfible and more 
 predominant reafons for their havin'^ fo notoiioufly ex- 
 erted the utmoft of their iirength, merely to avoid the 
 coming to any refolution at all. They faid nothing in- 
 cpnfiftent with any conduit ; and, as many of their beft 
 friends voted againft them, it cannot be fuppofed they 
 would run fo much rifle, without fome very extraordinary 
 N rea-
 
 (94) 
 
 reafons for fo doing. It would not, however, be dif- 
 agreeable to the public, to know from the pen of a mini- 
 ftcr, efpecially, from one of them that declines no labour, 
 and has been a praclifmg lawyer himfelf, what really were 
 the arguments that fwayed him to be for an abfolute ad- 
 journment of this queflion, when fo many people were 
 of opinion it would have been more for his intereft to 
 have taken the popular fide, and agreed to the refolution, 
 if not as firft moved, at leaft, as finally amended, nar- 
 lowed and particularized by his learned co-adjutors. Such 
 information would be much more acceptable, than the little 
 fcraps of politics and intelligence, which one now and 
 hen finds in the Dailj Gaxetteer^ and which the common 
 ^ader, upon the very firft view, attributes to Jemmy 
 Twitcher, (or his fecond, Dr. Shebbeare,) who, I pre- 
 fume, is not of the Houfe of Commons, and is, perhaps, 
 feme man that is too much unacquainted with law, and 
 of too little gravity to be equal to fuch a performance, 
 and therefore, contents himfelf with doing bufinefs in 
 another way, arid only now and then writes off" a fquib, 
 upon his knee^ for one of the daily papers, as any matter 
 happens to ftrike him, at home, in the cofFee-houfe, or 
 at the tavern ; in company with his wife and family, his 
 miftrefs and girls of the town, with minifters of ftate, 
 gentlemen of fun, bawdry and blafphemy, or fingers of 
 catches. Altho', I know it is the opinion of fome people, 
 that any thing will do for the public (poor John Trot.) 
 
 The Attorney feems to think, he has fo fufiiciently 
 defended the Majority, that he may fwagger a little, and 
 therefore afks, Is this all that you have to complain of ? 
 I really thought you could have made out a more moving 
 tale ? What is capable of moving him, I know not ,j but 
 I can afTure him, that people in general, think the plain 
 0ory fo bad, it is not well capable of being exceeded : 
 and, all he has convinced me of, is, that tliere is nothing 
 fo bad, but fome man or other, for the pre fen t penny, 
 may be found hardy enough to undertake either the execu- 
 tion or the defence of. When I hear a man call an aflual 
 arreft of a member of parliament, on the mere charge of 
 a libel ex officio^ and tlie feizure of his papers, " a phan- 
 *' tom of imagination ;" and remember to have heard 
 the fame man declare at his outfet upon this queftion to a 
 
 vexy
 
 (95 ) 
 
 very great aflembly, ** that he had long been a member of 
 " it, but had rarely attended, becaufe he did not think 
 " it worth his while before, having more valuable bufinefs 
 '* elfewhere ;" and recolle6t fcarcely ever to have ken 
 him in that alTembly, or at leaft to take any part in it, ex- 
 cept when the confirmation of " another pillar of the 
 " conditution, the Habeas Corpus law," was in agitation, 
 by virtue of a bill too (the mode that he novyr feems fond 
 of) and that he then gave an earneft of his patriotifm by 
 being the champion of the oppofition to it, infomuch, 
 that he rouzed the indignation of the Great Man of the 
 age (then a minifter) who could not forbear ftarting up and 
 reading to him, upon the fpot, the refolutions of theever- 
 memorable parliament of Charles the P'irft, on behalf of 
 the rights and liberties of Englifbmen, being therein fup- 
 ported with great eloquence and ftrength of argument by 
 the then Attorney General; another great lawyer, and a 
 particular friend of this laft gentleman's, having indeed 
 been the occafion of the bill : when all this, I fay, prefents 
 itfelf to my mind, 1 want nothing more for forming a 
 declfive 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 befl endeavours to 
 ftrangle this Habeas Corpus bill ; but then, he did it in fo 
 delicate and qualified a manner, that furely he cannot ex- 
 ped to have his pafs for a firft-ratepart upon the occafion, 
 no more than on another, when he gave up (from com- 
 plaifance, I prefume) an opinion that he had drawn and 
 ligned relative to a profccution, and fubmitted to concur 
 in that of an over-bearing collegue, who, tho' a fubordi- 
 nate co-adjutor in rank, by the boldnefs of his temper, 
 took the lead in the matter. 
 
 I cannot help here remarking, that ticklifh times or 
 political ftruggles, always bring To Hght the real abilites of 
 men, and let one fee whether a man owes his reputation 
 and rank to family, learning, and an attention to pleafe, 
 or to real great parts, a found judgment, and true noble 
 fpirit. People of the latter clafs, become for ever more 
 confiderable by oppofition ; whereas the former,by degrees, 
 fink to common men in it, and (hould therefore never 
 quit for one moment a court, or, if by connection and 
 chance they are obliged fo to do, fhould return to it again 
 as fad as they can. 
 
 N 2 Being
 
 ( 96 ) 
 
 Being one of thofe men, who thitrk that " The heart- 
 ** blood of the commonwealth receives life from the pri- 
 " vilege of the Houfe of Commons," that is, in all mat- 
 ters where a difpute is likely to He between the crown 
 and the people, I cannot help noticing any the kaft inci- 
 dent, that ieems to me to break in upon it at all, and en- 
 deavouring from the condudt of men, even in fuch little 
 matters, to find out a clue that may unravel their difpo- 
 fition in concerns of much greater moment, not judging 
 of politicians in the leaft, from the profeflions they make, 
 but from their a(?tions, as the genuine expofitor of their 
 foul. I have likewife remarked, that univerfal civility and 
 a fmiling countenace, do not necefTariiy imply friendfhip 
 and fincerity, or candid difcourfe a real difintereftednefs. 
 And no Do6lor, however learned in civil life or the 
 morals of Epicurus, fliall negotiate me into another opini- 
 on. But, by privilege of parliament, 1 do not mean that 
 Hiameful exemption from private arrefls, v^hich feems to 
 me to operate againft liberty intirely, and to render a Houfe 
 of Commons no other than an afylum for needy debtors ; 
 who, you may be fure, when once they are elected, like, 
 all other people in worldly diiirefs, both will and muft da. 
 any thing for ready pay ; and, altho' one of this defcrip- 
 tion may be afliamed to look mankind in general in the 
 face, yet upon any call of a puliied minifter, he will 
 contrive tofkulk down to the Lobby, and be fure fo to 
 difpofe of himfelf, as to be able to ccme forth, whenever 
 the divifion takes place, and then, perhaps, difappear till 
 a fecond call of confequence fhall render his appearance of 
 fome worth agaii:. 1 fpeak alone in fupport of privilege 
 againft the power of the crown. Now, I remember be- 
 ing in company not long ago with fome lawyers, who 
 were talking over fome late events relative to Mr. Wilkes, 
 and one of them was faying that there wss no doubt about 
 the proceeding in this refpect, occafioned by Mr. Wilkes's 
 having a defign to lay hold of the firit moment for bir- 
 ring a complaint of a breachof privilege in his own per- 
 fon, and the Chancellor of the Exchequer's having like- 
 wife a meilage from the King to communicate to the 
 Houfe concerning privilege j a great commoner immedi- 
 ately faid, " this matter can admit of no difpute, and I 
 *' fancy I don't hear well ; the exiflence of the freedon\ 
 *' of a Houfe of Commons depends .upon privilege.- ^ 
 
 " oicflagQ
 
 ( 97 > 
 
 ** mefiage jfrom the King of a breach of Privilege! 
 ** Strange words I It cannot be fo ; it may be of fome- 
 *' what relating to Privilege." A Gentleman in the con>- 
 pany thereupon bethought himfelf of faying it was ufual, 
 in order to give a certain commencement to a fefTion, ta 
 read a bill ; and that for this reafon, the Clerk always pre- 
 pared one accordingly. This gave room for a complaifant 
 lawyer immediately to throw in, that this was certainly 
 neceflary, as all ads of parliament, having no certain" 
 day named therein, were in force from the beginning of 
 theSeffion, and that my Lord Coke had fa id fo. 7'he re- 
 fpect of us all for this conciliating Gentleman's opinion, 
 at that time, made us acquiefce in what he faid. How- 
 ever, I then thought it a very ftrange reafon, 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 ours, merely with an intention of hav- 
 ing them reported to his advantage in one particular place. 
 But, if he did, as it was a mixed company, and no fecrecy 
 neceflary, I have a right to tell the world the ftory ; and 
 yet I wifti, with all my heart, that his civility may not 
 be thrown away, nor the courtlinefs of his difpofition long 
 lie unheeded. As to the thing itfelf, it muft ftiikc any plain 
 man that the beginning of a fefiion becomes as certain 
 and notorious from the King's coming to theHoufe, fend- 
 ing for his Commons, and his fpeech, which all appear ill 
 the printed proceedings of the Commons, with the day 
 prefixed in latin, as it is pofllble. This is fomething real ; 
 whereas the bill prepared by the clerk is nothing, for it is 
 never pafied into an al, nor heard of afterwards ; and it 
 is only made ufe of as a mere type or fymbol, to keep a- 
 live the right which the Commons claim of going upon 
 their own bufincfs before they go upon that which is point' 
 ed out to them by the King in his fpeech, having in fadt 
 generally none of their own that is ready time enough for 
 the purpofe. Now, nothing in the world could have been 
 a ftrongcr proof of thecxercifc 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 
 ffpeciallv, if there iliould be not only a doubt, but a cer- 
 tainty.
 
 tainty, that his was firft moved. Upon the princfple that 
 privilege is to take place of every thing elfe, nothing is of 
 fo much confequence to the community, as the relief of 
 its reprefentativcs, from an unjuft violence ; they cannot 
 do their duty as a parliament without it ; for the parlia- 
 ment canriot be free, every county, city and borough 
 cannot have its deputy prefent without it ; and for this 
 reafon one would imagine this ftiould be their firft bufi- 
 nefs, which being printed and appearing in the votes, 
 would render the commencement of the feilion as remark- 
 able and certain, as the reading of any bill whatever. With 
 refpeft to my Lord Coke, I have a notion he fays only, 
 that *' when a parliament is called and does not fit, and is 
 *' dilTolved without any at of parliament paffed or judg- 
 *' ment given, it is no fcflion of parliament, but a con- 
 ** vention ;" wherein is not one word touching the ne- 
 ceiTity of reading a bill to give a certain commencement 
 to a feflion, and, indeed,"! think he could never fay fo 
 filly a thing i for I do not fee how That marks a com- 
 mencement more than any motion made or refolution 
 come to ; and if the palTage above quoted be what is 
 meant, it is of a cafe which does not at all apply to the 
 prefent queftion, becaufe it fuppofes a cafe where no aft 
 at all is paffed or judgment given ; and no man on this 
 fide of St. George's channel thinks of inquiring after the 
 commencement of an aft that never exifted, as a matter 
 rieceflary for the courts of jufticc to know. Moreover, 
 the title of all afts printed, exprefles the time of the com- 
 mencement of the feiEon when they paffed. But, I have 
 frequently remarked, that where a defire of pleafing others, 
 operates more flrongly than the defire of doing what is 
 right, men even of decency and circumfpeftion will flip 
 into ftrange abfurdities now and then. They will betray 
 the true bottom of their conduft, when they leafl intend it. 
 No training or education will enable a little mind intirely 
 to hide its littlenefs from the eye of an attentive obferver. 
 In fhort, a man may advance fuch a pofition, by way 
 of compliment, altho' it be fomewhat at the expence of 
 bis underflanding or his fincerity ; and it would not be 
 worthy any ferious attention, v/ere it not a little charac- 
 teriflic, not only of the perfon, but of the times, when 
 fuch things can pafs for reafons. Too much refpeft can- 
 not be fliewn to the Crown by any man, as an individual ; 
 
 but.
 
 (99) 
 
 but, it ill fuits with the duty of repreferttatives of thi 
 people to be fwayed, by any motives of perfonal refpea, 
 to part with a jot of their own independency and dignity, in 
 their corporate capacity. ' In truth, I fuppofe, no inftance 
 of the kind ever happened in our Houfe of Commons, or 
 ever will. I do not, however, mean to fay,, that men 
 who advance fuch dodlriiies may not be of ufe about a 
 Court ; but, being formed in a prerogative mould, they 
 ^an never be brought to aft fairly by the people, let the 
 ground be ever fo good ; for they cannot find in their 
 hearts to fpealc what" may be capable of the leaft interpre- 
 tation to their difadvantage, and every now and then will 
 drop fuch expreiTions of candor and moderation, and fo 
 qualify what they fay, for the fake of being civilly report- 
 ed elfcwhere, that they enervate all oppofition, and by 
 their fupplenefs frequently lofe fome great point of liberty, 
 that might otherwife be obtained for the public. Being an 
 old fellow, and recalling to mind the other guife fpirits 
 that ftruggled firfl: for an exclufion bill, and when that 
 proved impraaicable, ftillwenton, and, at laft, brought 
 about the glorious revolution ; I fancy I hear old Britannia 
 call out to thefe tame, temporizing fpirits, thefe fcholars 
 of mere worldly caution and oeconomy, thefe Hanoverian 
 tories : You do me more harm than good upon every real 
 trial ; your parts are not extraordinary, nor your learning 
 fingular ; your fpeech is long, but neither forcible or per- 
 fuSive, and you have not a grain of true patriotic refolu- 
 tion : " Law in fuch mouths is, in fad, like a fword in 
 *' the hand of a lady, the fword may be there, but, 
 " when it comes to cut, it is perfedly aukward and ufe- 
 *' lefs j" depart in peace, leave me to myfelf, and re^ 
 turn from whence you came ; I never afked your afliftance, 
 and had been better without it, 
 
 Non tali auxiUot nee defenforibus ijlis 
 Tempus eget, 
 
 A man may in truth, write moderately and meritori' 
 oufly, in behalf of the government, enforcing new laws of 
 forfeiture on the fubjea, who never will, no more than 
 any of his name, fummon up fpirit enough to fpeak plain- 
 ly and boldly, at the hazard of his intereft, let liberty in 
 genera! be ever fo much concerned, or his own fortune be 
 
 ver fo great, or his expectancies ever fo vaft. 
 
 There
 
 ( loo ) 
 
 There is of late fuch a lack of what are called publle 
 men, that I am perfuaded there are many gentlemen who 
 would deem Locke on government a libel, were it now 
 puSliftied for the firft time, inftead of being reprinted. 
 The Tory dodrines feem to be eftablifhing themfelves every 
 day ; and Tories fpring up every hour, like toadftools in 
 the root of an old oak, that is fprinkled by accident with 
 a little water. I remember to have heard a Scotch Lord, 
 who piques himfelf too upon law, and who had a brother 
 that was high in the profeflion, declare, before a great af- 
 fcmbly, that His Majefty held his crown as free- as any 
 of his anceftors ; for every body knew that the laws pafTed 
 at the revolution, were the adls of heat and violence, 
 and party, and to be regarded accordingly. Whereas, if 
 thefe acts were once fet afide, and thofe palTed in confe- 
 quenceof them, His Majefty would have no title at all to 
 the throne that he now fills, fo much for the benefit of us 
 all. I really Ihall not wonder in a little time, to hear 
 hereditary right talked of again, and then it is but one 
 ftep more to the old do<Slrine of jus divinum, and paflive 
 obedience. Now, I chufe to have his Majefty's throne 
 remain fixed upon its only folid or durable foundation, art 
 a6t of parliament. 1 defire to fteer through the temperate 
 and eafy channel of a legal conftitution, and a limited 
 monarchy j without being demolin-ied on one fide by ar- 
 bitrary prerogative, or perpetually agitated on the other 
 by the tumult and fadion of a popular and republican 
 ftate. I am jealous, I confefs, of all innovations, and hear- 
 tily wifh the prefent conftitution may laft 3 without going 
 fo far as a late great financier, who is reported in his very laft 
 moments to have faid, *' for God's fake, let my fon 
 *' have a tutor who is a gentleman and a fcholar, and 
 '* above all things a true Whig : This poor country, I am 
 *' afraid, will be over-run with Tories, Scotfmen and 
 '* Jacobites." Now, altho' I am perfuaded that gentle- 
 men of the laftdefcription, IhoulJ they change their idol, 
 yet will never quit idolatry itfelf, but transfer their pro- 
 ftrate worfhip, and implicit adoration, to the golden image 
 they adopt ; yet I fear them not, in this kingdom, at leaft, 
 under the prefent Sovereign, who is by all men moft juftlj^ 
 eftee;Tied for the excellence both of his public and private 
 charader in war and peace. 
 
 Gf
 
 ( 101 ) 
 
 Of this, however, I think every Englifhman may be 
 aflured, that the two real pillars of our conftitution are 
 Parliaments and Juries, and that, in order to be what 
 thev ought to be, the former muft be independent of the 
 Crown, and the latter of the Judges, let the privileges 
 be what they will that are requifitc for this. 
 
 With refpect to men, I have as bad an opinion of many 
 that are out, as any body can have of the motly aflots 
 that are in ; but whenever the Crown-patentec, or Mafter 
 of the Theatre, fhall fubflittite other performers, I hope 
 fome difinterefted men will lay hold of the occafion for 
 making fome refolutions, and perhaps fome laws, that will 
 be a fecurity upon record for men much younger than my- 
 felf, and for all our pofterity. 1 have thrown out my 
 loofe thoughts from a true conftitutional regard for his 
 Majefty, whofe crown can never fit eafy when his people 
 are difcontented ; and if, where all men allow the grie- 
 vance, no remedy is applied, 1 am really afraid that the 
 time may come, which a great orator once painted, when, 
 bis Majefty will not be able to fleep at St. James's for the 
 cries of his injured people. I proteft that my neighbours 
 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 pradtifed againft Wilkes (a fad 
 debauched dog that ufed his wife ill'tistrue) may be prac^i- 
 fcd again ft us? Pray, Sir, what a:l vantage is there that 
 art, treachery or power could either invent, purchafe or 
 command, which has not been ftrained to the utmoft, in 
 order, as it feems, to compafs indecifion only, and that in a 
 very plain matter, of univerfal confcquence ? We none of 
 us now know any more of the law aboat libels, warrants 
 and commitments, than we did before j 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 
 o many diftindlions made, that we arc never the wifer fo 
 what we read ; if we could fee but a fhort refolutiore 
 in the printed votes of Parliament, we fliould all of u* 
 know what to think upon the fubje<St i but great men are 
 taken up with their party difputes, and never confider u 
 common tradefmen and inferior gentry at all. To which 
 I can only (ay, that they muft: not fo foon lofe their pati- 
 ence : cvtry thing, I make no doubt, will be properly fettled 
 
 O by
 
 (.102 ) 
 
 by and by, (even the High Stewardfhip of Cambridge.) 
 I have be^rd that the Attorney General fhould fay, he was 
 in hopes of having a folemn determination, not long' firft, 
 Upon thefe verv points in fome of the great courts of law, 
 perhaps from Lord Alansfield j atid that I thought it was 
 very probable the Parliament would refume the confidera- 
 tion of the fame matter, and come to fome fatisfadlory re- 
 iblution thereupon ; that the Miniilry oppcfed fuch a re- 
 folution the laft feflion, becaufe, perhaps, they might be 
 glad to have a little more time to underftand the matter ; 
 they might not, perchance, be men of very ready parts or 
 quick genius, and they were too honeft to decide any 
 thing before they underftood it ; and that their having voted 
 for the putting it ofF merely for four months, had the ap- 
 pearance of the utmoft moderation ; they had, befides, 
 many weighty affairs in hand, and might poilibly be a 
 little prolix ia their nature ; but I was fure they meant 
 well, and had great reafon to believe that they thought as the 
 refl of the world did ; in fhort, that there was no room yet 
 for people murmuring, ic was not quite two years ago 
 fince the principal affair had happened, which was nothing 
 at all in matters of law. 
 
 The Attorney, indeed, gives another turn to the m^ter, 
 but I had not read his pamphlet when I made this anfvver 
 to my neighbours. He fays, that he really does not thinfe 
 the matter of much confequence ; he allows the people, itv 
 general, were very uneafy and alarmed ; but then he de- 
 clares, that, till he had informed himfelf better, he '* ex- 
 *' pedled to hear a regular fyftem laid open, by which an 
 ** arbitrary adrpiniftration had endeavoured to overthrow 
 '* the bulwark of our liberties, that the privileges sf Par- 
 * liament had been daringly violated ; that fome innova- 
 ** tions had been attempted to annihilate M((gna Chnrta, 
 *' the Habeas Corpus^ or fome other piiiar of theoonrti-r 
 ** tution ; in (hort, that fome man had been opprefTed by 
 ** arbitrary violence, tyranny, and perfccution." (His 
 Itepreilion indeed is, innocent man, but I have left out 
 jhat word as perfe(9:ly unneceflary, becaufe a guilty man in 
 this country is not to be knocked on the head, or tumbled 
 into the river in a fack, before he be proved guilty by due 
 courfe of law, and then he is only to be executed as th 
 Judgment of the law fhall diredt j for, the putting of any 
 one to death, without the intervention or fandtion of law, 
 will be, at any time^ and in any nwn who does itj 0'way, 
 
 arbi'
 
 ( 103 ) 
 
 arl)iffary violence, znd murder.) Now, I fieed /ay nothing 
 more to the Attorney upon the cafe of the rtian he points 
 to, than I have done already, but, as to the other parts 
 of law which he mentions, I will very frankly avow to 
 him, that I think them verv capital rights of an Englifli- 
 man ; and he may fee that I have treated them as fuch, 
 and confidered thclii as very materially interefted, even 
 in the cafe of the very man we have beenconverfing about. 
 However, to oblige him, I will tell him fome few of my 
 thoughts upon thefe and fome other legal points, for him to 
 think of by himfelf, or, if he pleafes, to talk over with 
 his fuperior ; altho' I Ihall only touch them (lightly in 
 parting, and not launch out into ail that the fubjeil or the 
 times fuggeft to my mind. 
 
 I have ever regarded the Habeas Corpus, both at Com- 
 mon law and under the i.<t of Charles the Second, as the 
 great remedial writs for the delivery of a freeman from 
 unjuft imprifonment, either 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 flate to make a fallacious and inadequate 
 return, by faying the prifoner was Not in his cujiodj, when 
 in 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 dofe confinement, where no perfon could after- 
 wards poffibly get at him, in order to ground an applica- 
 tion for a fecond Habeas Corpus ; I fhould hope to fee 
 the vengeance of parliament, fo foon as the fa6t 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 
 juftic e, and a mort audacious perveriion of the great law 
 of Habeas Corpus, and make the fame the ground-work 
 for a new declaratory and explanatory aft, compelling the 
 man who was ferved with the writ, to fct forth what he 
 "had done xvich a prifoner, or wliat was become of him, 
 if he had at any time been in bis cuftody, and happened ntft 
 to be f<> at the time that the writ was ferved upon him ; 
 and likewife compelling a Judge (as fome fort of remedy 
 againft ckje confinement) to award a Habeas Corpus upon 
 ihe fugii,cition or motion of any man, who ftould only 
 fay, that he believed his friend might be- fhut up in fuch a 
 place, and that it was impoflible for him to have admiflion 
 to ascertain the fat^t himfelf- Indeed, it ftrikes me that 
 
 O 2 fuch
 
 ( 104 ) 
 
 ^fuch a return as that before dated, is falfe and untrue, be- 
 
 ^^aufe, whether I keep a man myfelf, or fend him to anv 
 
 "other pcrfon to keep, the Law muft confider him as ftill in 
 
 my cuftody, qui facit per alterum^ faclt per fe. 
 
 I hope we {hall never fee any Chief Juftice, efpecially in 
 that great Court of criminal procefs, the King's Bench, who 
 fliall deny, or delay, the ifluing one of thefe writs to any 
 man who applies for it, being a writ of right to which 
 'the fubjecSl is intitled for afking, without any affidavit 
 whatfoever. In many cafes, as, for example, in that of 
 'clofe confinement, it may be impoflible for the party either 
 to fpeak to a friend, fend a letter, or make an affidavit, 
 and confequently, if either be required by the court, it 
 *-wiir be a virtual denial of the writ, and a means of de- 
 feating the Habeas Corpus a^. The requifition of an af- 
 Adavit puts it likewife in the power of a Judge toobje6l to 
 its form or contents, and to fay the fame is not ful^ 
 enough ; and yet, before another can be had, the party 
 guilty of the violence, upon being apprized of what has 
 palled, may, by means of this delay, remove the prifoner 
 to fome other place, or (huffle him into fome other hands, 
 nay, hurry him into a fhip and carry him to theEaft or 
 'Weft Indies, and then all attempt for redrefs xvill come 
 too late, and be in vain. An application to the King's 
 Bench for an Habeas Corpus in term-time, ufed to be 
 eftecmed, I remember, a mere motion of courfe. " Our 
 *' inheritance is right of procefs of the law, as well as in 
 *' judgment of the law.'* 
 
 It would, however, be more injurious to liberty, to 
 'have any Chief Juftice, contrary to the prad^ice of his 
 predccefTors, narrow the great remedial a6l of Charles the 
 2d, to t'lc fmglecafe of a commitment to prifon, or re- 
 (Iraint by a legal officer, for criminal or fuppofed criminal 
 matter ; To that if I was reilrained of my liberty, without 
 the charge of anv crime, by a man not pretending any 
 authority of law fur what he did, Ifliould be without any 
 immediate redrefs, if fuch reftraint happened in the vaca- 
 tion-time. As for inftance, if I was taken up by a Set'- 
 jeant of the Guards with a file of foldiers, on a verbal or- 
 der from a Lordy Groom or Page of the Bed-chamber, 
 without any caufe aiTigned, and hurried away to the Sa- 
 voy, or to a fhip at ti.eNore. 
 
 The condition of the fubje<3: would be ftill worfe, if 
 any Chief Jufticc, inftead of granting the writ prayed 
 
 for.
 
 ( 105 ) 
 for, (hould force the party into the taking of a riHe 
 upon the imprifoner, to (hew caufe why he detained 
 the perfon imprifoned ; and this laft miferable remedy 
 would Itiil be rendered lefs adequate, if the perfon ap- 
 plying was obliged to give notice of fuch rule to the Soli- 
 citor of the Treafury, as well '^s to the perfon in whofe 
 cuftody he was, and alfo to thofe who put him there ; 
 and even this again would be fiill made more grie- 
 vous, tedious and precarious, if the Judge ftiould be cri- 
 tical upon the affidavits of the fervice of notice, and be 
 extremely rigid in its being moft punctually fet forth, 
 in every the minuteft circumftance. What a noble field 
 for delay, evafion and final difappolntment, would this 
 open to every committer of violence ; and how eafy 
 would it be, in the mean time, to dodge the man im- 
 prifoned from place to place, and from hand to hand, 
 fo as to render it utterly impracticable for any friend to 
 procure his enlargement. A bold and daring minifter, 
 might thus eafily tranfport a troublefome prating fellow, 
 to either India, long before any caufe could be (hewn up- 
 on fuch a rule. I am informed, that a freeholder, pref- 
 fed for a foldier under a temporary ait of parliament, was 
 two years obtaining his liberty under one of thefe rules; 
 altho' he did his utmolt 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 a- 
 broad, I do not fee how he could have had any relief, 
 until the end of the war, before v^-hich he might have 
 died of difeafes,or been knocked on thehead by theenemy. 
 But it would be even ftill much worfe, if any 
 Judge fhould abfolutely refufe to grant an attachment for 
 difobedieiice to a writ of Habeas Corpus ilUied in the vaca- 
 tion, in lieu thereof direct another writ to be taken out, 
 and fhould entertain doubts for weeks together, th;it a Peer 
 was privileged from being attached by the Khig's Bench 
 for difobeying their writ, treating the court with opprobi- 
 ous language, and threatenmg to flioot the perfon who 
 executed it, if he did not withdraw from his prefence j 
 *' let the Judges touch him if they dare, perhaps he 
 *' might by and bye write a letter to them ?" and if the 
 Houfe of Lords (hould be acquainted tlicreaf, and intirely 
 renounce any cUim to privilege in fuch .cafe, .the fame 
 
 . J<idgc
 
 C to6 ) 
 
 Judge ftiould only then order a third writ of Habeas Cof* 
 pus to be taken out, and with very great difficulty be pre- 
 vailed upon to let an attachment accompany Thatj and not 
 without giving particular dire^ions, that fuch attachment 
 (hould not be executed until every Other means of obtain- 
 ing a compliance with the faid third writ proved ineffec- 
 tual, for the court would tlike notice of the perfon who 
 (hould otherways prcfyme fo to do; declaring withajl, 
 that the only reafon for granting the ittachnieTit even then 
 was, the near expiration of the term and the want of au^ 
 thority in a Judge to award any in the vacation, and there- 
 fore it was neceflary to enforce this writ by a more expe- 
 ditious method than Habeas Corpus's before the ftatute 
 ufed to be, or than the words of the ftatute itfelf feemed 
 to require. 
 
 What would the Attorney fay, if any Chief Juftice in 
 concert with an Attorney Genetal, at the requeft of a 
 (brcign EmbafTador, fhould fend a verbal order for detain- 
 ing a man twenty-fotjr hburs, and for feizing his papers* 
 i>ecaufc he was printing fomething which his Excellency 
 did not like ; and there fhould never afterwards be any 
 warrant granted, information filed, or profecution intend' 
 cd ; thefole end of the Embaflador being anfwered by get- 
 ting pofTeflion of the papers ? 
 
 Or, if the legiflature, after a violent oppofition in the 
 Commons had palled an arirtocratical at, to prevent un- 
 equal matches, that is, to hinder property as much as po(^ 
 fible from difFufing, by rcrKlering all marriage between 
 people under age impracticable, unlefs upon certain con- 
 ditions ; contrary to the principles of love, liberty, po- 
 pulation and commerce, which all require, that as littl* 
 Tcftraint fhould be laid upon matrimonial connections or 
 property as pofTible ; aChief Juftice was to endeavour to 
 carry fuch adl farther than the legiflature had done, and t* 
 extend its regulations to a country not named within it, 
 to the difqiiiet of many people who had fled thither for the 
 keneficial purpofe of lawful marriage, according to their 
 own inclinations ; by throwing out his fentiments from 
 the bench, in disfavour of the validity of fuch marriages, 
 extrajudicially, no match celebrated in that way having 
 ever come in judgment before him ? 
 
 Or, if any foreign foldier in this kingdom fhould be. 
 committed for felony, a lawyer in the fervice of the crowu 
 fhould be confulted thereupon, . and he fhould advife a 
 Secretary qf State that be might, by letter in his Majefty's 
 
 name.
 
 ( 107 ) 
 
 ftame, lawfully order the Mayor of the town, in whofe 
 prifon fuch felon was, to difcharge him without bail or 
 mainprize, or even the confent or knowledge of the pro- 
 fecutor, in order to prevent thereby the foldier from being 
 tried by our laws for fuch felony ? 
 
 Or, if any Chief Juftice, contrary to the ufage of 
 Judges, who are to have no ears for any thing that is to 
 come in judgment before them, until the fame is brought 
 on judicially, Ihould, weeks before any crown trial, of- 
 ficioufly fend for the proceedings, to fee whether they were 
 legal, and, upon difcovering an error on the profecutor's 
 fide, fhould fumnion the Attorney of the other fide, and 
 tell him he muft confent to the fetting right of this error, 
 to the end that the tenor of the. pleading might be fuch as 
 judgment could be pronounced upon ; and, notwithftand- 
 ing the Attorney (houid protect he could not confent 
 thereto upon the account of his client, and that the fame 
 was a criniinal profecution, and that fuch alteration of 
 the record was not warranted by any adjudged precedent ; 
 (hould neverthelefs arbirrarilydireil it to be done, without 
 cither having the point debated before himfelf by council, 
 pr brought on before the whole court for their opinion j 
 ^nd that the defendant, being found guilty by the Jury, 
 Ihould be deprived, by fuch amendment, of taking advan- 
 tage of the error aforefaid, in arreft of judgment, whict^i 
 lie might oihcrwife have done, and the fame would have 
 .been fatal to the profccutor? 
 
 Or, if any Chief Juftice, notwithftanding the maxim 
 forementioned, (hould make it a pra(5tice to fend for At- 
 tornies, and talk to them privately about their caufes, and 
 ^ven i:;ead the briefs in them, in order to fee fuch fecrets 
 of caufes as are only confided to council, to be managed 
 as they fhall think proper, and by that means Should fre- 
 quently come into the court with a bias upon his miilri ? 
 
 Or, if a Chief Juftice fhould tell a Secretary of State, 
 for him to tell a foreign Minifter, that he need not be un- 
 fafy about fuch a particular man, for the term would come 
 within three weeks, and that then he fliould be able to 
 givejudgmentagainft the man, (a libeller convidl) and that 
 he intended to fet afineof50ol. upon him, and tofentencc 
 him to two years imprifonment befides, if he did not make 
 off; and that if he did, there would then be a riddance of 
 him that way j fo that his Excellency might be perfe(^ly 
 eafv abqut him in all events ? 
 
 Of
 
 Or, if any Chief Juftice, with a vieW to the introducfng 
 a fpirit of arbitrary and difcretionary determination in 
 courts of law, under a fpecious pretence of equity, fhould 
 from the feat of juftice declare he defired to hear of n& 
 cafe that was determined above 50 years ago. 
 
 Or, if any Chief Juftice fliouKl, by folemn but unne- 
 ceflary givings out from the Bench, endeavour to blaft 
 the repute of Juries with mankind, by pronouncing that 
 the trial by jury would be the very worft of all, were it 
 not for the controuling power of judges, by the award of 
 new trials and the reconfideration of verdi<Sts, and that, 
 indeed, it could never have fubfifted had it not been for 
 Aich controll, by reafon of the want of capacity in jurors, 
 and the changes of thetimes. 
 
 Or, if any Chief Juftice fhould arbitrarily order a Ju* 
 ror to be fet afide, without any caufe of challenge, and 
 forbid his being ever put upon another panel, only bccaufe 
 fuch Juror had withftood his diredlory opinion in a former 
 trial upon a matter of fat, whereof, by his oath, he was 
 to form his own judgment* ? 
 
 Or, if any Chief Juftice fhould arrogate to himfelf at iV//? 
 Prius^ the feparate provinces of Judge, Council, and Jury, 
 by cutting Ihort the one, and impofing his own fenfe of 
 things upon the other, and, if upon any occafion a verdidl 
 contrary thereto, was perfifted in to the laft, (hould im- 
 perioufly and unconftitutionally demand of the jurors their 
 reafons for the fame ? 
 
 Or, if any Law-Privy-Counfellor fhould, by way of 
 introducing an arbitrary government in the plantations, 
 lay it down to Counfel as a principle, that Engli^ fettlers, 
 by going from hence to people American colonies, thereby 
 }oft the privileges of Engliftimen, and the benefit of the 
 Englijh common law, and were to be governed ever after 
 hy the charter of the King, and by prerogative, without 
 the intervention even of a Brit'ijh parliament, and that 
 the board would judge them accordingly ? 
 
 I fay, if my of thefe things fhould happen, I fhould in 
 my turn " be glad to know" what the Attorney, as a 
 
 In the reign of " Alfred, one Juftice Cadivine was hinged, bccaufe he 
 " judged one Hackwy to death without the confent of all the Jurors ; for 
 ** whereas he ftood upon his Jur)- of twelve men, becaufe three of them 
 *' wold have faved him, this Cadivine removed thofe three, and put others 
 " in their room on the Jury, againft the faid Hackwy'i wnfent." Horn's 
 Mirrtr *f JuJiUes, 
 
 Lawyer,
 
 ( 1^9 ) 
 
 Lawyer, would fay to them ? I will tell him vefy faiily, 
 that from fuch premifes, I think, old as I am, I could 
 draw up a ftrong fet of articles : For, what m a common 
 mm is a breach of the law, is alfo a breach of truft m a 
 Tudcre ; and where he obftruas jufticc and changes the law, 
 it is^treafon at common law. It would, mdeed, be very 
 unhappy for the fubjeds of this country, if there were a 
 man to whom anv one of thefe things were applicable; 
 and the Lord have mercy upon the nation, if a time 
 ihould ever come, when they fhall all center 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, 
 havina tried an old gentleman for perjury, where there 
 were '""four pofitive vvitnefles for the profecutor, to the 
 words being fpoken which were charged, and winch were 
 probable in the nature of the cafe, and four witnelTes for 
 the defendant; in fliort, his followers, who fwore that 
 they v/ere very near their mafter, and muft have heard 
 the words, had they been fpoken, and they heard 
 them not ; and that the Judge thereupon found it ne- 
 ceffary to labour to the Jury the charaaer and fortune 
 of the defendant, ^nd 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 ' 
 hefitation and doubt, the Jury at laft acquitted the defend- 
 dant I fay, after fuch an acquittal, what would one think 
 of a Jud^e, who fhould, in a public afTembly, wantonly 
 tnd unne'cefiarily mention this cafe, and declare there was 
 not the leaft colour or pretence for the profecution ? What 
 the Attorney may fay, I know not, but I am fure, tor 
 my own part, I would never afterwards give fuch Judge 
 any credit for any faft he ftiould advance upon his own 
 teftimony only, however glad I might be to hear his reafon- 
 ine upon any fubjeft whatever. . . , j 
 
 It is the prefervation of the conftitution in its due order 
 which muft continue us freemen ; nothing elfe can. And 
 whilft our laws continue unprofaned, lawyers will ot 
 courfe be confiderable, their profefHon honorable. 13ut 
 when civil liberty dies, by foreign or domeihc invafion, the 
 vocation of a lawyer will foon become equally mean a- 
 monfr us, to what it adually is now in all foreign countries, 
 where the monarch by the fword and the army lays down 
 his will for law, and breaks through the forms of court* 
 and their rules of juftice whenever he pleafes. The true 
 
 p Ian-
 
 language in this country is that of a late famous" minlfler, 
 who faid he would have it be known throughout his Ma- 
 jefty's dominions, that all men wereftill to be fubordinatc 
 to the civil power. For which rcafon no greater misfortune 
 can befal a nation than to have a verfatile, temporizing, 
 unprincipled Grand Judiciary, nor any more general blef- 
 fing than an able, uniform, firm and incorruptible Chief 
 Juftice. What therefore muft be the weaknefs or the 
 thoughtlefsnefsof any minifter, who fhould endeavour, in 
 public difcourfe, to lefl'en the reverence of every Englifh- 
 man towards Judges in general, by treating the moft fo- 
 lemn adjudication of a fuprerae court of law, delivered 
 upon oath, as he would the profligate proceedings or a- 
 bandoned votes of a motley crew of unfworn and igno- 
 rant eledllon-mcn ? or who (hould wantonly, in a great 
 and ceremonious aiTembly, dart a vulgar idea that tended 
 to degrade any one of their judicial determinations to a 
 hve] with the fcoundrelly converfation of the liverymen of 
 Peers ? I will venture to fay, that by debafing the reve- 
 rend Judges, you tend to raife a contempt for all civil go- 
 vernment; and when the veneration for Judges and Laws 
 fhall once fall to the ground, neither Juries nor Parliament* 
 will long furvive, but they v/ill all be delivered up to the 
 mere difcretion of the Prince, who will foon find it much 
 eafier and fhorter to govern by his own will and pleafure, 
 that is, by a privy-council and a Handing army, and thus 
 levy, without doubts or difficulties, whatever money, or 
 execute whatever orders, he (hall in his wifdom prefcribe. 
 One principal drift, therefore, of this my letter, is to let 
 mankind fee, from fadls, who are, and who have been, 
 when in power, in their feveral departments, the defen- 
 ders of this noble and antient conftitution, and who the 
 pcrverters, violators, and impugners, of the civil rights, 
 laws and privileges, both of the people and their reprefen- 
 tatives. The goodnefs of his prefent Majefty will prevent 
 any great exce^ in his time, altho' the laws fliould be fo 
 proftrated as to render it practicable without punifhment ^ 
 but, who can anfwer for his fucceflbrs ? It will not be 
 difficult, when once the law can be rendered fubfervient 
 to a Miniftry, for any cunning and felfifh Prince to find 
 out a Solicitor for his Treafury, an Attorney .General for 
 himfelf, and a Chief Juftice for England, who fhall de- 
 vife means for grinding the face of the fubjec^s, UiUU the/ 
 (hftll all be ground unto powder. 
 
 It
 
 Cm) 
 
 It Is an inglorious, adinieartenihg, and a difadvantageous 
 thing, to have a fuccefsful war followed by an inadequate 
 r infecure peace; but, the prefervation of conqnefts is not, 
 by any means, of fo home a concern to any common- 
 wealth, as the prefervation of its conftitution. Breaches 
 of the latter, are the moft melancholy and fatal forerun- 
 ners of abfolute flavcrv and ruin. And nothing can aggra- 
 vate the mifery of fuch a view, but to fee the fame men 
 the invaders of domeftic liberty, who have been the ceders 
 of foreign acquifitions. 
 
 The Attorney himfelf has forced mc to thefc re- 
 fle<Sions, for he concludes withintimating, that we are 
 *' threatened with evils, which our united ftrength can 
 *' fcarce avert ;'* by which he muft mean another war. 
 Now, if this be fo, I am heartily forry for it, from the 
 bottom of my foul, and do therefore moft fincerely concur 
 
 with him in afking " In this fituation, is it f 
 
 *' time for private jealoufies and private interefts to 
 ** confume the interval that peace affords us I To fow the 
 *' feeds of diffidence, to revive the diftin^ions of party, 
 " and wantonly to found the alarm of privilege find pre- 
 " rogative?" In my confcience it is not, and what mini- 
 fters can mean by fo doing, if they really intend the fer- 
 vice of their royal mafter, I cannot conceive. I vow to 
 God I am aftonifhed at it I 
 
 Nor fhould I have thought of faying one half fo much 
 upon the fubjecls 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, " a plot and pradice, to alter and fubvert. 
 *' the frame and fabric of this Commonwealth. He la- 
 ** hours to infufe into the confcience of his Majefty, the 
 ** perfuafion of a power not bounding itfelf with lawjr. He 
 '* endeavours to perfuade the confcience of the fubjecls, 
 *' that they are bound to obey commands illegal." 
 
 I will now take a final leave of the Attorney, having 
 had proof enough of his fairnefs in argument, and his mo- 
 defty in aflertion j but, fince he has talked fo much of 
 our dlftrefTed fituation, both foreign and domeftic, and of 
 the Houfe of Commons, I will apply to the prcfent fub- 
 je(3, what a great man , a Tory too, faid on another 
 occafion, with a change of three words only. 
 
 " SlRy 
 
 Sir William Wvndham, father of ikf Tate E.of Egremont, and of 
 Mr, Crg CrcQvilki aa<i CbajKUor of the Euhei^ufr for die T-
 
 ( tl2 ) 
 
 " SIR, In all the variety of company I have kept, I have 
 ** never heard a fingle man without doors pretend to juftify 
 ** thismeafure ; and when the fentiments of particulars were 
 ** fuch, I did not expedt, when they were met together 
 *' in a body, to fee a majority vote for it. This muft be 
 * owing to one of tliefe caufes : either gentlemen were 
 ** convinced by the arguments made ufe of in the Houfe 
 *' for juftifying this meafure, or there are other methods 
 " of convincing befides rcafon. I am not at liberty to 
 " fuppofe it the latter, therefore I muft fuppofe it the for- 
 '* mer. But this, Sir, is to me a very melancholy confide- 
 ** ration ; for, tho' I have attended with the utmoft regard 
 " to all that has been faid upon this meafure, I have not 
 * heard a fingle argument in its favour, that has had the 
 * leaft weight with me. I muft now conclude that I do 
 ' not underftand reafon when I hear it, therefore I am 
 * refolved to retire. However, I muft beg gentlemen 
 ** to confider the confequences. This adjournment is in- 
 " tended to convince mankind, that the meafure nowun- 
 " der confideration is a reafonable and an honourable mea- 
 " fure for this nation j but if a majority of fourteen, in 
 *' fuch a full Houfe, fliould fail of that fuccefs; if the 
 " people fhould not implicitly refign their reafon to a vote 
 " of this Houfe, what will be the confequence ? Will 
 '* net the Parliament lofe its authority ? Will it not be 
 '* thought that, even in Parliament, we are governed by 
 '' a fadtioft ? For my own part, I will trouble you no 
 " more, but with thefe my laft words, " I fincerely pray 
 '* to Almighty God, who has fo often wonderfully pro- 
 ^* tested thefe kingdoms, that he will gracioufly continue 
 " his protedion over them, by preferving us from that 
 ^' impending danger which threatens the nation from 
 " without, and likewife that impending danger which 
 '* threatens our conftitution from within/* I am, Sir, 
 
 iVeJlmtnfier, The Father of Candor, 
 
 O^. 17, 1764. Libertas ^ NataU Solum. 
 
 lies under Queen Anne. He was committed to the Tower for high treaftm 
 in 1715, and delivered under the Habeas Corpus aft io 1716J and llis 
 cg'e under that ftatute was the great cafe urged in favour of Mr. WHJees, 
 when brought up by Habeas Corpus to the Common Pleas, in order to be de- 
 livered from a comiBitment to the Tower, by h^s fon, for a iiteJ, 
 
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