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1029] [1030The Case ofSeizure ofPapers. A. D. 1765.

ſº º,tº ºf ºn

-** sº.

sº

ºt

541. The Case of Seizure of Papers, being an Action of Trespass

.. . b y

John ENTIck, Clerk, against NATHAN CARRINGTON and three other Messengers in ordinary to the King, Court o

Common-Pleas, Mich. Term : 6 GeoRGE III. A. D. 1765. [ThisCase is given with the above-mentioned title; because the chief point adjudged was, That a warrant to search for and seize the papers o

the accused, in the case o f a se

ditious libel, is contrary to law. But this

was not the only question in the Case. All the other interesting subjects, which were

discussed in the immediately preceding Case,

except the question o f

General Warrants, were

also argued in the following one; and most

o f

them seem to have received a judicial opi mion from the Court.

The state o f

the case, with the arguments o f

the counsel, is taken fromMr. SerjeantWil son's Reports, 2Wils. 275. But instead o

his short note o f

the Judgment o f

the Court,

the Editor has the pleasing satisfaction to

present to the reader the Judgment itself a t

length, a s

delivered b y

the Lord Chief Jus tice o

the Common-Pleas fromwritten notes.

It was not without some difficulty, that the copy o

this Judgment was obtained b y

the

Editor. He has reason to believe, that the original, most excellent and most valuable a

it s

contents are, was not deemed worthy o f

preservation b y

it s author, but was actually

committed to the flames. Fortunately, the Editor remembered to have formerly seen a

copy o f

the Judgment in the hands o f a friend;

and upon application to him, it was imme diately obtained, with liberty to the Editor to

make use o f it at his discretion. Before,

however, h e presumed to consult his own

wishes in the use, the Editor took care to

convince himself, both that the copy was au thentic, and that the introduction o

f it into

this Collection would not give offence. In deed, a

s to theauthenticity o f

the Judgment,

except in sometrifling inaccuracies, the pro bable effect o f

careless transcribing, a first reading left the Editor's mind without a

doubt o n

the subject. But it was a respect

ful delicacy due to the noble lord b y

whom

the Judgment was delivered, not to publish

it ,

without first endeavouring to know, whe

ther such a step was likely to b e displeasing

to his lordship; and though from the want

o fany authority from him, the Editor ex

poses himself to some risk o f disapprobation,

yet his precautions toguard against it ,

with

the disinterestedness o f

his motives, will, h e

is confident, if ever it should become neces sary to explain the circumstances tohis lord ship, b

received a s a very adequate apology

for the liberty thus hazarded. Hargrave.]

IN trespass; the plaintiff declares Trespas, for

that thedefendants o n

the 11th day ſº- - nter ng plain o f

November in the year o f

our tº,

Lord 1762, a t

Westminster inMid- ** dlesex, with force and arms broke and entered the dwelling-house o

the plaintiff in the parish

o f

St. Dunstan, Stepney, and continued there four hours without his consent and against his will, and all that time disturbed him in the peaceable possession thereof, and broke open

the doors to the rooms, the locks, iron bars, &c. thereto affixed, and broke open the boxes, chests, drawers, &c. o

f the plaintiffin his house,

and broke the locks thereto affixed, and searched and examined all the rooms, &c. in his dwell ing-hôuse, and a

the boxes, &c. so broke open, and read over, pried into and examined

a ll

the private papers, books, &c. o f

the plaintiff there found, whereby the secret affairs, &c. of the plaintiff became wrongfully discovered and made public; and took and carried away 100 printed charts, 100 printed pamphlets, &c. &c.

o f

the plaintiff there found, and other 100 charts, &c. &c. took and carried away, to the damage o

the plaintiff 2,000l.

The defendants plead 1st, not special jet. guilty to the whole declaration, ſº whereupon issue is joined. 2dly, th

e cºul,

a s to the breaking and entering the **

dwelling-house, and continuing four hours,

and a ll

that time disturbing him in the pos session thereof, and breaking open the doors

to the rooms, and breaking open the boxes, chests, drawers, &c. o

the plaintiff in his house, and the searching and examining a

the rooms, &c. in his dwelling-house, and a ll

the boxes, &c. so broke open, and reading over, prying into, and examining the private papers, books, &c. o

the plaintiff there found,

and taking and carrying away the goods and chattels in the declaration firstmentioned there found, and also a

to taking and carrying away the goods and chattels in the declaration last mentioned, the defendants say, the plaintiff ought not to have his action against them, be cause they say, that before the supposed tres

1ó31] 6GEORGE III. [1032The Case ofSeizure ofPapers—

pass, on the 6th ofNovember 1762, and before, until, and all the time of the supposed trespass, the earl of Halifax was, and yet is one of the lords of the king's privy council, and one of his

|...}. secretaries of state, and that the earl

efore the trespass on the 6th of November 1762, made his warrant under his hand and seal directed to the defendants, by which the earl did in the king's name authorize and re quire the defendants, taking a constable to their assistance, to make strict and diligent search for the plaintiff, mentioned in the said warrant to be the author, or one concerned in the writ ing of several weekly very seditious papers, intitled, “The Monitor or British Freeholder, N° 357, 358. 360. 373. 376. 378. and 380, London, printed for J. Wilson and J. Fell in Paternoster-row,” containing gross and scan dalous reflections and invectives upon his ma jesty’s government, and upon both Houses of Parliament, and him the plaintiff having found, to seize and apprehend and bring together with his books and papers in safe custody before the earl of Halifax to be examined concerning the remisses, and further dealt with according to aw ; in the due execution whereof a

ll mayors, sheriffs, justices o

the peace, constables, and

a ll

other his majesty's officers civil and mili tary, and loving subjects, whom itmight con ceru,were to be aiding and assisting to them the defendants, a

there should b e

occasion.

And the defendants further say, that afterwards and before the trespass o

the same day and year, the warrant was delivered to them to be

executed, and thereupon they o n

the same day and year in the declaration, in the day time about eleven o'clock, being the said timeſ when, &c. b

virtue and for the execution o f

the said

warrant entered the plaintiff's dwelling-house,

theouter door thereof being then open, to search for and seize the plaintiff and his books and pa pers in order tobring him and them before the earl o

f Halifax, according to the warrant; and the defendants did then and there find the plaintiff, and seized and apprehended him, and did search for his books and papers in his house, and did necessarily search and examine the rooms therein, and also his boxes, chests, &c. there, in order to find and seize his books and papers, and tobring them along with the plain tiff before the said earl, according to thewar rant; and upon the said search did then in the said house find and seize the goods and chat tels o

the plaintiff in the declaration, and o n

the same day did carry the said books and pa pers to a house a

tWestminster, where the said earl then and long before transacted the busi mess o

his office, and delivered the same to

Lovel Stanhope, esq. who then was and yet is

a n

assistant to theearl in his office o f secretary

o f

state, to b e examined, and who was then au thorized to receive the same from them for that purpose, a s it was lawful for them to d o ; and the plaintiff afterwards (t

wit) o n

the 17th o f

November in the said year was discharged out

o f

their custody; and in searching for the hooks and papers o

the plaintiff th e

defendants

did necessarily read over, pry into, and examine the said private papers, books, &c. o

the plain tiff in the declaration mentioned then found in his house; and because a

the said time when,

&c. the said doors in the said house leading to

the rooms therein, and the said boxes, chests, &c. were shut and fastened so that the defen dants could not search and examine the said rooms, boxes, cliests, &c. they, for the neces sary searching and examining the same, did then necessarily break and force open the said doors, boxes, chests, &c. a

it was lawful for them to do; and on the said occasion the de fendants necessarily stayed in the house o

the plaintiff for the said four hours, and unavoid ably during that time disturbed him in the pos session thereof, they the defendants doing a

little damage to the plaintiff a s they possibly

could, which are the same breaking and en tering the house o

the plaintiff, &c. (and so

repeat the trespass covered b y

this plea) where

o f

the plaintiff above complains; and this, &c. wherefore they pray judgment, &c. The plaintiff replies to the plea o

f justifica tion above, that (as to the trespass represis, thereby covered) h

e b y

any thing ºria ºus

alledged b y

the defendants therein “” ought not to b

barred from having his action against them, because h

says, that the de fendants a

t the parish o

f Stepney, o f

their own wrong, and without the cause b

them in that plea alledged, broke and entered the house o

the plaintiff, &c. &c. inmanner and form a s

the plaintiff hath complained above; and this h

prays may b e inquired o f

b y

the country; and the defendants do so likewise.—There is

another plea o f justification like the first, with

this difference only; that in the last plea it isal ledged, the plaintiff and his papers, &c., were carried before lord Halifax, but in the first, it

is before Lovel Stanhope, his assistant o r

law clerk; and the like replication o f

‘de injuria ‘sua propria absq; tali causa,’ whereupon a third issue is joined. This cause was tried atWestminster-hall be fore the lord chief justice, when the jury found

a Special Verdict to the following purport.

“The jurors upon their oath say,

a s

to the issue first joined (upon

the plea not guilty to the whole trespass in the declaration) that a

to the coming with force and arms, and also the tres pass in declaration, except the breaking and entering the dwelling-house o

the plaintiff, and continuing therein for the space o

four hours, and a

that time disturbing him in the posses sion thereof, and searching several rooms there

in ,

and in one bureau, one writing desk, and several drawers o

the plaintiff in his house, and reading over and examining several o

his papers there, and seizing, taking and carrying away some o

h is

books and papers there found, in the declaration complained of, the said defendants are not guilty. As to breaking and entering the dwelling-house, &c. (above excepted) the jurors o

their oath say, that a s

the time o fmaking the following information,

specialwer dict.

1033) A. D. 1765. [1034Entick v. Carrington.

and before and until and at the time of grant ing the warrant hereafter mentioned, and from thence hitherto, the earl of Halifax was, and still is one of the lords of the king's privy council, and one of his principal secretaries of state, and that before the time in the declara tion, viz. on the 11th of October 1762, at St. James's Westminster, one Jonathan Scott of London, bookseller and publisher, came before Iºlward Weston, esq. an assistant to the said earl, and a justice of peace for the city and liberty of Westminster, and there made and gave information in writing to and before the said EdwardWeston against the said John En tick and others, the tenor ofwhich information now produced and given in evidence to the jurors followeth in these words and figures, toº,

wit, “The voluntary information...” “ of J. Scott. In the year 1755, I peace.

* proposed setting up a paper, and “mentioned it to Dr. Shebbeare, and in a few ‘ days one Arthur Beardmore an attorney at ‘law sent fo

me, hearing o fmy intention, and

‘ desired I would mention it to Dr. Shebbeare,

“ that he Beardmore and some others of his

“friends had a n

intention o f setting u p a paper

* in the city. Shebbeare met Beardmore, and “myself and Entick (the plaintiff) at the Horn

* tavern, and agreed upon the setting up the

* paper b y

the name o f

the Monitor, and that

* Dr. Shebbeare and Mr. Entick should have

• 200l. a-year each. Dr. Shebbeare put into “Beardmore's and Entick's hands some papers, “but before the papers appeared Beardmore “sent them back to me (Scott). Shebbeare

“ insisted o n having the proportion o f

his salar

• paid him; he had 50l., which I (Scott) fetched

• from Were and Asgill's b y

their note, which

• Beardmore gave him; Dr. Shebbeare upon

• this was quite left out, and the monies have

• been continued to Beardmore and Entick

• ever since, b y

subscription, a s I supposed,

• raised I know not b y

whom : it has been con

• tinued in these hands ever since. Shebbeare,

• Beardmore and Entick all told me that the

• late alderman Beckford countenanced the

• paper: they agreed with me that the profits “of the paper, paying al

charges belonging “to it

should b e

allowed me. In the paper o f

• the 22d May, called Sejanus, 1 apprehend

• the character o f Sejanus meant lord Bute:

• the original manuscript was in the hand

• writing o f

David Meredith, Mr. Beardmore's

* clerk. I before received the manuscript for

* several years till very lately from the said “hands, and d

believe that they continue still “to write it." Jona. Scott, St. James's 11th

• October 1762.”

“The above information was given voluntari “ly before ine, and signed, in my presence b

* Jona.Scott. J.W. Eston.” “And thejurors further say, that on the 6th of November 1762, the said information was shewn to the earl o

H. and thereupon the earl did then make and issue his warrant di rected to the defendants, then and still being

the king's messengers, and duly sworn to that office, for apprehending the plaintiff, &c. the tenor o

which warrant produced in evidence

to the jurors, follows in these words and figures: “George Mon ‘tagu Dunk, earl o

f Halifax, vis “count Sunbury, andbaron Halifax, ‘one o

the lords o f

his majesty’s

honourable privy council, lieutenantgeneral o f

‘ his majesty's forces, lord lieutenant general ‘and general governor o

the kingdom o f Ire

‘land, and principal secretary o f

state, &c. ‘these are in his majesty's name to authorize ‘and require you, taking a constable to your ‘assistance, to make strict and diligent search

* for John Entick, the author, or one concerned

* in writing o f

several weekly very seditious ‘papers, intitled the Monitor, o

British Free

* holder, N° 357, 358, 360, 373, 376, 378,379,

‘ and 380, London, printed for J.Wilson and ‘J. Fell in Pater Noster Row, which contain “gross and scandalous reflections and invec ‘tives upon his majesty’s government, and

‘ upon both houses o f parliament; and him,

“having found you are to seize and apprehend,

‘ and to bring, together with his books and ‘papers, in safe custody before me to b

e exa “mined concerning the premisses, and further ‘dealt with according to law; in the due exe ‘cution whereof al

mayors, sheriffs, justices “of the peace, constables, and other hismajes ‘ty’s officers civil andmilitary, and loving sub ‘jects whom itmay concern, are to b

e aiding ‘and assisting to you as there shall be occa “sion; and for so doing this shall be your war “rant. Given a

St. James's the 6th day o f

* November 1762, in the third year o f

his ma ‘jesty’s reign, Dunk Halifax. To Nathan “Carrington, James Watson, Thomas Ardran

‘ and Robert Blackmore, four o f

his majesty's ‘messengers in ordinary.’ And the jurors further say, the earl caused this

The secretary of state'swar rant to seize plaintiffand his booksand papers,

warrant to b e

delivered to the de- ...” fendants to b

executed. And ſºtº that the defendants afterwards o

.. .[...” the 11th o

November 1762, a t Sº

1 1

o'clock in the day time, b y ºne

virtue and fo r

execution o f

the ...,

warrant, but without any con stable taken b

them to their assistance, en tered the house o

the plaintiff, the outer door thereof being open, and the plaintiff being therein, to search for and seize the plaintiff and his books and papers, in order to bring him and them before the earl, according to the warrant; and the defendants did then find the plaintiff there, and did seize and apprehend him, and did there search for his books and apers in several rooms and in the house, and

in one bureau, one writing desk, and several drawers o

the plaintiff there in order to find and seize the same, and bring them along with the plaintiff before the earl according to thewar rant, and did then find and seize there some o

the books and papers o

the plaintiff, and perused and read over several other o

his papers which they found in the house, and chose to read

1035] 6GEORGE III. [1036The Case of Seizure of Papers— and that they necessarily continued there in the execution of the warrant four hours, and disturbed the plaintiff in his house, and then took him and his said books and papers from thence, and forth with gave notice at the office of the said secretary of state in Westminster unto Lovel Stanhope, esq. then before, and still being an assistant to the earl in the exa fººd nations of persons, books and paº ers seized by virtue of warrantsjº º issued by secretaries of state, and who sº

also then and still being a justice o fłº,

face for the city and liberty o f

the king's Westminster and county o

Middle letters patent, hei

- - ãº is "º" sex, of their having seized the*****, plaintiff, his books and papers, and

o f

their having them ready to b e examined,

and they then and there a t

the instance o f

the said Lovel Stanhope delivered the said books and papers to him. And the jurors further say, that, o

the 13th o fApril in the first year

o f

the king, his majesty, b y

his letters patent

under the great seal, gave and granted to the said Lovel Stanhope the office o

law-clerk to the secretaries o

state. And the king did there

b y

ordain, constitute and appoint the law-clerk

to attend the offices o f

his secretaries o f state,

in order to take the depositions o f

a ll

such per sons whom it may b

e necessary to examine upon affairs which might concern the public, &c. (and then the verdict sets out the letters|. to the law-clerk in hec verba) as by theetters patent produced in evidence to the jurors appears. And the jurors further say, that Lovel Stanhope, by virtue o

the said letters patent long before the time when, &c. o

the

13th o fApril in the first year o f

the king was, and ever since hath been and still is law.clerk

to the king's secretaries o fstate, and hath exe

cuted that office all the time. And

the jurors further say, that a t dif

ferent times from the time of the Revolution to this present time,

the like warrants with that issued against the plaintiff, have been frequently granted b

the secretaries o

f state, and executed b y

the mes sengers in ordinary for the time being, and that each o

the defendants did respectively take a

the time o f

being appointed messengers, the usual oath, that he would b

e a true servant

to the king, &c. in the place o f a messenger in

That the like warrantshave issuedsince the Itevolu tion.

i., º, * ordinary, &c. And the jurors fur madeby ther say, that n

demand was ever *...*.*, * made or left at the usual place o

..ºf abode of the defendants, or any ofa triº- - - - -tº them, by the plaintiff, or his at tion within - -->4: -.."º. torney, or agent in writing of the; ; ; perusal and copy of the said war:e- - - - - -- *:::it: rant, so issued against the plaintiff

a s aforesaid, neither did the plaintiff commence

o r bring his said action against the defendants,

o r any o f them, within six calendar months next after the several acts aforesaid, and each

o f

them were and was done and committed b y

them a s aforesaid; but whether, upon the

whole matter a s

aforesaid b y

the jurors found, the said defendants are guilty o

the trespass

herein before particularly specified in breaking and entering the house o

the plaintiff in the declaration mentioned, and continuing there for four hours, and a

that time disturbing the plaintiff in the possession thereof, and searching several rooms therein, and one bureau, one writing desk, and several drawers o

the plain tiff in his house, and reading over and examin ing several o

his papers there, and seizing, taking and carrying away some o

his books and papers there found; o

the said plaintiff ought to maintain his said action against them ; the ſº. jurors are altogether ignorant, and pray the advice o

the Court thereupon. And

if upon the whole matter aforesaid by the jurors found, it shall seem to the Court that the defendants are guilty o

the said trespass, and that the plaintiff ought to maintain his action against them, the jurors say upon their said oath, that the defendants are guilty o

the said trespass in manner and form a

the plaintiff hath thereof complained against them; and they assess the damages o

the Dºmages plaintiff b

occasion thereof, be- ** sides his costs and charges b

him about his suit in this behalf laid out to 300l. and for

those costs and charges, to 40s. But if upon the wholematter b

the jurors found, it shall seem to the Court that the said defendants are

not guilty o f

the said trespass; o r

that the plaintiff oughtnot to maintain his action against them; then the jurors d

o say upon their oath that the defendants are not guilty o

the said trespass in manner and form a

the plaintiff hath thereof complained against them. “And as to the last issue on the The is

i.e.

second special justification, the jury ...; found fo r

the plaintiff, that the dé- *" fendants in their own wrong broke and entered, and did the trespass, a s

the plaintiff in his re plication has alleged.” This Special Verdict was twice solemnly ar gued a

the bar;, in Easter Term last b y

ser jeant Leigh for the plaintiff, and Burland, one

o f

the king's serjeants, for the defendants; and

in this present term b y

serjeant Glynn for the plaintiff, and Nares, one o

the king's serjeants, for the defendants.

Easter Term, 5 Geo. 3 .

Counsel for the Plaintiff. A t

the trial o f

this cause the defendants relied upon two defences; 1st, That a secretary o

state a s

a justice o r

conservator o f

the peace, and these messengers acting under his warraut, are within the sta tute o

the 24th o f

Geo. 2 , c .44, which enacts,

(among other things) that “no action shall be

“brought against any constable o r

other officer,

“ o r any person acting b y

his order and in his ‘aid, for any thing done inobedience to the war “rant o

f a justice, until demand hath been made

“ o r

left a t

the usual place o f

his abode b y

the ‘party, o

r b y

his attorney in writing signed b y

‘the party, demanding the same, o r

the perusal ‘and copy o

such warrant, and the saune hath ‘been refused o

r neglected for six days after

Special rer dict conti idea in the coin

1037] A. D. 1765. [1038Entick v. Carrington.

* such demand,” and that no demand was ever made by the plaintiff of a perusal or copy of the warrant in this case, according’to that statute, and therefore he shall not have this action against the defendants, who are merely ministerial officers acting under the secretary of state, who is a justice and conservator of the peace. 2dly, That the warrant under which the defendants acted, is a legal warrant, and that they well can justify what they have done by virtue thereof, fo

r that a

t many different times from the time of the Revolution till this time, the like warrants with that issued against the plaintiff in this case have been ranted b

secretaries o f

state, and executed

b y the messengers in ordinary for the time

eing. As to the first. It is most clear and mani fest upon this verdict, that the earl o

f Halifax

acted a s secretary o f

state when h e granted the

warrant, and not merely a s a justice o f

the peace, and therefore cannot b

within the sta tute 24 Geo. 2

c . 44, neither would he b e

within the statute if he was a conservator of the peace, such person not being once named therein; and there is n

book in the law what ever, that ranks a secretary o

state quasi secretary, among the conservators o

the peace. Lambert, Coke, Hawkins, lord Hale, &c. &c. none o

them take any notice o f a secretary

o f

state being a conservator o f

the peace, and until o

late days h e

was n o

more indeed than

a mere clerk. A conservator o f

the peace had nomore power than a constable has now, who

is a conservator o f

the peace a t

common law.

A t

the time o fmaking this statute, a justice o f

peace, constable, headborough and other officers

o f

the peace, borsholders and tithinginen, a s

well a s secretary o f

state, conservator o f

the peace, and messenger in ordinary, were a

very well known; and if it had been the intent

o f

the statute, that a secretary o f state, conser.

vator o f

the peace, and messenger in ordinary, should have been within the statute, it would have mentioned a

ll o r

some o f them; and it

not having done so, they cannot b e

within it .

A messenger certainly cannot bewithin it ,

who

is nothing more than a mere porter, and lord Halifax's footmen might a

well b e

said to b e

officers within the statute as these defendants. Besides, the verdict finds that these defendants executed the warrant without taking a constable to their assistance. This disobedience will not only take them out o

the protection o f

the statute, (i

they had been within it), but will also disable them to justify what they have done, b

any plea whatever. The office o f

these defendants is a place o f

considerable profit, and a

unlike that o f a constable and

tithingman a s

can be, which is a n

office o f

burthen and expence, and which h e isbound to

execute in person, and cannot substitute another

in his room, though hemay call persons to as sist him. 1 Hale's P. C. 531. This warrant

is more like a warrant to search for stolen goods and to seize them, than any other kind o

warrant, which ought to be directed to con

stables and other public officers which the law takes notice o

(4 Inst. 176.) 2 Hale's P .

C. 149, 150. How much more necessary in

the present case was it to take a constable to the defendants' assistance. The defendants have also disobeyed the warrant in another matter: being commanded to bring the plaintiff, and his books and papers before lord Halifax, they carried him and them before Lovel Stanhope, the law-clerk; and though he is a justice' o

the peace, that avails Hoſhing; fo r

n o single

justice o f

peace ever claimed a right to issue such awarrant a

s this, nor did h e

act therein

a s a justice o f

peace, but a s

the law-clerk to

lord Halifax. The information was made before justice Weston. The secretary o

state

in this case never saw the accuser o r

accused.

It seems to have been below hi s

dignity. The names o

the officers introduced here are not to

b e

found in the law-books, from the first year book to the present time. As to the second. A power to issue such

awarrant a s

this is contrary to the genius o f

the law o f England; and even if they had found

what they searched for, they could not have justified under it

But they did not find what they searched for, nor does it appear that the plaintiff was the author o

f any o f

the supposed

seditious papers mentioned in the warrant; so

that it now appears that this enormous trespass and violent proceeding has been done upon mere surmise. But the verdict says, such warrants have been granted b

y secretaries o f

state ever since the Pevolution. If they have, it is high time to put a

end to them; for if they are held to b

e legal, the liberty o f

this country is a t

a n

end. It is the publishing o f a libel which is

the crime, and not the having it locked u p

in a

private drawer in a man's study. But ifhaving

it in one's custody was the crime, n o power

can lawfully break into a man's house and study to search for evidence against him. This would b e

worse than the Spanish inquisition; for ransacking a man's secret drawers and boxes, to come, a

evidence against him, is

like racking his body to come a t

his secret thoughts. The warrant is to seize a

the plaintiff's books and papers without exception, and carry them before lord Halifax. What? Has asecretary o

state a right to see a ll aman's

private letters o f

correspondence, family con cerns, trade and business ** This would be

monstrous indeed! and if it were lawful, no

man could endure to live in this country. In

* Mr. Burke in his Short Account of a late short Administration, (this administration came into employment under the mediation o

the duke o

f Cumberland, son toGeorge the second,

in July 1765, and was removed in July 1766: during it

continuance in office the marquis o f

Rockingham was First Lord o f

the Treasury, and Mr. Dowdeswell Chancellor o

the Exche. quer) says, “The lawful secrets o

business and friendship were rendered inviolable by the Resolution for condemning the seizure o

papers.’ See New Parl. Hist. vol. 16, p .

207.

1039] 6 GEORGE III. L1010The Case of Seizure of Papers— the case of a search-warrant for stolen goods, it is never granted, but upon the strongest evi dence that a felony has been committed, and that the goods are secreted in such a house; and it is to seize such goods as were stolen, not

a ll

the goods in the house; but if stolen goods are not found there, a

who entered with the warrant are trespassers. However frequently these warrants have been granted since the Re volution, that will not make them lawful ; for

if they were unreasonable or unlawful when first granted, n

o usage o r continuance, can

make them good. Even customs, which have been used time out o

f mind, have been often adjudged void, a

s being unreasonable, contrar

to common right, o r purely against law, if

upon considering their nature and quality they shall be found injurious to a multitude, and prejudicial to the commonwealth, and to have their commencement (for the most part) through

the oppression and extortion o f

lords and great men. Davis 32 b

These warrants are not

b y

custom; they g o

n o farther back than

eighty years; and most amazing it is they have never before this time been opposed o

controverted, considering the greatmen that have presided in the King's-bench since that time. But it was reserved for the honour of this Court, which has ever been the protector

o f

the liberty and property o f

the subject, to

demolish this monster o f

oppression, and to

tear into rags this remnant o f

Star-chamber tyranny.

Counsel for the Defendants. I am not at al l

alarmed, if this power is established to be in

the secretaries o f

state. It has been used in

the best o f times, often since the Revolution. I

shall argue, first, that the secretary o f

state haspower togrant these warrants; and if I can not maintain this, I must, secondly, shew that

b y

the statute 2 4

Geo. 2 , c . 24, this action does

not lie against the defendants the messengers.

1 .

A secretary o f

state has the same power to

commit for treason a s a justice o f

peace. Ken dall and Roe,” Skin. 596. 1 Salk. 346, S

C. 1

lord Raym. 65. 5Mod. 78, S .

C .

Sir William Wyndham was committed b

James Stanhope, secretary o

state, to the Tower, for high trea son the 7th o

fOctober, 1715. See the case 1.

Stra. 2 .

And serjeant Hawkins says, it is cer tain, that the privy council, o

r any one o r

two

o f

them, o r a secretary o f state, may lawfully

committ persons for treason, and for other

* See this Case, in vol. 12, p .

1299.

+ With respect to the power o f a secretary

o f

state to commit, see the Cases o f Wilkes,

p .

982, o f

this volume, and o f

Leach against Money and others, p .

1002 o f

this volume.“If we are to learn from the records in courts

o f justice, and from the received practice a t

a ll

times what is the law o f

the land, I have no difficulty in saying that the secretaries o

state have the right to commit. This right was not even doubted b

lord Camden, who expressed

a s great auxiety fo r

the liberty o f

the subject a s

offences against the state, a s

in a ll ages they

have done. 2Hawk. P .

C. 117, sect. 4 . 1 Leon:

70, 71. Carth. 291. 2 Leon. 175. If it is clear that a secretary o

state may commit for trea son and other offences against the state, h

e cer tainly may commit for a seditious libel against the government; for there can hardly be a

greater offence against the state, except actual treason. A secretary o

state is within the Habeas Corpus Act. But a power to commit without a power to issue his warrant to seize the offender and the libel would b

enothing ; so

it must be concluded that he has the same power upon information to issue a warrant to

search for and seize a seditious libel, and its author and publisher, a

s a justice o f peace has

for granting awarrant to search for stolen goods, upon a

information that a theft has been com mitted, and that the goods are concealed in such

a place; in which case the constables and officers assisting him in the search, may break open doors, boxes, &c. to come a

tj. stolen goods. Supposing the practice o

f granting warrants to search for libels against the state b

admitted to b e

a n

evil in particular cases, yet to

le t

such libellers escape, who endeavour to raise rebellion, is a greater evil, and may b

e com pared to the reason o

Mr. Justice Foster in the Case o

f Pressing, [Vol.18, p. 1323.j where he

says, “That war is a great evil, but it is chosen

to avoid a greater. The practice o f

pressing is

one o f

the mischiefs war brings with it; but it

is a maxim in law and good policy too, that a ll

private mischiefs must b e

borne with patience,

fo r

preventing a national calamity, Xc.’

2 . Supposing there is a defect o f jurisdiction

in the secretary o f state, yet the defendants are

within the stat. 2 4

Geo. 2 ,

c . 44, and though

not within the words, yet they are within the reason of it. That it is not unusual in acts of parliament to comprehend b y

construction a

generality, where express mention ismade only

o f a particular. The statute o f

Circumspecte agatis concerning the bishop o

Norwich ex tends to a

ll bishops. Fitz. Prohibition 3 ,

and

2 Inst. o n

this statute, 25 Edw. 3 ,

c .

enables

the incumbent to plead in quare impedit, to the king's suit. This also extends to the suits o

a ll persons, 38 E . 3 ,

31. The act 1Ric. 2 ,

or dains that the warden of the Fleet shall not permitº in execution to go out ofprison by bail or baston, yet it is adjudged that this act extends to a

ll gaolers. Plowd. Com. case o

f Platt, 35 b .

The stat. d e

domis, condi tionalibus extends to all other limitations in tail

not there particularly mentioned, and the like construction has been put upon several other

any man ; indeed it has been thought b y

some persons eminent in our possession, who have considered the point since, that h

rather over stepped the line o

the law in the Case o f

R .

v .Wilkes, and certainly if that judgment can

b e supported, many other cases that have been

solemnly determined, cannot b e

reconciled with it.” Per lord Kenyon, C.J. in the Case of the King against Despard, 7 T

Rep. 742.

1041] A. D. 1765. [1042Entick v. Carrington.

statutes. Tho. Jones 62. The stat. 7 Jac. 1, c. 5, the word “constable’ therein extends to a deputy constable. Moor 845. These messen gers in ordinary have always been consi dered as officers of the secretary of state, and a commitment may be to their custody, as in si

W.Wyndham's case. A justice o f

peace may make a constable pro hac vice to execute

a warrant, who would be within the stat. 24 Geo. 2

So if these defendants are not consta bles, yet a

officers they have power to execute

awarrant o f a justice o f

peace. A constablemay, but cannot b

e compelled to execute a warrant out o

his jurisdiction. Officers acting under colour o

foffice, though doing a n illegal act, are

within this statute. Vaugh. 113. So that n ode

mand having ever been made o f

the warrant,

nor any action commenced within sixmonths, the plaintiff has n

o right o f

action. It was said, that a conservator o

the peace had n o

more power than a constable has now. I answer, they had power to bind over a

t common law, but a constable has not. Dal ton, cap. 1

Counsel for the Plaintiff, in reply. It is

said, this has been done in the best o f

times ever since the Revolution. The conclusion from thence is

that it is the more inexcusable, because done in the best o

times, in a n

aera

when the common law (which had been trampled under the foot o

f arbitrary power) was revived. We do not deny but the secretary o

state hath power to commit for treason and other offences against the state; but that is

not the present case, which isbreaking into the house o

f a subject, breaking into his drawers

and boxes, ransacking all the rooms in his house, and prying into a

h is

private affairs.

. But it is said, if the secretary of state has power to commit, h

has power to search, &c.

a s in the case o f

stolen goods. This is a false consequence, and it might a

well be said h e

has a power to torture. A s to stolen goods, if

the officers find none, have they a right to take away a man's goods which were not stolen P

Pressing is said to b e a dangerous power, and

yet it has been allowed for the benefit o f

the

state. But that is only the argument and opi nion o

f a single judge, from ancient history

and records, in times when the lower part o f

the subjects were little better than slaves to

their lords and great men, and has not beenal lowed to b

lawful without a n

act o fparliament

since the time of the Revolution. The stat.

2 4

Geo. 2 ,

has been compared to ancient statutes, naming particular persons and dis tricts, which have been construed to extend to

many others not named therein; and so the defendants, though n

such officers are men tioned, b

like reason, are within the statute o f

24 Geo. 2 .

But the law knows no such officers

a s messengers in ordinary to the king. It is

said the Habeas Corpus Act extends to com mitments b y

secretaries o f

state, though they are not mentioned therein. True, but that statute was made to protect the inuocent WOL, XIX.

against illegal and arbitrary power. It is said, the secretary o

state is a justice o f

peace, and the messengers are his officers. Why then did the warrant direct them to take a constable to

their assistance, if they were themselves the proper officers? It seems to admit they were not the proper officers. If a man bemade an officer for a special purpose to arrest another,

h e

must shew his authority; and if he refuses,

it is not murder to kill him. But a constable or other known officer in the law need not shew his warrant.

Lord Chief Justice. I shall not give an

opinion a t present, because this case, which is

o f

the utmost consequence to the public, is to

b e argued again. I shall only just mention a

matter, which has slipt the sagacity o f

the counsel o

both sides, that it may b e

taken notice o

f upon the next argument. Suppose a

warrant which is against law b e granted, such

a s

n o justice o f

peace, o r

other magistrate high

o r

low whomsoever, has power to issue, whe ther that magistrate o

r justice who grants such warrant, o

the officer whoexecutes it , is within

the stat. 24 Geo. 2 , c .44. To put one case

(among a n

hundred that might happen): sup pose a justice o

peace issues a warrant to

search a house for stolen goods, and directs it

to four o f

his servants, who search and find no stolen goods, but seize a

the books and papers

o f

the owners o f

the house, whether in such a

case would the justice o f peace, his officers o r

servants, b e within the stat. 24 Geo. 2 . 2 I de

sire that every point o f this case, may b

argued to the bottom, for I shall thinkmy self bound, when I come to give judgment, to

givemy opinion upon every point in the case. Mich. 6 Geo. 3.

Counselfºr the Plaintiff o n

the second argu ment. If the secretary of state, or a privy oounsellor, justice o f

peace, o r

other magis trate whatever, have n o legal power to grant

the warrant in the present case, itwill follow, that the magistrate usurping such a

n illegal power, can never b

construed to b e

within the meaning o

reason o f

the statute o f

2 4

Geo. 2 ,

c . 44, which was made to protect justices o f

the peace, &c. where they made blunders, o r

erred in judgment in cases within their juris diction, and not to give them arbitrary power

to issue warrants totally illegal from beginning

to end, and in cases wherein they had n o juris

diction a t

all. If any such power in a secre tary o

state, o r a privy counsellor, had ever

existed, it would appear from our law-books. All the ancient books are silent on this head. Lambert never once mentions a secretary o

state. Neither h e

nor a privy counsellor, were ever considered a

s magistrates. In al l

thear guments touching the Star-Chamber, and Peti-. tion o

f Right, nothing o f

this power was ever dreamt o

State-commitments anciently were either permandatum regis in person, o

b y

warrant o f

several o f

the privy counsellors

in the plural number. The king has this

1013] 6GEORGE III. [1044The Case of Seizure of Papers— power in a particular mode, viz. by the advice of his privy council, who are to be answerable to the people if wrong is done. He has no other way but in council to signify hisman date. In the Case of the Seven Bishops, this matter was insisted upon at the bar, when the Court presumed the commitment of them was by the advice of the privy council; but that a single privy counsellor had this power, was not contended for by the crown-lawyers then. ThisCourt will require it to be shewn that there have been ancient commitments of this sort. Neither the secretary of state, or a privy coun sellor, ever claimed a right to administer an oath, but they employ a person as a law-clerk, who is a justice of peace, to administer oaths, and take recognizances. Sir Barth. Shower, in Kendall and Roe's case, insisted they never had such power. It would be a solecism in our law to say, there is a person who has power to commit, and has not power to exa mine on oath, and bail the party. Therefore whoever has power to commit, i. power to bail. It was a question formerly, whether a constable as an ancient conservator of the peace should take a recognizance or bond. In the time of queen Elizabeth there was a case wherein some of the judges were of one opi nion and some of another. A secretarv of state was so inconsiderable formerly, that he is notmentioned in the statute of scandalum mag natum. His office was thought of no great im portance. He takes no oath of office as secre. tary of state, gives no kind of security for the exercise of such judicial power as he now usurps. If this was an ancient power, itmust have been annexed to his office anciently; it cannot be now given to him by the king. The king cannot make two chief justices of the Common-Pleas; nor could the king put the great seal in commission before an act of par liament was made for that purpose. There was only one secretary of state formerly: there are now two appointed by the king. If they have this power ofmagistracy, it should seem to require some law to be made to give that power to two secretaries of state which was formerly, in one only. As to commitments per mandatum regis, see Staunf. Pl.Coron. 72. 4 Inst, c. 5, court of Star-Chamber. Admit ting they have power to commit in high trea son, it will not follow they have power to com mit fo

r amisdemeanor. It is o f

necessity that they can commit in high treason, which re quires immediate interposition for the benefit o

the public. In the case o f

commitment b

Walsingham secretary o f

state, 1 Leon. 71, it

was returned o n

the Habeas Corpus a t last,

that the party was committed “ex sententia et

mandato (otius concilii privatidomintereginae.” Because h e

found h e

had not that power o f

himself, h e

had recourse to the whole privy council's power, so that this case is rather for the plaintiff. Commitment b

the High Com mission Court o

York was declared b y parlia ºtillegal from the beginning; so in the Case

ºfShip-Money the parliament łłº. it illegal.

Counsel for the Defendants on the second argument. Themost able judges and advocates, ever since the Revolution, seem to have agreed,

that the secretaries o f

state have this power to

commit fo r a misdemeanor. Secretaries o f

state have been looked upon in a .."; high

light for two hundred years past. 27 .

H . 8 , c .

1 1 .

Their rank and place is settled b y

$ 1 H.

8 ,

c .

10. 4 Inst. 362, c. 77, o f Precedency. 4

Inst. 56. Selden's Titles o f Honour, c .

Officers

o f

State. So that a secretary o f

state is some thing more than a mere clerk, a

was said. Minshew verb. Secretary. He is “e secretio ribus consiliis domini regis.’ Serjeant Pen gelly moved, that si

William Wyndham might

b e

bailed. If he could not be committed b y

the secretary o f

state for something less than treason, why did h

move to have him bailed? This seems a concession that hemight be com mitted in that case for something less than treason. Lord Holt seems to agree that a

commitment b y a secretary o f

state is good.

Skin. 598. 1 lord Raym. 65. There is n o

case in the books that says in what cases a se cretary o

state can o r

cannot commit; b y

what power is it that he can commit in the case o f

treason, and in n o

other case ? The resolu tion o

f the House o

Commons touching the Petition o

fRight, [Selden last volume, Parlia mentary. History, vol. 2

p .

374.] Secretary Coke told the Lords, it was his duty to com mit b

the king's command... Yoxley's case, Carth. 291, h

was committed b y

the secretary

o f

state o n

the statute o f

Elizabeth for refusing

to answer whether h e

was a Romish priest. The Queen and Derby, Fortescue's Reports, 140, the commitment was b

y a secretary o f

state, Mich. 1 0 Annæ, for a libel, and held

good. (Note. Bathurst J. said he had seen the Habeas Corpus and the Return, and that this was a commitment b y a secretary o f

state.) The Kingand Earbury, Mich. 7Geo. 2 , 2Bar nard 346, was a motion to discharge a recog nizance entered into for writing a paper called The Royal Oak, Lord Hardwicke said itwas settled in Kendall and Roe's case, that a secre tary o

state might apprehend persons sus pected o

treasonable practices; and there are

agreat number o f precedents in the Crown-of

fice o f

commitments b y

secretaries o f

state fo r

libels against the government.

After time taken to consider, Lord Camden,

Lord Chief Justice, delivered the Judgment

o f

the Court for the Plaintiff, in the following words:

L . C . J. This record hath set up two de

fences to the action, o n

both o f

which the de fendants have relied. - - The first arises from the facts disclosed in

the special verdict; ,whereby the defendants put their case upon the statute

of 24 Geo. 3 ,

insisting, that they have nothing to d o

with the legality o

the warrants, but that they ought

to have been acquitted a s

officers within the meaning o

that act.

1045] Entick v. Carrington. A.D. 1765. [1016 The second defence stands upon the legality of the warrants; for this being a justification at common law, the officer is answerable if the magistrate has no jurisdiction. These two defences have drawn several points into question, upon which the public, as well as the parties, have a right toour opinion. Under the first, it is incumbent upon the of. ficers to shew, that they are officers within the meaning of the act ofparliament, and likewise that they have acted in obedience to thewar rant.

The question, whether officers or not, in volves another; whether the secretary of state, whose ministers they are, can be deemed a justice of the peace, or taken within the equi ty of the description; for officers and justices are here co-relative terms: therefore either

both must be comprised, or both excluded. This question leads me to an inquiry into the authority of that minister, as he stands describ ed upon the record in two capacities, viz. secre tary of state and privy counsellor. And since no statute has conferred any such jurisdiction as this before us, it must be given, if it does really exist, by the common law; and upon this ground he has been treated as a conser wator of the peace. Thematter thus opened, the questions that naturally arise upon the special verdict, are; First, whether in either of these characters, or upon any other foundation, he is a conser vator of the peace. Secondly, admitting him to be so, whether he is within the equity of the 24th Geo. 2. These points being disposed of, the next in order is

whether the defendants have acted in

obedience to the warrant. -

In the last place, the great question upon the justification will be, whether the warrant to

seize and carry away the plaintiff's papers is

lawful. -

FIRSt QUESTION.

The power o f

this minister, in the way wherein it has been usually exercised, is pretty singular.

If he is considered in the light of a privy counsellor, although every member o

that board is equally entitled to it with himself, yet he is the only one o

that body who exerts it .

His power is so extensive in place, that it

spreads throughout the whole realm; yet in

the object it is so confined, that except in li

bels and some few state crimes, a s they are

called, the secretary o f

state does not pretend

to the authority o f a constable.

To consider him as a conservator. He never binds to the peace, o

r good behaviour,

which seems to have been the principal duty of a conservator; at least he never does it in

those cases, where the law requires those sure ties. Ibut he commits in certain other cases,

where it is very doubtful, whether the conser vator had any jurisdiction whatever. Hiswarrants are chiefly exerted against li

bellers, whom h e

binds in the first instance to

their good behaviour, which n o

other conser vator ever attempted, from the best intelligence that we can learn from our books.

And though h e

doth a ll

these things, yet it

seems agreed, that h e

hath n o power whatso

ever to administer an oath or take bail.

This jurisdiction, as extraordinary as 1 have described it

, is so dark and obscure in it s origin,

that the counsel have not been able to form any certain opinion from whence it sprang. Sometimes they annex it to the office o

se cretary o

f state, sometimes to the quality o f

º counsellor; and in the last argument itas been derived from the king's royal prero gative to commit ºhis own personal command.Whatever may have been the true source of

this authority, itmust be admitted, that at this day h

is in the full legal exercise o f it; be

cause there has been not only a clear practice

o f it ,

a t

least since the Revolution, confirmed

b y a variety o f

precedents; but the authority has been recognized and confirmed b

two cases in the very point since that period : and therefore we have not a power to unsettle o

contradict it now, even though we are per suaded that the commencement of it was er roneous.

And yet, though the enquiry I am now upon cannot b

attended with any consequence to

the public, it is nevertheless indispensable ; for

I shall trace the power to its origin, in order to

determine whether the person is within the equity o

the 24th Geo. 2 . -

Before I argue upon that point, or even state the question, whether the secretary o

state b e

within that act, we must know what he is .

This is no very agreeable task, since it may possibly tend to create, in some minds, a doubt upon a practice that has been quietly submitted

to ,

and which is o f

n o

moment to the liberty o f

the subject; for so long a s

the proceedings

under these warrants are properly regulated

b y

law, the public is very little concerned in

the choice o f

that person b y

whom they are issued.

To proceed then upon the First Question, and to consider this person in the capacity o

a secretary o f

state.

This officer is in truth the king's private se. cretary. He is keeper o

the signet and seal used for the king's private letters, and backs the sign manual in transmitting grants to the privy seal. This seal is taken notice o

f in the

Articuli super Chartas, cap. 6 ,

and my lord Coke in his comment (2 lnst. 556,) upon that chapter, p

556, describes the secretary, a s I

have mentioned. He says h e

has four clerks, that sit a

his board; and that the law in some cases takes notice o

the signet; for a ne ereat regno may b

e b y

commandment under the privy seal, o

under the signet; and in this case the subject ought to take notice o

f it ;

for

it isbut a signification o f

the king's command ment. If at the time my lord Coke wrote his

3 d

Institute h e

had been acquainted with the authority that is now ascribed to the secretary,

h e

would certainly have mentioned it in this

1047] 6GEORGE III. [1048The Case of Seizure of Papers— place. It was too important a branch of the office to be omitted ; and his silence therefore is a strong argument, to a man's belief at least, that no such power existed at that time. He has likewise taken notice of this officer in the

Prince's case in the 8th Report. He is men tioned in the statute of the 27th H. 8, chap. 11, and in the statute of the same king touch ing precedency; and it is observable, that he is called in these two statutes by the single name of secretary, without the addition, which mo dern times has given him, of the dignity of a state-officer.

I do not know, nor do l believe, that he was anciently amember of the privy council; but if he was, he was not even in the times of James and Charles the 1st, according to my lord Clarendon, an officer of such magnitude as he grew up to after the Restoration, being only employed, by this account, to make up dispatches at the conclusion of councils, and not to govern or preside in those councils.

It is not difficult to account for the growth of thisminister’s importance. He became na turally significant from the time that a

the

courts in Europe began to admit resident am bassadors; for upon the establishment o

this new policy, that whole foreign correspondence passed through the secretary's hands, who b

this means grew to b e

a n

instructed and confi dential minister.

This being the true description o f

his emF. I see no part of it that requires theauthority of a magistrate. The custody of a

signet can imply n o

such thing ; nay, the con trary would rather b

inferred from this cir cumstance; because if his power to commit was inherent in his office, his warrants would maturally b

e stamped with that seal; and in

this, light the privy seal, one should think, would have bad the preference, a

s being high est in dignity and o

more consideration in law. Besides a

ll this, it is not inmy opinion conso nant to the wisdom o

r analogy o f

our law, to

give a power to commit, without a power to

examine upon oath, which to this day the se cretary o

state doth not presume to exercise. Mr. Justice Rokeby, in the case o

Kendall and Rowe, says, that the one is incident to the other; (5Mod. 78,) and I am strongly o

thati. for how can he commit, who is notle to examine upon oath fºº What magistrate can b

e found, in our law, so defectively con stituted? The only instance o

this kind, that can b

e produced, is the practice o f

the House

o f

Commons. But this instance is n o prece

dent for other cases. The rights o f

that as sembly are original and self created; they are paramount to our jurisdiction, and above the reach o f injunction, prohibition, o r

error.t. So that I still say, notwithstanding that particular case, there is n

o magistrate in our law so- -—

* See Leach's Hawkins's Pleas of the Crown, book 2

, c . 16, s. 4 .

f Ibid. book 2, c. 15, s,73,

framed, unless the secretary o f

state b e

a n ex

ception. NowMr. Justice Rokeby andmyself, though we agree in the principle, form our conclusions in a very different manner. He from the assumed power o

f committing, which ought first to have been proved, infers the in cidental powers o

f administering a n

oath. I

o n

the contrary, from the admitted incapacity

to d o

the latter, am strongly inclined to deny the former.

Again, if the secretary of state is a common law magistrate, one should naturally expect to

find some necount o f

this in our books, whereas his very name is unknown; and there cannot

b e a stronger argument against his authority in

that light, than the unsuccessful attempts that have been made a

the bar to transform him

into a conservator. These attempts have given

u s

the trouble o f looking into those books that

have preserved the memory o f

these magis trates, who have been long since deceased and forgotten. Fitzherbert, Crompton, Lambard, Dalton, Pulton, and Bacon, have all been searched to see, if any such person could be

found amongst the old conservators. It is not material to repeat the whole number, and to

range them in their several classes; but it will b e

sufficient to enumerate the principal ones;

because they may b e

referred to in some other other part o

f the argument.

The king is mentioned a s

the first. Then come the chancellor, the treasurer, the high steward, the master o

the rolls, the chief justice andº: of the King's-bench, allthe judges in their several courts, sheriffs, co roners, constables; and some are said to b

conservators b y

tenure, some b y

prescription,

and others by commission. But n o secretary

o f

state is to b e

found in the catalogue; and I

d o affirm, that n o treatise, case, record, o r sta tute, has ever called him a conservator, from

the beginning o f

time down to the case o f

the King against Kendall and Rowe.” The first time, h

e appears in our books to be

a granter o f

our warrants, is in 1 Leonard 7 0

and 7 1 ,

29 and 30 Elizabeth, where the return

to a Habeas Corpus was a commitment b y

si r

Francis Walsinghaul, principal secretary, and one o

the privy council. The Court takes this distinction. Where a person is committed

b y

one o f

the privy council, in such case the cause of the commitment should be set down

in the return; but o n

the contrary, where the party is committed b

the whole council, there

n o

cause need b e alleged. The Court upon

this ordered the return to be amended, and then the return is a commitment b

the whole council. There is a like case in the 2 Leonard, p.175,

a little prior in point o f

time where the com initment is b

si r

Francis Walsingham, one o f

the principal secretaries, &c. Because the warden of the Fleet did not return for what

cause Helliard was committed, the Court gives

* See Leach's . Hawkins's Pleas of the Crown, book 1

, c . 60, s. 1 ,

1049] A. D. 1765. [1050Entick v. Carrington.

him day to mend his return, or otherwise the prisoner should be delivered. Nobody who reads this case can doubt, but that the &c.must be supplied by the addition of privy counsellor, ‘as in the other case.

These authorities shew, that the judges of those days knew of no such committing ma gistrate as a secretary of state. They pay no regard to that office, but treat the commitment as the act of the privy counsellor only ; and to shew farther that the privy counsellor as such was the only actingmagistrate in state matters, all the twelve judges two years afterwards were obliged to remonstrate against the irregula rities of their commitments, but take no notice ofany such authorities practised by the secre taries of state.

in the 3d year of king Charles the 1st, when the House of Commons started that famous dispute, upon the right claimed by the king and the privy council to commit without shew ing cause, it is natural to expect, that the se cretary's warrant should have been handled, or at least named among the state commitments. But there is not throughout that long and learned discussion one word said about him, or his name so much asmentioned; and the Pe tition of Right, as well as a

the proceedings

that produced it , is equally silent upon the

subject. Again, when in the 16th year in the same king's reign the Habeas Corpus was granted

b y

act o f

parliament (16 Cha. 1 , c . 10, s. 8 ,)

upon a ll

the state commitments, and where the omission o

one mode o f committing would

have been fatal to the subject, and frustrated all the remedy o

that act, and where the have enumerated not only every method o

committing that had been exercised, but every other that might probably exist in after times; yet the commitment b

y a secretary o f

state is

not found amongst the number. If then he

had power o f

his own to commit, this famous act o

fparliament was waste paper, and the sub ject still at the mercy o

the crown, without the benefit o

the Habeas Corpus; a supposition altogether incredible: for who can believe, that this parliament, so jealous, so learned, so in dustrious, so enthusiastic o

the liberty o f

the subject, when they were making a law to re

lieve prisoners against the power o f

the crown,

should bind the king, and leave his secretary o f

state a t large?

Whoever attends to all these observations

will see clearly, that the secretary o f

state in

those days never exercised the power o f

com mitting in his own right; I say, in his own right, because that he did in fact commit, and that frequentlyeven a

the time when the mat ter o

the Habeas Corpus was agitated in the

3 d

o f king Charles the 1st, will appear from a

passage in the Ephemeris Parliamentaria, page 162. This passage, when it comes to beat tended to,will throw great light upon the pre sent enquiry. It is sufficient o

itself to con vince me, from what source this practice first arose. Itwas from adelegation of the king's

royal prerogative to commit b y

h is

own power, and from the king devolved in point o

execu. tion upon the secretary o

state. The passage

I allude to is a speech of secretary Cook. Whilst the parliament were disputing the king's authority to commit, either b

himself

o r b y

his council, without shewing the cause, the king, whowas desirous to pacify those dis contents, and yet unwilling to part with his prerogative, sent a message to the House o

Commons to assure them, that if they would drop the business, h

would promise them, upon his royal word, not to use this prerogative contrary to law. Secretary Cook delivers this message, and then the book proceeds in these words. After speaking o

himself and the na ture o

his place, h e says, “Give me leave

freely to tell you, that I know b y

experience,

that hy theº: I hold under his majesty, if I

will discharge the duty o f my place and the

oath I have taken to hismajesty, I must com mit,and neither express the cause to the gaoler, nor to the judges, nor to any counsellor in

England, but to the king himself. Yet do not think, Igo without ground of reason, or take this power committed to me to b

unlimited. Yea rather to me it is charge, burthen, and danger; for if I by this power commit the poorest porter, if I do not upon a just cause, if

it may appear, the burthen will fall upon me heavier than the law can inflict; for I shall losemy credit with hismajesty and my place: and I beseech you consider, whether those that have been in the same place, have not commit ted freely, and not any doubt made o

f it , o r any

complaint made b y

the subject.” To understand the meaning o

f this speech, I

must briefly remind you o f

the nature o f

that famous struggle for the liberty o

f the subject

between the crown and the parliament, which was then in agitation.

The points in controversy were these: whe ther a subject committing b y

the king's per sonal command, o

r b y

warrant o f

the privy council, ought toºl. the cause in thewarrant, and whether the subject in that case was bailable.

Thematter in dispute was confined to those two commitments. The crown claimed no

such right fo r

any other warrant; nor did the Commons demand redress against any other. The statute o

Westminster the first, which was admitted o

a ll

sides to b e

the only foundation upon which the pretensions o

the crown were built, speaks o

n o

other arrests in the text, but the king's arrest only; and the comment o

law had never added any other arrest b y

con struction, but that only o

the privy council: No other commitment whatever was deemed

h y any man to b e

within the equity o f

that act;

The case, cited upon that occasion,ºof

n o

other commitments but these, Nay the House o

f Lords, who passed a resolution in the heat o

this business in favour o f

theking's authority, resolves only, that the king o

his council could commit, but meddle with no other commitment. Seeretary Cook tells them

-1051] 6 GEORGE III. ºThe Case of Seizure of Papers— [1052 in this public manner, that he made a daily practice of committing without shewing the cause; yet the House takes no notice of any se cretary's warrant as such, nor is the secretary's name mentioned in the course of a

those pro ceedings. What then were those commitments mentioned b

the secretary P. They were cer tainly such only, a

were ‘per speciale man

“ datum domini regis.’ They could be no other. They were the commitments then under de bate. They, and theyº: were referred toby the king's message, and were consequently the subject matter o

f the secretary's apology;

for n o

other warrant claimed that extraordinary privilege o

concealing the cause. This observation explains him, when he calls

it a power committed to him; which I con strue, not a

annexed tohis office, but specially delegated. This accounts too for his notion, that the law could not touch him; but that if

he abused his trust, he should lose his credit with the king and his place, which h

describes

a s a heavier punishment than the law could

inflict upon him. Upon this ground it will b e

easy to explain the notable singularities o f

this minister's proceeding, which are not to b

e re conciled to any idea o

f a common-lawmagis

trate. Such are his meddling only with a few state-offences, his reach over the whole king dom, his committingwithout the power o

ad ministering a

n oath, his employment o f

none but the messenger o

the king's chamber, and his command to mayors, justices, sheriffs, &c.

to assist him; a ll

which particularities are con gruous enough to the idea o

the king's per sonal warrant, but utterly inconsistent with a

the principles o f

magistracy in a subject.

If on the other hand it can be understood, that h

could and did commit without shewing the cause in his own right and b

virtue o f

his office, then was his warrantadmitted to b

e legal

b y

the whole House, and without censure o r

animadversion. .. . Itwas neither condemned b y

the Petition o f Right, nor subject to the Ha

beas Corpus Act o f

16th o f

Charles the First, (c. 10.ºut. of the case was no more than this. The council-board were too numerous to be acquainted with every secret transaction that required immediate confinement; and the de lay b

summoning was inconvenient in cases that required dispatch. The secretary o

fstate,

a s

most entrusted, was the fittest hand to issue sudden warrants; and therefore we find him

so employed b y

queen Elizabeth under the quality o

f aprivy counsellor. But when the

attempt failed, the judges declaring, that h e

must shew the cause, and that they would re mand none o f

his prisoners in any case but that

o f high treason, those warrants ceased, and

then a new method was taken b y

making him the instrument o f

the king’s specialemandatum; for that is the form in which all warrants and

returns were drawn, that were produced upon that famous argument. Having thus shewn, not only negatively that this Power o

f committing was not annexed to

the secretary's office, butaffirmatively likewise that h

was notifier o r countersigner o f

the king's personal warrant acting in alio jure down to the times of the 16th of Charles the first, and consequently to the Restoration, for there was n

o secretary in that interval, I have but little to add upon this head, but observing what passed between that time and the case o

Kendall and Rowe. The Licensing Act, that took place in the 13th and 14th

;:... the Second, (c. 33), gave him his first right to issue a warrant in

his own name; not indeed to commit persons, but a warrant to search for papers. Whether upon this new power h

e grafted any authority

to commit persons in his own right, a s it should

seem h e

did b y

the precedent produced the other day, is not very material. But it is re. markable, that during that interval h

adhered

in some cases to the old form, b y

specifying

the express command o f

the king in thiswar rant.

With respect to the cases that have passed since the Revolution, such a

the King against Kendall and Rowe, the Queen against Darby, and the King and Earbery, I shall take no

other notice o f

them in this place, than to say, they afford n

o light in the present inquiry b y

shewing the ground o f

the officer's authority, though they are strong cases to confirm it

But before I can fairly conclude, that the secretary o

state's power was derived from the king's personal prerogative and from no

other origin, I must examine, what has passed relative to the power o

f a separate privy coun

sellor in this respect. This is the more neces sary to b

e done, ºut.my lord chief justice Holt has built a

his authority upon this ground; and the subsequent cases, instead o f

striking out any new light upon the subject, d o

a ll

lean upon and support themselves b y

lord chief justice Holt's opinion in the case o f

Kendall and Rowe.

I will therefore fairly state all that I have been able to discover touching thematter; and then, after I have declared my own opinion, shall leave others to judge for themselves.

In the first place it is proper to observe, that

a privy counsellor cannot derive his authority from the statute o

Westminster the first; which recites a

arrest b y

the command o f

the king to b

one o f

those cases that were irre pleviseable b

the common law. The princi pal commentator upon these words isStaund ford, (Pl. fo

73, b .)

who says, a s

the com mandment o

the king, this is to b e

understood

o f

the commandment o f

his own mouth, o r

of his council, which is incorporate to him, and speaks with the mouth o

the king himself; for otherwise, if you will take these words of

commandment generally, you may say that every Capias in a personal action is the com mand o

the king.” Lambard in his chapter

o f Bailment, where he cites this act o f parlia

ment, gives it the same construction, b y

a l

lowing a commitment b y

the council to b e

within the equity o f

these words, “command

1053] -

Bntick v. Carrington. A. D. 1765. [1054 ment of the king.” (Lamb. Eirenarch, & b. 3, c. 2, p. 335.) Thus far, and no further, did the crown lawyers in the third of king Charles the first endeavour to extend the text of the law; and it is plain from the cases before cited, that the judges inqueen Elizabeth's time were of the same opinion, that the argument could not be extended in favour of the single counsellor; because they held, that he is bound to shew the cause upon his warrant, as distinguished from the other warrants, where thev admit the cause need not be shewn. #. is not then entitled by this statute, is he empowered by the common law They, who contend he is

would d o

well to shew some authority in proof o

their opinion. It is clear,

h e is not numbered among the conservators.

It is as clear, that he is not mentioned b y

any book a

one o f

the ordinary magistrates o fjus.

tice with any such general authority. The first place, in which any thing o

f this

kind is to b e found, is in the year-book o f

Henry the sixth, where the sheriff returns a detainer under the warrant of ‘duos de con silio pro rebus regem tangentibus.” This proof has a

n unlucky defect in it ;

because the reading

is doubtful, the word dnos as it iswritten stand ing as well for dominos, as for duos ; so that till the reading is settled, which is beyond my skill, the authority must be suspended. The next time you meet with a privy coun sellor in the light o

f amagistrate is in the first

o f

Edward the sixth, chap. 12, s. 19, where wne o

the privy council is empowered to take the accusation in some new treasons therein mentioned; and h

is for this purpose joined with the justice o

assize and justice o f

the peace. The like power is given to him b

the 5th and 6th o

the same king, c. 11, s. 10, in a

like case; and 1 find in Kelyng, p .

19, that when the judges met to resolve certain points before the trial o

the Regicides, they resolved, that a confession upon examination before a

privy counsellor, though h e

b e

not a justice o f

the peace, is a confession within the meaning of the statute of the 5th and 6th of Edward the 6th. That act o

f parliament in the twelfth section had provided, that n

o person should b e

attainted o f

treason, but upon the testimony

o f

two lawful accusers, unless the said party arraigned should willingly without violence confess the same.

It seems to me, that the ground upon which the judges proceeded in this resolution, was the express power given to the privy council in the clause nextbut one before that just mentioned, where the act enables them to take the accu sation in the new treasons there mentioned.

Whether they reasoned in that way, o rwhe

ther they conceived that the power there given was a proof o

some like power which they en joyed to take accusation in the case o f

treasons

a t

the common law, the book has not explained;

so that hitherto this authority in the case o f high treason stands upon a very poor foundation, being in truth n

more than a conjecture o f

law without authority to support it .

The next authorities are the cases already recited in Leonard, which to the present point prove nothing more than this; that the judges

d o

admit a power in a privy counsellor to com-- mit without specifying in what cases. They demand the cause, and a better return ; where upon si

Francis Walsingham, instead o f rely

ing upon his power a s privy counsellor, returns

a new warrant signed b y

the whole board. Two years after this came forth that famous resolution o

a ll

the judges, which is reported

in 1 Anderson 297, 34th o f

Elizabeth. There

is n o

occasion to observe, how arbitrary the prerogative grew, and how fast it increased to wards the end o

this queen's reign. It seems

to me, a s if the privilege claimed b y

the king’s personalº and from him derived to the council-board, b

construction, had some-how

o r

other been adopted b y

every individual o f

that board; for in fact these warrants became

so frequent and oppressive, that the courts o f

justice were obliged a t

last to interpose.

However they might b e

overborne b y

the terror o

the king's special command either in

o r

out o f council, they had courage enough to

resist the novel encroachments o f

the separate members; and therefore they did in the courts

o f King's-bench and Common Pleas set a t

largemany persons so committed; upon which occasion a question being put to the judges, to

specify inwhat cases the prisoner was to b e re

manded, they answer the question with a re monstrance o

their own against the illegalwar rants granted b

the privy counsellors. The preamble relates entirely to these commitments,

wherein they desire, that some good order may

b e taken, that her highness's subjects may not

b e

committed o r

detained in prison b y

com mandment o

f any nobleman, against the laws of the realm. The question is this: Inwhat cases prisoners sent to custody b y

her majesty, her council, o r any one o r

more o f

her council, are to b ede tained in prison, and not to b e

delivered b y

her majesty's courts o

r judges.

The answer is ,

“We think, that ifany per son b

committed b y

her majesty’s command from her person, o

r b y

order from the council board, o

r if any one or two of her council com mit one for high treason, such persons so in

the case before committed may not b e

delivered

b y

any o f

her courts without due trial b y

the law and judgment o

facquittal had. Neverthe less the judges may award the queen's writs to

bring the bodies o f

such persons before them ;

and if upon return thereof the causes of their commitment b

certified to the judges, a s it

ought to be, then the judges in the cases be fore ought not to deliver him, but to remand the prisoner to the place from whence h

came ; which cannot conveniently b e done, un

less notice o f

the causes in generality, o r

else... be given to the keeper or gaoler thatshall have the custody of such prisoner.” There is a studied obscurity in this opinion, which shews, how cautious the judges were obliged to b

in those dangerous times; for

1055] 6GEORGE III. [1056The Case of Seizure of Papers— whether they meant to acknowledge a general power in the king or his council to commit, as distinguished from a special power in one or more of his council to commit, only in the case of high treason; or whether this case of high treason is to be referred to a

the commit ments a

the only unbailable case; o r again,

whether in the superior commitment, by the royal person o

his council, they would deliver the prisoner though n

cause was specified; o r

if one of the council committed for offences below high treason where they declare they would not remand, yet whether they would a

solutely discharge o r only upon bail; is alto

gether either ambiguous o r

uncertain.

It is evident to me, that the judges did not intend to b

understood touching these matters;

, and the only propositions, that are clearly laid down in this resolution, are these. -

Z First, that they would never remand upon /the counsellor's commitment but i

n high-trea son,

Secondly, that the cause ought to b e

shewed in all cases.

This resolution grew to be much agitated afterwards in the third o

Charles the first, and had the honour, like other dark oracles, to

be cited on both sides.

Thus much it was necessary to observe upon this famous opinion ; because itwas upon this opinion, that lord chief justice Holt principally relied. A

this time it is apparent, that all the privy counsellors exercised this right in com mon. Whatever it was, the complaint shews,

it was a general practice, and a privilege en joyed b

a ll

the members o f

that board; from whence it is natural to suppose, that if the power was well founded, the same practice would have continued to this time in the same way, seeing how tenacious a

men are o f

those things that are called rights and privileges. Instead o

this it doth not appear, that the council from that aera have ever asserted their rights; and now a

t last, when the secretary o f

state has revived the claim, for the common benefit, a

s it should seem, o f

the whole body,

n o

other person has followed this example, o r

kuows to thismoment that he is entitled to such right. Any body who considers what the con sequence must have been from these determina tions o

the judges, might venture to affirm,

that the privy counsellor's warrant from this period ceased and grew out o

f use; for a s

the cause in this case was necessary to b

e specified,

and the prisoner was never to b e

remanded but

in the case o f high treason, that warrant be

came a t

once unserviceable, and the crown was

forced to resort to the royal mandate o r

the board-warrant, which, notwithstanding the case

in Anderson, was still insisted to be unbailable and good without a cause. Hence happened, that in the great debate in

the third o f king Charles the first, n o privy counsellor's warrants d

once occur; but in stead thereof you find the secretary o

state dealing forth the king's royal mandate, and the privy counsellor's authority a

rest.

The only reason, why I touch upon these proceedings, is for the sake o

f observing, that

n o

notice is taken in those arguments of the privy counsellor's right to commit; and yet the power o

the king himself, and o f

his coun cil, b

the statute o f

Westminster the first, is

largely discussed, and so fully handled, that if

the warrant o f

one privy counsellor had then been in use, itmust have been brought forth in

the argument; for if it could have served no other purpose, it would have beenmaterial, in

order to mark the distinction between that and the warrant of the whole board. From these observations I conclude, that these warrants were then deceased and gone, and would probably have never made their ap pearance again even in description, if the bill in

the 16th o f

Charles the first, c. 10, had not recalled them to memory, not a

s things either then in use o

admitted to b e legal, but a s

one

o f

the modes o f

commitment which might b e

again revived, because it had been formerly practised.* Therefore when this form o

war rant appears, a

it does in the catalogue o f

other forms, both legal and illegal, n o argu

ment can b e

raised from a pretended recogni tion o

this particular warrant; since it was necessary to name every mode, that ever had been used b

the king, the council, o r

theStar Chamber, in order to make the remedy b

Habeas Corpus universal. - But if there can be a doubt, whether this act o

parliament is to b e

deemed a recognition

o f

this authority, there is a passage in the Journal o

the House o fCommons, that proves

the contrary in direct terms. Whilst this bill was passing, the House makes a

n amendment, which appears b y

the question put to b e this, whether the House

should assent to the putting the word “liberties' out of the bill.

But as the passage in the bill is not mentioned

in the Journals, it must b e

collected b y

infer ences. By the phrase ‘left out o

the bill, I’ presume it was permitted to stand in the pre amble. Now whenyou look into the preamble, the word “liberties’ is there to be found in that part o

the preamble which recites this usurpa

tion o f

the privy council upon the liberties,

a s

well a s

the properties o f

the subject; where

a s

the enacting clause condemns only the juris diction o

that board, so far a s itassumed a juris

diction over the property o f

the subject; from whence I collect that the word “liberties' stood

in that clause; and the passage that follows in

the Journal does strongly confirm it .

The words are these: “Resolved upon the question, that this House does assent to the putting the word “liberties’ out o

the bill con cerning the Star-Chamber and Council plead ings; because the House has a bill to b

drawn

to provide for the liberty o f

the subject in a

large manner. Mr. Serjeant Wild and Mr. Whitelock are appointed to draw a bill to that

* See Leach's Hawkins's Pleas o f

the

Crown, book 2 , c . 15, s. 71.

3 .

1057] A. D. 1765. [1053Entick v. Carrington.

urpose upon the several points that have beenF. this day debated. “Resolved upon the question, that the body of the lords of the... nor anv one of them in particular as a privy-counsellor, has any power to imprison any free-born subject, ex cept in such cases as they are warranted by the statutes of the realm.”

It is pretty plain from this passage, that the debate turned upon the meaning of the statute ofWestminster the first, and the resolution of the judges in Anderson, about which it is not

fi t to give ". opinion; my design b y

citing

this passage being only to shew, that this act

o f

parliament does not even prove the actual practice o

such warrants a t

that time, much less does recognize their legality. What follows is still more remarkable touch ing this business, upon a doubt started in the trial o

the Seven Bishops.” They were com mitted b

a warrant signed b y

n o

less than thirteen privy counsellors; but the warrant did not appear to b

e signed b y

them in council. The objection taken was, that the warrant was void, being signed only b

theº counsellors separately, and not in a body. Ifanyman

in Westminster-hall a t

that time had under stood, that one o

more privy counsellors had

a right to commit for a misdemeanour, that would have been a flat answer to the objection;

but they are so far from insisting upon this, that a

the king’s counsellors, a s

well a s

the Court, do admit the warrant would have been void, if it could be taken to be executed b

them out ofcouncil. The solicitor-general upon that occasion cites the 16th o

Charles the first, which sta tute is produced and read, and yet n

oargument

is taken from thence to prove the authority o f

the separate lords, though the act is before them. Mr. Pollexfen in the course of the de bate says, “We do al

pretty well agree, for “aught I can perceive, in two things. We do

“not deny, but that the council-board has power “to commit. They on the other side do not “affirm, that the lords o

the council can com

*mit out of the council.

* Attorney General. Yes, they may as jus

• tices o f

the peace.

* Pollexfen. This is not pretended to be so

here.

* L . C . J. No, no, that is not the case.”

The Court a t

last got rid o f

the objection, b y

resuming the warrant to have been executed in council. There cannot b

e a stronger authority than

this I have now cited fo r

the present purpose. The whole body o

the law, if Imay use the phrase, were a

s ignorant a t

that time o f a privy

counsellor’s right to commit in the case o f a

libel, a s

the whole body o fprivy counsellors are

a t

this day. The counsel on both sides in that cause were the ablest o f

their time, and few times have produced abler. They had been concerned in

* See this Case, vol. 12, p .

183.

vol. xix.

a ll

the state-cases during the whole reign o f

king Charles the second, o n

one side o r

the other 3

and to suppose that a ll

these persons

could b e utterly ignorant o f

this extraordi nary power, if it had been either legal or

even practised, is a supposition not to b emain

tained.

This is the whole that I have been able to

find, touching the power o f

one o r

more privy counsellors to commit; and to sum

. the whole of this business in a word it standsthus: The two cases in Leonard do pre-supposesome power in a privy counsellor to commit, without saying what ; and the case in Anderson doesº recognize such a power in high treason: butwith respect tohis jurisdiction in other offences, I do not find it was either claimed or

exercised.

In consequence o f a ll

this reasoning, I am forced to deny the opinion o

f my lord chief jus tice Holt to b

e law, if it shall be taken to ex tend beyond the case o

f high treason. But there is n

o necessity to understand the book in

a more general sense; nor is it fair indeed to

give the words a more large construction: for

a s

the conclusion ought always to be grounded

o n

the premisses, and the premisses are confined

to the case o f high treason only, the opinion

should naturally conform to the cases cited, more especially a

s the case there before the

Court was a case o f high treason, and they

were under n o necessity to lay down the doc

trine larger than the case required.—Now whereas it has been arguel, that if you admit

a power o f committing in high treason, the

power o f committingin lesser offences follows a

fortiori; I beg leave to deny that consequence, for I take the rule with respect to al

l special

authorities to b e directly the reverse. They

are always strictly confined to the letter; and when I see therefore, that a special power in any single case only has been permitted to a person, who in n o

other instance is known o r

recorded b y

the common law a s a magistrate, I

have n o right to enlarge his authority one step

beyond that case. . Consider how strange it

would sound, if I should declare at once, that every privy counsellor without exception is in vested with a power to commit in a

offences without exception from high treason down to

trespass, when it is clear that h e is not a con

servator. Itmight be said o f

me, “he should have explained himself a little more clearly, and told u

where h e

had found the description

o f so singular a magistrate, who being n o

con servator was yet in the nature o

f a conservator.”

I have now finished all I have to say upon this head; and am satisfied, that the secretary

o f

state hath assumed this power a s a transfer,

I know not how, of the royal authority tohim self; and that the common law o

f England knows n

such magistrate. A t

the same time I

declare, wherein my brothers d o

a ll agree with

me, that we are bound to adhere to the deter mination o

the Queen against Derby, and the King against Earbury ; and I have no right to

3 Y

1059] 6GEORGE III. [1060The Case of Seizure of Papers— overturn those decisions, even though itshould be admitted, that the practice, which has sub sisted since the Revolution, had been erroneous in its commencement. .

The secretary of state having now been con sidered in the two lights ofsecretary and privy counsellor, and likewiseas the substitute of the royal mandate; in the two first he is clearly no conservator; in the last, if he can be sup posed to have borrowed the right of conserva torship from the sovereign himself, yet no one will argue or pretend, that so great a persou, one so high in authority, can be deemed a jus tice of the peace within the equity of the 24th of Geo. 2. However, I will for a time admit the secre tary of state to be a conservator, in order toexa mine, whether in that character he can be within the equity of this act.

Second Question.

Upon this question, I shall take into con sideration the 7th of James 1, c. 5, because, though it is not material upon this record to determine, whether the special evidence can be admitted under the general issue of not guilty, the defendant having in this instance justified; yet as that act ismade in effdem materić, and for the benefit of the same persons, the rule of construction observed in that will in greatmea sure be an authority for this. The 24th of Geo. 2 is entitled, “An Act for * the rendering justices of the peace more safe “in the execution of their offices, and for indem ‘nifying constables and others acting in obe ‘dience to their warrants.” The preamble runs thus: “Whereas justices of the peace are “discouraged in the execution of their offices, “by vexatious actions brought against them, * for o

b y

reason o f

small and involuntary ‘errors in their proceedings; and whereas it

“is necessary that they should be, as far as is

* consistent, with justice and the safety and li

‘berty o f

the subjects over whom their autho ‘rity extends, rendered safe in the execution

* o f

the said office and trust; and whereas it is

‘ also necessary, that the subject should be

“protected from a ll

wilful and oppressive abuse

* of the several laws committed to the care and “execution o

the said justices o f peace.” Then

comes the enacting part.

The only granter o f

the warrant in the en acting part, a

well a s

the preamble, is the jus tice o

the peace. The officers, as they are described, are constables, headboroughs, and other officers o

r persons acting b y

their or der, o

r in their aid. If any person acting in

obedience to such warrant, and producing the said warrant upon demand, is afterwards pro secuted for such act, the statute says, h e

shall b e acquitted, upon the production o f

such warrant. The counsel for the defen dants say, the secretary and the messengers are both within the equity o

this act. The first is a justice o

the peace, because h e is a

conservator. If so the latter is his officer, which I will admit. The proposition then is

that conservators are within the equity o f

this act. They are clearly not within the letter; for justice and conservator are not convertible terms; and though it should b

e admitted, that

a justice o f

the peace is still a conservator, yet

a conservator is not a Justice. The defendants have argued upon two rules

o f

construction, which in truth are but one. First, where in a general act a particular is

put a s

a n example, a ll

other persons o f

like de scription shall b

e comprized.

Secondly, where the words of a statute enact

a thing, it enacts a ll

other things in like degree.

n Plowden 37, and 167, and 467, several cases are cited as authorities under these rules

o f construction; as, that the bishop o f

Nor wich in one act shall mean a

ll bishops; that the warden o

the Fleet shall mean a ll gaolers;

that justices o f a division mean a ll justices o f

the county a t large, that guardian in socage

after the heir's attaining fourteen, shall b e a

bailiff in account ; that executors shall include administrators, and tenant for years a tenant for one year o

r any less time; with several other instances to the like purpose.

In the first place, though the general rule b e

true enough, that where it is clear the person o r thing expressed is put b y

way o f

example,

the judges must fi ll u p

the catalogue; yet we ought to be sure, from the words and meaning

o f

the act itself, that the thing o r person is

really inserted a s

a n example.

This is a very inaccurate way o f

penning a

law; and the instances o f

this sort are scarce

ever to b e found, except in some o f

the old acts o

parliament. And wherever this rule

is to take place, the act must b e general, and

the thing expressed must b e particular; such

as those cases of the warden of the Fleet and

the bishop o f

Norwich: whereas the act before

u s is equally general in a ll

it s parts, and re quires n

addition o r supply to give it the full effect. Therefore if this way of arguing can

b e

maintained b y

either o f

the rules, itmust fall under the second, which is

that where the words o

f a statute enact a thing, it enacts a ll

other things in likeº:In all cases that fall within this rule, there must b

e a perfect resemblance between the per

sons o r things expressed and those implied.

Thus for instance, administrators are the same thing with executors; tenant for half a year and tenant for years have both terms for a

chattel interest, differing only in the duration

o f

the term ; and so o f

the rest, which I need not repeat one b

one: and in a ll

these cases,

the persons o r things to b e implied are in a ll

respects the objects o f

the law a s

much a s

those expressed. Does not every body see from hence, that you must first examine the law be fore you can apply the rule o

construction f

For the law must not be bent b y

the construction,

but that must b e adapted to the spirit and sense

o f

the law. The fundamental rule then, by which all others are to b

e tried, is laid down in

Wimbish and Tailbois, Plowden 57, 58, acº

1061] A. D. 1765. [1062Entick v. Carrington. cording to which the best guide is to follow the intent of the statutes. Again, according to Plowden, p. 205 and 231, the construction is to be collected out of the words according to the true intent and meaning of the act, and the intent of the makers may be collected from the cause or necessity of making the act, or by foreign circumstances. Let us try the present case by these rules; and let the justice of the peace stand for amo ment in this act as a magistrate at large; and then compare him as he is here described with the conservator.

The justice here is a magistrate intrusted with the execution of many laws, liable to actions for involuntary errors, and actuallydis couraged by vexatious suits; in respect of which perilous situation he is intended to be rendered more safe in the execution of his office.—He is besides a magistrate, who acts by warrant directed to constables and other officers, namely, known officers who are bound to execute his warrants. Now take the conservator.—He is intrusted with the execution of no laws, if the word ‘law” is understood to mean statutes, as I apprehend it is.—He is liable to no actions, because he never acts; the keeping of the peace being so completely transferred to and so engrossed by the justice, that the name of conservator isal most forgot. He is far from being discouraged by actions. No man ever heard of an action brought against a conservator as such ; unless you will call a constable a conservator, which will not serve the present purpose, because these persons can hardly be deemed justices within the act.--Again, how does it appear, that the conservator could either grant a war. rant like the present, or command a constable to execute it * These powers are at least very doubtful; but I think Imay take it for granted, that the conservator could not command a messenger of the king's chamber. Did then this act of parliament refer toma gistrates of known authority and daily emF. or to antiquated powers and personsnown to have existed by historical tradition only P Did it mean to redress real grievances, or those that were never felt P ‘Ad ea, qual “frequenter accidunt, jura adaptantur.” From this comparison it may appear, how little there is to drag the conservator into the law,who hardly corresponds with the justice of the peace in any one point of the description. But further, it is unfortunate for the conser vators upon this question, that one half of them are the objects of the statute by name, as constables, &c. and yet not one of their acts as conservators is within the provision. And now give me leave to ask one question. Will the secretary of state be classed with the higher or the lower conservator? If with the higher, such as the king, the chancellor, &c. he is toomuch above the justice to be within the equity. Ifwith the lower, he is to

much below him. And as to the sheriff and the coroner, they cannot be within the law; be

cause they never grant such warrants a s

these.

S o

that a t last, upon considering a ll

the conser vators, there is not one that does not stand

most evidently excluded, unless the secretary

o f

state himself shall b e excepted. -

But if there wanted arguments to confute this pretension, the construction that has pre vailed upon the seventh o

James the first, would decide the point. That is a

act o f

like kind to relieve justices o

the peace, mayors, constables, and certain other officers, in trouble some actions brought against them for the legal execution o

their offices; who are enabled

b y

that act to plead the general issue. Now that law has been taken so strictly, that neither church-wardens, nor overseers, were held to

b e

within the equity o f

the word “constables,” although they were clearly officers, and acted under the justice's warrants. Why? Because that act, being made to change the course o

the common law, could not b e

extended be yond the letter. If then that privilege of

giving the special matter in evidence upon the general issue is contrary to the common law, how much more substantially is this act a

n in novation o

the common law, which indemnifies the officer upon the production o

the warrant, and deprives the subject o

his right o f

action?

It is impossible, that two acts ofparliament can b

more nearly allied o r

connected with one another, than that o

f 2 4 George 2 ,

and the 7th o

James 1. The objects in both are the same, and the remedies are similar in both, each

o f

them changing the common law for the be nefit o

the parties concerned. The one, in

truth, is the sequel o r

second part o f

the other. The first not being an adequate remedy in case

o f

the several persons therein mentioned, the second is added to complete the work, and to

make them a s

secure a s they ought to b e

made from the nature o f

the case. If by a contrary construction any person should b e

admitted into the last that are not included in that first,

the person, whoever h e is ,

will b e

without the privilege o

f pleading the general issue, and giving the special matter in evidence, which the latter would have certainly given b

ex press words, if the parliament could have ima gined h

was not comprized in the first. Upon the whole, we are a

o f

opinion, that neither secretary o

state, nor the messenger,

are within the meaning o f

this act o f parlia

ment. -

Third Question.

But if they were within the general equity, yet it behoved the messenger to shew, that they have acted in obedience to the warrant; for it is upon that condition, that they are inti tled to the exemption o

the act. When the legislature excused the officer from the perilous

task o f judging, they compelled him to a n im

plicit obedience; which was but reasonable: so

that now he must follow the dictates of his warrant, being n

o longer obliged to inquire, whether his superior had o

had not any juris diction. The late decision o

the Court o f

1063] 6GEORGE III. [1064The Case of Seizure ofPapers— King's-bench in the Case ofGeneral Warrants" was ruled upon this ground, and rightly de termined.

This partof the case is clear, and shall be dispatched in very few words. First, the defendants did not take with them a constable, which is a flat objection. They had no business to dispute either the propriety

or the legality of this direction in the execution of the warrant; nor have their counsel an right to dispute it here in their behalf. They can have no other plea under this act of par liament, than ignorance and obedience. Secondly, they did not bring the papers to the earl of Halifax, to be examined according to the tenor of the warrant, but to Mr. Lovell Stanhope. This command ought to have been literally pursued ; nor is it any excuse to sa now, as they do in their plea, that Mr. Lovell Stanhope was an assistant to the earl of Hali fax. If he is a magistrate, he can have no as sistant, nor deputy, to execute any part of that employment. The right is personal to himself, and a trust that he can no more delegate to another, than a justice of the peace can trans fer his commission to his clerk.

I shall say no more upon this head. But I canuot help observing, that the secretary of state, who has not been many years intrusted with this authority, has already eased himself of every part of it

except the signing and seal ing the warrant. The law clerk, as he is called, examines both persons and papers. He backs

o r discharges. This is not right. I could wish

for the future, that the secretary would dis charge thispart o

his office in his own person.

Fourth AND Last Question.

The question that arises upon the special -verdict being, now dispatched, I come in my last place to the point, which is made b

the justification; for the defendants, having failed

in the attempt made to protect themselves b y

the statute o f

the 24th o f

Geo. 2 ,

are under a

necessity to maintain the legality o f

the war rants, under which they have acted, and to shew that the secretary o

state in the instance now before us, had a jurisdiction to seize the defen dants' papers. If he had no such jurisdiction, the law is clear, that the officers are a

much

“Fº for the trespass as their superior.his, though it is not the most difficult, is

themost interesting question in the cause; be cause if this point should be determined in fa

vour o f

the jurisdiction, the secret cabinets and bureaus o

every subject in this kingdom will

b e

thrown open to the search and inspection o f

a messenger, whenever the secretary o f

state shall think fi

t to charge, o r

even to suspect, a

person to b e

the author, printer, o r publisher o f

a seditious libel.

The messenger, under this warrant, is com manded to seize the person described, and to

bring him with h is papers to b e

examined be

* Money and others against Leach, Mich.

6 Geo. 8 ,

ante, p .

1002, -

fore the secretary o f

state. In consequence o f

this, the house must b e searched; the lock and

doors o f

every room, box, o r

trunk must b e

broken open; a ll

the papers and books without exception, if the warrant be executed according

to it s

tenor, must b e

seized and carried away; for it is observable, that nothing is left either to

the discretion o r

to the humanity o f

the officer. This power so assumed b

the secretary o f

state is a n

execution upon a ll

the party's papers,

in the first instance. His house is rifled; his most valuable secrets are taken out o

his pos session, before the paper for which h

e ischarg

e d is found to b e

criminal b y

any competent jurisdiction, and before h

is convicted either

o f writing, publishing, o r being concerned in

the paper.

This power, so claimed b y

the secretary o f

state, is not supported b y

one single citation from any law book extant. It is claimed by

n o

other magistrate in this kingdom but him self: the great executive hand o

criminal jus tice, the lord chief justice o

the court o f

King's-bench, chief justice Scroggs excepted, never having assumed this authority. The arguments, which the defendants’ coun sel have thought fi

t to urge in support o f

this practice, are o

this kind. That such warrants have issued frequently since the Revolution, which practice has been found b

the special verdict; though I must observe, that the defendants have n

o right to

avail themselves o f that finding, because n o

such practice is averred in their justification. That thecase of the warrants bears a resem blance to the case o

search for stolen goods. They say too, that they have been executed without resistance uponº printers, booksellers, and authors, who have quietly sub mitted to the authority; that n o

action hath hitherto been brought to try the right; and that although they have been often read upon the returns ofi. Corpus, yet no court of justice has ever declared them illegal.

And it is further insisted, that this power is

essential to government, and the only metns o f

quieting clamours and sedition. These arguments, if they can be called ar guments, shall b

a ll

taken notice of; because upon this question I am desirous of removing every colour o

r plausibility. Before I state the question, it will be neces sary to describe the power claimed b

thiswar rant in its full extent.

If honestly exerted, it is a power to seize that man's papers, who is charged upon oath

to b e

the author o r publisher o f a seditious

libel; if oppressively, it acts against every man, who is so described in the warrant, though h

b e

innocent.

It is executed againt the party, before he is

heard o r

even summoned; and the information,

a s

well a s

the informers, is unknown.

It is executed b y

messengers with o r

with out a constable (for it can never b

e pretended,

that such is necessary in point o f

law) in the presence o

the absence o f

the party, a s

the

1065] A. D. 1765. [1066Entick v. Carrington. messengers shall think fit, and without a wit ness to testify what passes at the time of the transaction ; so that when the papers are gone, as the only witnesses are the trespassers, the party injured is left without proof.” If this injury falls upon an innocent person, he is as destitute of remedy as the guilty ; and thewhole transaction is so guarded against dis covery, that if the officer should be disposed to carry off a bank-bill, he may do it with impu nity, since there is no man capable ofproving either the taker or the thing taken. Itmust not be here forgot, that no subject whatsoever is privileged from this search ; be cause both Houses of Parliament have re solved, that there is no privilege in the case ofa seditious libel.

Nor is there pretence to say, that the word • papers' here mentioned ought in point of law to be restrained to the libellous papers only. The word is general, and there is nothing in the warrant to confine it; nay, I am able to affirm, that it has been upon a late occasion executed in its utmost latitude: for in the case ofWilkes against Wood, when themessengers hesitated about taking a

the manuscripts, and sent to the secretary o

state formore express orders for that purpose, the answer was, “that allmust be taken, manuscripts and all.” Ac cordingly, a

was taken, and Mr. Wilkes's private pocket-book filled u

the mouth o f

the sack.

1 was likewise told in the same cause b y

one

o f

the most experienced messengers, that h e

held himself bound b y

his oath to pay a n im

plicit obedience to the commands o f

the secre tary o

f state; that in common cases h e

was contented to seize the printed impressions o

the papers mentioned in the warrant; but when h

received directions to search further,

o r to make a more general seizure, his rule

was to sweep all. The practice has been cor respondent to the warrant. Such is the power, and therefore one should

* “If a private person suspect another of

felony, and lay such ground o f suspicion before

a constable, and require his assistance to take him, the constable may justify killing the party

if he fly, though in truth he were innocent. But in such case, where no hue and cry is

levied, certain precautions must be observed :

1 . Theparty suspecting ought to b e present; for

thejustification is ,

that the constable did aid him

in taking the party suspected. 2.The constable ought to b

informed o f

the grounds o fsuspicion,

that h emay judge o f

the reasonableness o f it .

From whence it should seem that there ought

to b e a reasonable ground shewn for it :

other wise it would be immaterial whether such in formationwere given to the constable o r not,

a s to the point o f

his justification. And itwas formerly supposed to b e necessary, that there should have been a felony committed in fact, o f

which the constable must have been ascer.

tained a t

his peril.” East's Pleas o f

the Crown, ch. 5

, s. 69. -

naturally expect that the law to warrant it

should b e

clear in proportion a s

the power is

exorbitant.

If it is law, it will be found in our books.

If it is not to be found there, it is not law. The great end, for which men entered into society, was tº secure their property. That right is preserved sacred and incommunicable

in all instances, where it has not been taken away o

r abridged b y

some public law for the good o

the whole. The cases where this right o

property is set aside b y

positive law, are various. Distresses, executions, forfei tures, taxes, &c. are a

o f

this description; wherein every man b

common consent gives

u p

that right, for the sake o f justice and the

general good. By the laws o f England, every

invasion o f

private property, b e it ever so mi

nute, is a trespass. No man can set his foot upon my groundwithout my licence, but h

e is

liable to a n action, though the damage b eno

thing; which is proved b y

every declaration in

trespass, where the defendant is called upon to

answer for bruising the grass and even tread ing upon the soil. If he admits the fact, he is

bound to shew b y

way o f justification, that

some positive law has empowered o r

excused hium. The justification is submitted to the judges, who are to look into the books; and if

such a justification can b e

maintained b y

the text o

the statute law, o r b y

the principles o f

common law. Ifno such excuse can be found

o r produced, the silence o f the books is a

nau thority against the defendant, and the plaintiff must have judgment. According to this reasoning, it is now in cumbent upon the defendants to shew the law,

b y

which this seizure is warranted. If that cannot b

e done, it is a trespass. Papers are the owner's goods and chattels: they are his dearest property; and are so far from enduring a seizure, that they will hardly bear a n inspection ; and though the eye cannot

b y

the laws o f England b e guilty o f a trespass, yet where private papers are removed and car ried away, the secret nature o

those goods will

b e

a n aggravation o f

the trespass, and demand more considerable damages in that respect.

Where is the written law that gives any magis trate such a power? I can safely answer, there

is none; and therefore it is too much for us without such authority to pronounce a practice legal, which would b

subversive o f

a ll

the comforts o

society.

But though it cannot be maintained b y

any direct law, yet it bears a resemblance, a

was urged, to the known case o

search and seizure for stolen goods.

I answer, that the difference is apparent.

In the one, I am permitted to seize my own goods, which are placed in the hands o

f a pub

li c officer, till the felon's conviction shall intitle

me to restitution. In the other, the party's own property is seized before and without con viction, and he has n

o power to reclaim his goods, even after his innocence is cleared by acquittal.

1067] 6GEORGE III. [1068The Case ofseizure of Papers— The case of searching for stolen goods crept into the law by imperceptible practice. It is the only caseof the kind that is to be met with. No less a person than my lord, Coke (4 Inst. 176,) denied it

s legality; and therefore if the two cases resembled each other more than they do, we have n

o right, without a n

act o f parlia

ment, to adopt a new practice in the criminal law, which was never yet allowed from a

llan tiquity. Observe too the caution with which the law proceeds in this singular case.—There must b

a full charge upon oath o f a theft committed.

—The owner must swear that the goods are lodged in such a place.—He must attend a

the execution of the warrant to shew them to

the officer, who must see that they answer the description.—And, lastly, the owner must abide the event a

his peril: for if the goods are not found, h

e is a trespasser; and the o f

ficer being a n

innocent person, will b e always

a ready and convenient witness against him.* On the contrary, in the case before u

s no thing is described, nor distinguished : n

o charge is requisite to prove, that the party has any criminal papers in his custody: n

o person present to separate o

select: n o person to

prove in the owner's behalf the officer's misbe haviour.—To say the truth, h

cannot easily misbehave, unless h

e pilfers; for h e

cannot takemore than all. If it should be said that the same law which has with somuch circumspection guarded the case o

stolen goods from mischief, would like wise in this case protect the subject, b

adding proper checks; would require proofs before hand; would call u

the servant to stand b y

and overlook; would require him to take a n

exact inventory, and deliver a copy: my an swer is

that a ll

these precautions would have been long since established b

law, if the power itself had been legal; and that the want o

them is a n

undeniable argument against the le

gality o f

the thing.

What would the parliament say, if the judges should take upon themselves tomould

a n

unlawful power into a convenient authority,

b y

new restrictions? That would be, not judg ment, but legislation.

I come now to the practice since the Revo lution, which has been strongly urged, with this emphatical addition, that a

n usage tolerated from the aera o

f liberty, and continued down wards to this time through the best ages o

the constitution, must necessarily have a legal

commencement. Now, though that pretence can have n

o place in the question made b y

this plea, because n

such practice is there alleged; yet Iwill permit the defendant fo

the present

toborrow a fact from the special verdict, for the sake o f giving it a n

answer.

If the practice began then, it began too late

to b e

law now. If it was more ancient, the Revolution is not to answer for it

;

and I could

*See Leach's Hawkins's Pleas o f

theCrown, book 2

c . 13, s. 17.

have wished, that upon this occasion the Revo lution had not been considered a

the only basis o

our liberty. The Revolution restored this constitution to

it s

first principles. It did no more. It did not enlarge the liberty o

the subject; but gave

it a better security. It neither widened nor contracted the foundation, but repaired, and perhaps added a buttress o

two to the fabric; and if any minister o

state has since deviated from the principles a

that time recognized,

a ll

that I can say is ,

that, so far from being sanctified, they are condemned b

the Revolu tion.

With respect to the practice itself, if it goes

n o higher, every lawyer will tell you, it is

much too modern to he evidence of the com mon law ; and if it should be added, that these warrants ought to acquire some strength by the silence o

those courts, which have heard them read so often upon returns without censure o

animadversion, I am able to borrow my answer

to that pretence from theCourt o f King's-bench,

which lately declared with great unanimity

in the Case o f

General Warrants, that a s

no ob jection was taken to them upon the returns,

and the matter passed sub silentio, the prece dents were o

n o weight. Imost heartily con

cur in that opinion; and the reason is more pertinent here, because the Court had n

oautho rity in the present case to determine against the seizure o

f papers, which was not before them; whereas in the other they might, if

they had thought fit, have declared the war rant void, and discharged the prisoner e

officio. This is the first instance I have met with, where the ancient immemorable law of the land, in a public matter, was attempted to b

proved b y d .

practice o f a private office. The names and rights o f public magistrates,

their power and forms o f

proceeding a s they

are settled b y

law, have been long since writ ten, and are to b

found in books and records. Private customs indeed are still to b

e sought from private tradition. But whoever conceived

a notion, that any part o f

the public law could

b e

buried in the obscure practice o f a particu

lar person 2

To search, seize, and carry away a ll

the pa pers o

the subject upon the first warrant: that such a right should have existed from the time whereof the memory o

man runneth not to

the contrary, and never yet have found a place

in any. of law; is incredible. But if so

strange a thing could b e supposed, I do not see,

how we could declare the law upon such evi dence.

But still it is insisted, that there hasbeen a

general submission, and n o

action brought to

try the right.

I answer, there has been a submission of

guilt and poverty to power and the terror o f

punishment. But it would bestrange doctrine

to assert that a ll

the people o f

this land are bound to acknowledge that to b

universal law, which a few criminal booksellers have been

afraid to dispute.

4 .

1069] Entick v. Carrington. A. D. 1765. [1070 The defendants upon this occasion have stopped short at the Revolution. But I think it would be material to go further back, in order to see, how far the search and seizure of papers have been countenanced in the antece dent reigns. First, I find no trace of such awarrant as the present before that period, except a very few that were produced the other day in the reign ofking Charles 2. But there did exist a search-warrant, which took its rise from a decree of the Star-Cham ber. The decree is found at the end of the 3d volume ofRushworth’s Collections. Itwas made in the year 1636, and recites an older de cree upon the subject in the 28th of Elizabeth, bywhich probably the same power of search was given. By this decree the messenger of the press was empowered to search in a

ll places, where books were printing, in order to see if the

F. had a licence; and if upon such searchle found any books which he suspected to be libellous against the church o

r state, h e

was to

seize them, and carry them before the proper magistrate.

It was very evident, that the Star-Chamber, how soon after the invention o

f printing I know not, took to itself the jurisdiction over public li-els, which soon grew to be the peculiarbusi ness of that court, Not that the courts of Westminster-hall wanted the power o

f holding pleas in those cases; but the attorney-general for good reasons chose rather to proceed there; which is the reason, why we have n

cases o f

libels in the King's-bench before the Restora tion.

TheStar-Chamber from this jurisdiction pre sently usurped a general superintendance over the press, and exercised a legislative power in

all matters relating to the subject. They ap pointed licensers; they prohibited books; they inflicted penalties; and they dignified one o

their officers with the name o f

the messenger

o f

the press, and among other things enacted this warrant of search. After that courtwas abolished, the press be came free, but enjoyed it

s liberty not above two

o r

three years; for the Long Parliament thought

fi t to restrain it again b y

ordinance. Whilst the press is free, l am afraid itwill always beli centious, and a

ll governments have a n

aversion

to libels. This parliament, therefore, did b y

ordinance restore the Star-Chamber practice; they recalled the licences, and sent forth again the messenger. Itwas against the ordinance, that Milton wrote that famous pamphlet called Areopagitica. Upon the Restoration, the press was#. once more, till the 13th and 14th o

Charles 2 ,

when the Licensing Act passed, which for the first time gave the secre tary o f

state a power to issue search warrants: but these warrants were neither so oppressive, nor so inconvenient a s

the present. The right

to enquire into the licence was the pretence o f

making the searches; and ifduring the search

i. suspected libels were found, they and theyonly could be seized.

This act expired the 32d year o f

that reign,

o r

thereabouts. Itwas revived again in the 1st year o

f king James 2 ,

and remained in force till the 5th o

f king William, after one o f

hispar liaments had continued it for a year beyond it

expiration. -

I do very much, suspect, that the present warrant took its rise from these search-war rants, that I have been describing; nothing being easier, to account for than this engraft: ment; the difference between them being n

more than this, that the apprehension o f

the person in the first was to follow the seizureof papers, but the seizure o

papers in the latter was to follow the apprehension o

the person.

The same evidence would serve equally for both purposes. ..

. If it was charged fo r

printing

o r publishing, that was sufficient for either o f

the warrants. Only this material difference must always b

observed between them, that the search warrant only carried off the criminal papers, whereas this seizes all. When the Licensing Act expired a

the close

o f king Charles 2 's reign, the twelve judges

were assembled a t

the king's command, todis cover whether the press might not be a

sef fectually restrained b

the common law, a s it

had been b y

that statute.

I cannot help observing in this place, that if

the secretary o f

state was still invested with a

power o f issuing this warrant, there was n o

occasion for the application to the judges: for though h

could not issue the general search warrant. yet upon the least rumour o

f a libel

h e might have done more, and seized every

thing. But that was not thought o f,

and there fore the judges met and resolved : First, that it was criminal a

common law, not only to write public seditious papers and false news ; but likewise topublish any news without a licence from the king, though it was true and innocent.

Secondly, that libels were seizable. This is

to b e

found in the State Trials; and because it is

a curiosity, Iwill recite the passages at large.

“The Trial o f

Harris fo r a libel. Scroggs

Chief Justice.

“Because my brethren shall b e

satisfied

with the opinion o f a ll

the judges o f England

what this offence is ,

which they would in sinuate, a

s if the mere selling of books was no

offence; it is not long since that a ll

the judges met b

the king's commandment, a s they did

some time before: and they both times de clared unanimously, that a

ll persons, that d o

write, o r print, o r

sell any pamphlet that is

either scandalous to public o r private persons,

such books may b e seized, and the persons

punished b y

law ; that a ll

books which are scandalous to the government may b

e seized,

and a ll persons so expounding may b e punish

ed: and further, that a ll

writers o f

news, though not scandalous, seditious, nor reflective upon the government o

r state; yet if they arewriters, a

s they are few others, o f

false news, they are indictable and punishable upon that account.” [See vol. 7

, p .

929.]

1071] 6 GEORGE III. [1072The Case of Seizure of Papers— It seems the chief justice was a little incor rect in his report; for it should seem as if he meant to punish only the writer of false news. But he ismore accurate afterwards in the trial of Carre for a libel.

“Sir G. Jefferies, Recorder. All the judges of England having met together to know, whether any person whatsoever may expose to the public knowledge any matter of intelli gence, or any matter whatsoever that concerns

the public, they give it in as their resolution, that no person whatsoever could expose to the public knowledge anything that concerned the affairs of the public, without licence from the king, or from such persons as he thought fi

t to

intrust with that power.”

“Then Scroggs takes u p

the subject, and says, The words I remember are these. When b

the king's command we were to give

in our opinion, what was to b e

done in point o f

regulation o f

the press, we did a ll subscribe,

that to print o r publish any news-books o r

pamphlets, o r any news whatsoever, is ille

gal; that it is amanifest intent to the breach o f

the peace, and they may b e proceeded against

b y

law for a n illegal thing. Suppose now that

this thing is not scandalous, what then? If

there had been n o

reflection in this book a t all,

e t it is illicitè done, and the author ought to

e convicted for it.” [See vol. 7 , p .

1127.]

These are the opinions o f

a ll

the twelve judges o

f England; a great and reverend au thority. Can the twelve judges extrajudicially make

a thing law to bind the kingdom b y a declara

tion, that such is their opinion?—I say No.—It

is a matter o f

impeachment for any judge to

affirm it .

There must b e

a n

antecedent prin ciple o

r authority, from whence this opinion may b

e fairly collected; otherwise the opinion

is null, and nothing but ignorance can excuse the judge that subscribed it

Out o f

this doctrine sprang the famous general search warrant, that was condemned b

the House o f

Commons; and it was not unreasonable to

suppose, that the form o f itwas settled b y

the twelve judges that subscribed the opinion. The deduction from the opinion to the war rant is obvious. If you can seize a libel, you may search for it

: if search is legal, a warrant

to authorize that search is likewise legal: if

any magistrate can issue such a warrant, the chief justice o

the King's bench may clearly do it.

It falls here naturally in my way to ask, whether there b

e any authority besides this opinion o f

these twelve judges to say, that libels may b e

seized If they may, I am afraid, that a ll

the inconveniences o f a general

seizure will follow upon a right allowed to

seize a part. The search in such cases will b e

general, and every house will fall under the ower o

f a secretary o f

state to b e rummaged

fore proper conviction.—Consider for awhile how the law of libels now stands.

Lord Chief Justice Holt and the Court of King’s-bench have resolved in the King and Bear", that h

who writes a libel, though he neither composes it nor publishes, is criminal.

In the 5th Report, 125, lord Coke cites it in

the Star Chamber, that if a libel concerns a

public person, h e

that hath it in his custody ought immediately to deliver it to amagistrate, that the author may b

found out.

In the case o f

Lake and Hutton, Hobart 252, it is observed, that a libel, though the contents are true, is not to be justified ; but the right way is to discover it to some magistrate

o r other, that they may have cognizance o f

the cause.

In 1stVentris 31, it is said, that the having a

libel, and not discovering it to a magistrate, was only punishable in the Star Chamber, un less the party maliciously publish it

But the Court corrected this doctrine in the King and Bear, where it said, though h

never published

it ,

yet his having it in readiness for that pur pose, if any occasion should happen, is highly criminal: and though h

emight design to keep

it private, yet after his death it might fall into such hands a

smight be injurious to the govern ment; and therefore men ought not to b

eal lowed to have such evil instruments in their keeping. Carthew 409. In Salkeld’s report

o f

the same case, Holt chief justice says, if a

libel b e publicly known, a written copy o f it is

evidence o f a publication. Salk. 418.

If all this be law, and l have no right at

present to deny it , whenever a favourite libel

is published (and these compositions are apt

to b e

favourites) the whole kingdom in a month

o r

two becomes criminal, and it would b e diffi

cult to find one innocent jury amongst somany millionsof offenders.

I can find no other authority to justify the seizure o f a libel, than that o f Scroggs and h is

brethren.

If the power of search is to follow the right

o f seizure, every body sees the consequence. He that has it o

has had it in his custody; he that has published, copied, o

rmaliciously re

ported it ,

may fairly b e

under a reasonable suspicion o

f having the thing in his custody, and consequently become the object o

th e

search-warrant. If libels may be seized, it

ought to b e

laid down with precision, when, where, upon what charge, against whom, b

whatmagistrate, and in what stage o f

the pro secution. All these particulars must be ex plained and proved to b

e law, before this gene ral proposition can b

established. As therefore n

o authority in our books can

b e produced to support such a doctrine, and so

many Star-Chamber decrees, ordinances, and acts have been thought necessary to establish

a power o f search, I cannot be persuaded,

that such a power can b e justified b y

the com mon law.

I have now done with the argument, which

* Reported Carth. 407. 1 L. Raym, 414. 12Mod. 299, 2 Salk. 417. 646.

1073] Entick v. Carrington. A. D. 1765. [1074 has endeavoured to support this warrant by the practice since the Revolution. It is then said, that it is necessary for the ends of government to lodge such a power with a state officer; and that it is better to pre vent the publication before than to punish the offender afterwards. I answer, if the legisla tion be of that opinion, they will revive theLi ..censing Act. But if they have not done that, I conceive they are not of that opinion. And with respect to the argument of state neces sity, or a distinction that has been aimed at between state offences and others, the common law does not understand that kind of reason ing, nor do our books take notice of any such distinctions. Serjeant Ashley was committed to the Tower in the 3d of Charles 1st, by the House of Lords only for asserting in argument, that there was a ‘law of state’ different from the common law; and the Ship-Money judges were im peached for holding, first, that state-necessity would justify the raisingmoney without con sent ofparliament; and secondly, that the king was judge of that necessity. If the king himself has no power to declare when the law ought to be violated for reason of state, I am sure we his judges have no such prerogative. Lastly, it is urged as an argument ofutility, that such a search is a means of detecting of fenders by discovering evidence. I wish some cases had been shewn, where the law forceth evidence out of the owner's custody by process. There is no process against papers in civil causes. It has been often tried, but never pre vailed. Nay, where the adversary has by force or fraud got possession of your own proper evidence, there is no way to get it back but by action.

In the criminal law such a proceeding was never heard of; and yet there are some crimes, such for instance as murder, rape, robbery, and house-breaking, to say nothing of forgery and perjury, that are more atrocious than li belling. But our law has provided no paper search in these cases to help forward the con viction.

Whether this proceedeth from the gentle ness of the law towards criminals, or from a consideration that such a power would be more pernicious to the innocent than useful to the public, l will not say. It is very certain, that the law obligeth no man to accuse himself; because the necessary means of compelling self-accusation, falling upon the innocent as well as the guilty, would be both cruel and unjust; and it should seem, that search for evidence is disallowed upon the same principle. There too the innocent would be confounded with the guilty.

Observe the wisdom aswell as mercy of the law. The strongest evidence before a trial, being only er parte, is but suspicion; it is not proof. Weak evidence is a ground of suspi cion, though in a lower degree; and if suspi cion at large should be a ground of search, WOL. XIX.

especially in the case of libels, whose house would be safe?

If ,

however, a right o f

search for the sake

o fdiscovering evidence ought in any case to b e

allowed, this crine above a ll

others ought to

b e excepted, a s wantiug such a discovery less

than any other. It is committed in open day light, and in the face o

the world; everyact o f

publication makes new proof; and the solicitor

o f

the treasury, if he pleases, may be thewit ness himself.

The messenger o f

the press, b y

the very constitution o

his office, is directed to purchase every libel that comes forth, in order to b

e a

Wilness.

Nay, if the vengeance of government re quires a production o

the author, it is hardly possible for him to escape the impeachment o

the printer, who is sure to seal his own pardon

b y

his discovery. But suppose h e

should hap pen to b

e obstimate, yet the publication is stop ped, and the offence punished. By this means the law is satisfied, and the public secured. .

I have now taken notice of everything that has been urged upon the present point; and upon the whole we are a

o f

opinion, that the warrant to seize and carry away the party's papers in the case o

f a seditious libel, is illegal

and void.

Before I conclude, I desire not to be under stood as an advocate for libels. All civilized governments have punished calumny with se verity; and with reason; for these composi tions debauch the manners o

the people; they excite a spirit o

f disobedience, and enervate the authority o

f government; they provoke and excite the passions o

the people against their rulers, and the rulers oftentimes against the people.

After this description, I shall hardly be con sidered a s a favourer o f

these pernicious pro ductions. I will always setmy face against them, when they come before me; and shall recommend it most warmly to the jury always

to convict when the proof is clear. They will

d o

well to consider, that unjust acquittals bring

a n

odium upon the press itself, the consequence

whereof may b e

fatal to liberty; for if kings and great men cannot obtain justice a

their hands b

the ordinary course o f law, they may

a t

last b e provoked to restrain that press, which

the juries o f

their country refuse to regulate. When licentiousness is tolerated, liberty is in

the utmost danger; because tyranny, bad a s

it is , is better than anarchy; and the worst o f

governments is more tolerable than n ogovern

ment a t

all.

[A great change o f

the king's ministers hap pened in the July before the judgment in the pre ceding case; particularly the marquis o

Rock ingham was placed a

the head o f

the treasury. The judgment was soon followed with a reso lution o

the House o fCommons, declaring the

seizure o fpapers in the case o f a libel to b e il

legal. Journ. Com. 22 April, 1766. A t

the same time the Commons passed a resolution

3 Z.

1075] 4–10 GEORGE III. Case of John Wilkes, esq. -

[1076 condemning general warrants in the case of libels. The latter resolution was afterwards extended by a further vote, which included a declaration, that general warrants were uni. versally illegal, except in cases provided for b act of parliament. Journ. Com. 25th April, 1766.-All these resolutions were in conse quence ofMr.Wilkes's complaint of a breach of privilege above two years before. Journ. Com. 15th November, 1763. Two prior at tempts were made to obtain a vote in condem nation of general warrants and the seizure of papers, one in 1764, the other in 1765. Journ. Com. 14th and 17th February, 1764; 29th January, 1765. [See, too, New Parl. Hist.] But they both had miscarried, and one of the reasons assigned for so long resisting such in terposition of the House was the pendency of suits in the courts of law. This objection was in part removed by the solemn judgment of theCommon Pleas against the seizure of pa

pers, and the acquiescence in it .

Whether the question o

general warrants ever received the same full and pointed decision in any o

the courts, it is not in our power a

t present to in form the reader. The point arose on the trial

o f

a n

action b y

Mr. Wilkes against Mr. Wood; and lord Camden in his charge to the jury appears to have explicitly avowed his own opinion o

the illegality o f

general war rants; but what was done afterwards is not stated. How a regular judgment o

the point was avoided, in the case o

error in the King’s- bench between Money and Leach, b

con ceding that the warrant was not pursued, we have observed in a former Note, see p

1028. As to the action, in which Mr. Wilkes finally recovered large damages from the earl o

Halifax, itwas not tried till after the decla ratory vote o

the Commons, which most pro bably prevented a

ll argument o n

the subject. Hargrave.]

542. Proceedings in the Case o f

John WILKEs, esq. on two In formations for Libels, King's-Bench and House o

Lords:

4 GEoRGE III.-10 GEoRGE III. A. D. 1763–1770.

[This Case is wholly extracted from si r

James

Burrow's Reports, 4 Burr. 2527.]

Wednesday, February 7 ,

1770.

As this cause, in the several branches of it,

came several times before the Court, it seemed better to reserve a general account o

f it till a

final conclusion o f

the whole, than to report

the particular parts o f it disjointedly, in order

o f

time a s they were respectively argued and

determined.

In Michaelmas Term 1763, the 4th year of

his present majesty king George the 3d, si r

Fletcher Norton, then his majesty's solicitor general, (the office o

attorney-general being

then vacant,) exhibited a n

information against Mr.Wilkes, for having published, and caused

to b e printed and published a seditious and*il. libel (the North Briton, N° 45.)

And soon after, h e

exhibited another infor mation against him, (the office o

f attorney general still remaining vacant,) for having printed and published, and caused to b

e printed

and published, a n

obscene and impious libel (an Essay o

nWoman, &c.) Mr.Wilkes having pleaded Not Guilty to

both these informations, and the records being

made up and sealed, and the causes * read for trial, the counsel for the crown thought it

expedient to amend them, b y

striking out the word “purport,” and in it s place inserting the word “tenor.’ The proposed amendments were

in a ll

those parts o f

the information where the

* They were tried on the 21st of February, 1704.

charge was, that the libel printed and published

b y

Mr.Wilkes contained matters to the pur port and effect following, to wit:’ which the counsel for the crown thought it advisable to

alter into words importing that such libel con tained matters ‘to the tenor and effect follow ing, to wit.”

Sir Fletcher Norton (then become himself attorney-general) directed Mr. Barlow, clerk

in court for the crown, toapply to a judge for such a n order; apprehending it (as h e after wards publicly declared) to b e a matter o f

course.

Mr. Barlow, in pursuance o f

thesedirections, applied to lord Mansfield, for a summons to

shew cause “why such amendment should not

b e

made.” And his lordship issued a summons

in each cause, dated 18th o f February, 1764,

for the defendant’s clerk in court, agent, at torney o

r solicitor, to attend him a t

his house

in Bloomsbury-square o n Monday the 20th o f

February a t eight o'clock in the morning; to

shew cause why the information should not b e

amended, by striking out the word “purport,”

in the several places where it ismentioned in

the said information, and inserting instead thereof the word “tenor.” N. B. The sum mons in the cause relating to the seditious libel excepted the first place—“except in the first place.”

On notice o f

this summons, Mr. Philips, agent and solicitor for Mr. Wilkes, and Mr. Hughes his clerk in court, and attorney for him upon the record, both attended his lord ship, a

his own house, upon the said 20th o f

February 1764, accordingly, (being now vaca tion time, and n

court sitting;) and did not

1077] A. D. 1763–1770. [1078on two Informations for Libels. object to the proposed amendment: on the contrary, Mr. Hughes, upon being asked as a fair practiser, candidly acknowledged “that it was amendable;' and Mr. Philips acquiesced

peated. He took notice, in it ,

that the re cord was altered, before the trial, b

lordMans field's order: so that h

was tried upon altered facts. This he particularly complained o

a s

in it ,

though h e

said h e

could not t t o it.

Lord Mansfield having, in the presence o f

these gentlemen, consulted and produced many pre cedents, and being fully satisfied “that the amendment might b

e made, and that it might

b e

made b y a single judge a t

his house o r

chambers,’ told Mr. Philips, ‘that there was no

need o f

his consent;’ and immediately made the following order—“Upon hearing the clerks

in court on both sides, I do order that the in formation in this cause b

e amended; b y

strik ing out the word “purport' in the several places where it is mentioned, in the said information, and b

inserting instead thereof the word “tenor.’ Dated this 20th day o

f February 1764.”

The orders in both causes were exactly alike; only that the words ‘ except in the first place' were added in that of the information for the seditious libel.

Mr. Wilkes was at this time in France; whither h

had voluntarily retired some time before, and from whence he did not return till towards the election of members for the new parliament (into which h

was afterwards chosen.) The trial came on at the appointed time, and proceeded in the usual manner; Mr. Wilkes's counsel and agents making n

o objection there. to, hor declining to enter into his defence. Ver dicts were found against him, upon both infor mations: after, which, judgment was duly

:*: against him, in each cause; and writsof Capias were awarded and issued against him, a

in ordinary cases o f

convictions upon

informations for misdemeanours.—Upon his non-appearance, the proceedings were carried on to proclamation and exigents: and upon his notº: on the fifth time of being exacted, he was, by the judgment of the coroners

o f

the county o fMiddlesex, according to the

law and custom o f

the realm, outlawed.

On Wednesday the 20th o f April 1768,

(being the 1st day o f

Easter Term 1768,) soon after the sitting o

the Court, and before any

W. had issued on this outlawry, Mr.ilkes voluntarily made his personal appear ance in it; accompanied b

three o r

four friends, who probably meant to become his bail, in case o

his being now admitted to bail. He opened with a speech, which is already

in print,” and therefore needs not be here re

* Itwas printed in the public papers of the next day, 21st o

f April 1768. Burrow.

It is also inserted in the Annual Register for the year 1768, Chronicle p .

93, and is

as follows:

“My lords; according to the voluntary romise I made to the public, I now appear}. this sovereign court of justice, to sub mit myself in every thing to the laws o

fmy

country. Two verdicts have been found against me, one is for the republication o

the North Briton, N

45, the other fo r

the publica tion o

f a ludicrous poem. As to the republica

tion o f

the number o f

the North Briton, I can not yet see that there is the smallest degree o

guilt. I have often read and examined that famous paper. I know that it is in every part founded o

the strongest evidence o f

facts.

I find it full of duty and respect to the person

o f

the king, although itarraigns, in the severest manner, the conduct o

his majesty's then ministers, and brings very heavy charges home

to them. I am persuaded that they were well grounded, because every one o

those ministers has since been removed. No one instance of falsehood has yet been pointed out in that pre tended libel, nor was ū

word “false’ in the information before this Court. I am therefore perfectly easy under every imputation re specting a paper, in which truth has guided

the pen o f

the writer, whoever h e was, in every

single line; and it is this circumstance which has drawn o

me a s

the supposed author, all the cruelties o

f ministerial vengeance. As to

the other charge against me, for the publica tion o

f a poem which has given just offence, I

will assert that such an idea never entered m

mind. I blush again at the recollection that it

has been a tany time, and in any way, brought

to the public eye, and drawn from the obscurity

in which it remained under my roof. Twelve copies o

f a small part o f it had been printed in

my house, a t my own private press: I had

carefully lockedū. up,and I never gave one

to the most intimate friend. Government, after the affair o f

the North Briton, bribed one

o fmy servants to rob me o f

the copy, which was produced in the House o

f Peers, and after wards before this honourable Court. The nation was justly offended, but notwith me, for

it is evident that I have not been guilty of the least offence to the public. I pray God to

forgive, a s I do, the jury who have found me

guilty o f publishing a poem I concealed with

care, and which is not even yet published, if

any precise meaning can b e

affixed to any word

in our language. But, my lords, neither o f

the two verdicts could have been found against me, if the records had not been materially altered without my consent, and, a

s I am in formed, contrary to law. On the evening only before the two trials, the Lord Chief Justice caused the records to be altered a

his own house, against the consent o

f my solicitor, and without my knowledge; for a dangerous ill ness, arising from a

affair o f

honour, detained me a

that time abroad. The alterations were

o f

the utmost importance; and I was in conse quence tried the very next day o

two new charges, o

which I could know nothing : I

will venture to declare this proceeding uncon

1079] 4–10 GEORGE III. Case of John Wilkes, esq. [1080 being unconstitutional and illegal ; and was advised, he said, that it rendered both the ver dicts absolutely void. Mr. Attorney General (Mr. DeGrey) prayed that Mr. Wilkes might stand committed; as he had been convicted of printing and publish ing one of these libels, and of publishing the other; and had now avowed himself to be the person so convicted.

Mr. Serjeant Glynn, of counsel for Mr. Wilkes, opposed this. He said, he had several objections to the outlawry; and that, till last night, they had expected a Fiat for a writ of error: but that, last night, Mr. Attorney Ge neral declined granting one, because he doubted “whether it belonged to his office to grant it,” or “whether it ought not to be granted by the lord chief justice.” He said, Mr. Attorney General did not refuse his Fiat, from any doubt about the propriety of the application for it

, o r

the sufficiency o f

the objections to the out lawry; but merely from a doubt “to whom it belonged to allow the writ o

error.’ He said, he would propose some errors, which h

hoped

would satisfy the Court that a writ o f

error ought to b

e granted. They were o f

two sorts: first, errors in fact; 2dly, errors in law. 1st. An error in fact was, “that Mr.Wilkes was absent and out o

the kingdom, a t

the time

o f

the award o f

the writ o f Exigent.”

2dly. Three errors in law. First, “that the sheriff has returned n

o proclamations.” It is

only said, ‘that he has obeyed the writ;’

stitutional. I am advised that it is illegal, and that it renders both the verdicts absolutely void.

I have stood forth, my lords, in support of the laws against the arbitrary act o

ministers. This court o

f justice, in a solemn appeal respecting general warrants, shewed their sense o

f my conduct. I shall continue to re yerence the wise and mild system o

f English laws, and this excellent constitution. I have been much misrepresented, but under every species o

persecution, I will remain firm and friendly to the monarchy, dutiful and affec tionate to the illustrious prince who wears the crown, and to the whole Brunswick line. As to

a ll

nice intricate points o f law, I am sensible

how narrow and circumscribed my ideas are ;

but I have experienced the deep knowledge and great abilities o

fmy counsel. With them

I rest the legal part of my defence, submitting every point to the judgment o

this honourable Court, and to the laws o

f England.”

It appears, that the omission of the word “false,” noticed b

the defendant, had been adopted b

si r

Fletcher Norton, for the pur pose o

contracting the scope for dispute be tween judges and juries; concerning which, see vol. 8 , p .

See also the Dean o f

St. Asaph's Case, A .

D .

178 . Concerning thewords “falso “et malitiose’ in indictments and informations for libels, see Emlyn's Preface inserted in

vol. 1 ,

p .

xxx, xxxi.

* SeeSalk, 364, p l.

7 ,

504, p l. 2 .

whereas h e ought to have returned particulars;

that the Court might judge o f

them. Secondly,

it is not stated in the return o f

the Exigent, ‘that Mr.Wilkes was exacted in the county o

Middlesex:’, nor is it said to be “at a county court.” It is only said to be “at his county court a

the Three Tons in Brook-street near Holborn, in the county o

Middlesex:’ which

is n o allegation ‘ that Brook-street is in the

county o f

Middlesex.” And though it is said “at my county-court,' yet h

e might b e sheriff

o f

two counties. He cited 2 Roll's Abr. 802,

title ‘utlagaire, error utlagarie.’ Thirdly, n o

judgment o f

the coroner is here stated; but only amere fact, “that h

was outlawed b y

the coroner.” In support o

which objection, he cited 1 Brown's Entries 361, a

in point. He therefore prayed that his lordship would grant Mr. Wilkes an allowance o

his writ o f error,

in order to his getting this erroneous outlawry reversed. He said itwas improper a

this time

to enter into any litigation about the validity o f

the convictions upon which these judgments are ſounded. Mr. Wilkes's present circum stances under the outlawry are more penal than the convictions themselves. Therefore it is

incumbent upon him, first to get rid o f

the out lawry. And h

e prayed thatMr.Wilkes might be, in the mean time, admitted to bail.

Mr. Recorder o f London, [Eyre, afterwards

successively baron and lord chief baron o f

the Exchequer, and lord chief justice o

f C .

B.] on the same side, enforced what the Serjeant had urged; and observed, that b

y 4 , 5W. andM.

c . 18, § 4 ,

Mr.Wilkes was not compellable to

appear in person; but might have appeared by attorney, and reversed the outlawry without bail (unless otherwise ordered b

y the Court.)

He therefore proposed, that he should either appear b y

attorney, to reverse it; or give bail

to prosecute awrit o f

error. And he cited Ear bury's case in this court, in Easter and Trinity Terms 1723, 9 Geo. 1.* Mr. Mansfield, on the same side, argued that Mr.Wilkes was clearly intitled to be admitted

to bail, under this statute. The convictions cannot a

this time be proceeded upon; a s

the sentence o

f outlawry is standing out against him. He has done a

that is in his power to

do. He appears in court, and submits to the laws o

his country. He has shewn errors o f

weight, in the outlawry; and has used a ll

me thods to obtain a writ o

error to b e allowed;

and prays to b e

admitted to bail b y

the Court,

a s

h e

must have been b y

the sheriff, if he had been taken upon a Capias Utlagatum.

Mr. Davenport, on the same side, spoke to

the same effect.

Mr. Attorney General explained the fact,

* That case was an outlawry fo r

non-ap pearance; I have a note o

f it ,

o fmy own º :

ing. And there is a report o f it in Fortescue

Aland 37, and another in 8 Mod. 177, very bad

in the 1st edition, butmuchmended in the late edition of that book. Burrow.

1081] A. D. 1763–1770, [1082on two Informations for Libels. and the reason of his declining to grant the fiat for a writ of error. He said, that upon the ap plication made to him on the part of the de fendant, he directed an attendance : which was accordingly had. That he thought the errors specified to him, to be a sufficient foun dation for a fiat, in case the party had been in custody; but he could not find any precedent for an attorney-general's granting a fiat when the party was not in custody.” The writ of error was not tendered to him, he said, till last night: and the Court was to si

this morning.

He was ready to listen to any method that could have been shewn to b

e proper: but none was proposed. . .He added, that he thought Mr. Wilkes could not be intitled to his writ of error, till h

should b e

in custody. He ob. served, that this was not a

n outlawry for non appearance; but a

n outlawry upon and after conviction.

Lord Mansfield. Here are two motions made, upon the defendant’s appearing per sonally in court: one, for committing him ;

the other, for bailing him.

I am of opinion against both these mo tions.

He ought to bebrought in regularly, upon a

return o f

the Capias b y

the sheriff. have no

doubt but that we might take notice o f him,

upon his voluntary appearance a s

the person outlawed; and commit o

bail him : but we are not absolutely bound to d

o it ,

without some reason to excuse the going out o

the regular course. If the defendant could shew that the attor ney general refused to take him u

and bring him into court, in order to prevent his having this advantage; o

r if the attorney general had

in fact used a ll

methods to take him up, and h e

had concealed himself and absconded, and af. terwards had come in thus voluntarily, in order

to surprize; upon either o f these, o r any other

extraordinary ground, we should be bound to

interpose, and overlook the impropriety o f

the defendant’s coming, instead o

f being brought into court.

But the real cause o f

this irregularity is the strongest argument, why we should not give way to a new mode, liable to misconstruction, and carrying a bad appearance. It is noto rious, that the defendant has appeared very publicly : why was h

not apprehended ?

The outlawry must certainly b e disposed of,

before you can come a t any thing else: the

judgment upon the convictions cannot, a t pre

sent, b e proceeded upon.

I could wish this gentleman had been better advised than to have come thus prematurely,

with a written speech to justify the crimes o f

* Qu. the stat. 4 and 5W. and M. c. 18.

+ “If we see one against whom there is a

judgment o f

this Court walk in Westminster hall, wemay send out an officer to take him

u p if the plaintiff desires it ,

without a writ o f

execution.” Per Holt, 7Mod, 52.

which h e

stands convicted; and to arraign a n

order made b y

me.

I am very happy in having this opportunity

o fexplaining my conduct inmaking the amend

ment that has been mentioned. If I was wrong, I should think it more honourable to

acknowledge and rectify any error that I should have committed, than to justify and defend it

The application to me was, to amend the word ‘purport’ into tenor.” Mr. Hughes, the clerk in court for the defendant, agreed it to

be amendable. I recollected a case of the like kind, o

f a n

amendment o f a n

information just before trial: and, looking for it

, I found a col

lection o f

such cases. After reading one o r

two, Mr. Philips, attorney and agent for the defendant, was perfectly satisfied, and desired me not to give myself any further trouble; but said “he could not consent to it.' I said, ‘ I

did not want a consent:’ I thought myself bound to order the amendment; and did so.” I

* Great clamour was raised by Wilkes's partisans against lord Mansfield for causing this amendment to be made. The transaction was mentioned with much acrimony in the “Letter concerning Libels, Warrants, Seizure

o f Papers,” &c. which caused the attorney ge

neral (sir Fletcher Norton), to move the Court

o f King's-bench for an attachment against Mr.

Almon, the publisher o f

that letter. It appears, that the matter was argued upon a rule toshew cause whv awrit of attachment should not be issued; the proceedings, however, were discon tinued. Mr. Justice Wilmot had prepared a

learned opinion o n

the punishment o f contempt

b y

attachment, which is published in the

“ Notes of his Opinions and Judgments,” &c.

p .

243.

In “Another Letter toMr. Almon’ is the fol lowing passage:

“Let us recollect what a noise the altera tion o f a record, after issue joined, produced;

it being unusual. After discussion and search

o f

precedents, it was found to b e sufficiently

warranted both b y

law and practice. It ma

b e

done b y

any judge a t

his house, the verymi nute before trialwithout the defendant's consent. However, nothing but a solemn decision o

the int would have appeased a

discontent about

it .

The notion that a defendant might have so

far trusted to some flaw in the pleadings, which he was well advised would b

e fatal, a s

forego the bringing o f testimony in his behalf,

notwithstanding h e really could have done so,

was the ground o f

people's alarm. Themaking

o f a defence o n

the merits necessary, just a s

the cause is called on, which was unnecessary before, made the world conceive a

honest de fendant might be convicted sometimes b

sur prize, and that such a

alteration o f

the record could not therefore b

e just, and consequently not legal. They had heard that it had grounded a complaint to parliament in king William's time, against a judge (one Holloway

I think). But it is now settled, and therefore no

10S3] 4–10 GEORGE III. Case of John Wilkes, esq. [1034 had made some such orders before; and I have made several such orders since; even in Quo Warranto’informations. In this case, it made no alteration in the defendant’s defence. His counsel never objected to it

nor took any no tice o

f it .

I think it right and usual, and as

o fcourse; not but that I am open to conviction,

and ready to hear what can b e

said to shew that itwas wrong.

Mr. Justice Yates. If this amendment was wrong, it will still be open to the consideration

o f

the Court; although the proper opportunity

o f

objecting to it was a t

the trial. In the case

o f

the King against Charlesworth, an informa tion for forging a warrant o

attorney toac knowledge satisfaction upon a judgment,’ was amended, without costs (the prosecutor having been admitted a pauper), and without giving

the defendant leave to plead de novo. 2 Stra. 871.

A s to the two present opposite motions, one

for committing, the other for bailing the defen dant; the same answer serves for botli : “the Court can take n

notice o f

any thing but what comes judicially before them.” We cannot take cognizance o

thismatter, in the method

in which it now comes before us: we cannot

take judicial notice ‘that this is the person con victed o

outlawed.” Mr. Browne's case in

Dyer 192, is clear and strong, as to the out lawry. And as to committing him upon the convictions, that can't b

done whilst the outlawry is subsisting: the outlawry must first b

e disposed o f,

before we proceed upon

the convictions. The judgment o f outlawry

suspends a ll proceedings upon them. The

judgments o n

the convictions would pro}. be fine and imprisonment. But it

would b e

manifest oppression to set a fine upon him, when a

his effects stand forfeited

to the king already : and h e isalready liable to

imprisonment upon the outlawry; from which he can never be freed whilst that stands in

force. There cannot b e

two different judg ments for the same offence: there cannot be judgment o

f outlawry, and judgment for the misdemeanour likewise. In the case of the King and Queen against Tippin, 1W. and M. Salk. 494, the defendant was outlawed upon an information for a misdemeanour, and fined 5,000l. Itwasmoved, on his behalf, that he could not b

fined upon the outlawry; because,

inmisdemeanour, the outlawry does not enure

a s a conviction for the offence, (as it does in cases

o f

treason and felony,) but a s a conviction o f

the contempt for not answering ; which contempt

is punished b y

the forfeiture o f

his goods and chattels: and if he might be fined now, he

torieus, and nobody in particular can b e in jured b y

such practice hereafter; Mr. Wilkes no more than Dr. Shebbeare. The occasion,

must b e

fined again, upon the principal judg ment. And the first” was held to b

e irregular: for the outlawry in these cases is not a con viction; a

s appears b y

Fleta 42. Quamvis “quis pro contumacia e

t fuga utlagetur, non ‘propter hoc convictus est de facto principali.” And there is a case in Bro. Abr. title “ Utla ‘gary, pl

26, where a man was outlawed o f

felony, and taken b y aCapias Utlagatum, and

detained in the King's-bench; and divers bills were brought against him in custody o

the marshal : and the Court would not suffer it. For, his body, lands, and goods are the king's; and therefore the plaintiff cannot have theef fect o

his suit against him before the outlawry :

but if he obtains a pardon, the plaintiff shall be

answered. If the defendant in the present case had come in b

process, his identity would have appeared. If he had come in by record,

h emight have applied to be bailed, either upon

the statute o f 4 , 5 W. and M. c. 18, (i f

that statute can b

shewn to b e applicable to a n out

lawry o n

a misdemeanour), o r

under the plenary power o

the Court upon the circum stances of his case. But that statute seems only applicable to civil cases. I mention this, only for the consideration o

the counsel, when it shall come before the Court. By the 5th

section, the sheriffmay “take security o f

the ‘defendant taken upon a Capias Utlagatum, in

‘ cases where bail is required, in double the ‘sum for which bail is required.” But how can the sheriff, under the directions o

this sta tute, take bail in double the sum, in a criminal case ? How can the sheriff know what the fine will be Or whv should the sum of the fine be doubled P. The statute seems to re late only to civil cases, and to mean ‘double the debt.”

The defendant ought, in myopinion, to have come hither in a regular way: but a s

the matter now stands, upon this voluntary ap pearance, without return o f

process o r any matter o

record whatsoever, the Court can neither commit him nor bail him.

Mr. Justice Aston. I think there is but one question: and I shall keep to that. It is

“ whether he shall be committed.” The at torney-general prays u

to commit a man as

a n outlaw, againstwhom h e

himself would not issue process o

f outlawry; though there do

not appear to b e any particular circumstances

to prevent his issuing such process. The offi cers o

the crown might have exercised their power b

proper process; and then h e

would have been in custody. But they have not chosen to do so; and he remains as much a

his liberty, a s

h e

was before h e

came into court. The motion to commit him seems unneces sary: and I shall not, a

t present, take notice

o f any other question; he not being at a ll in

custody. too, frequently adds to the susp , and none is so likely to minister ground o

of. fence a

the case o f a writer against admi

mistration.”

* “I suspect this word “first to be an

error o f

the press; and that it should be

• fine.’” Burrow.

1085] A. D. 1763–1770. [1086on two Informations for Libels,

Mr. Justice Willes. There has been, for some time, a judgment ofoutlawry against the defendant, who is not an absconding person.

The attorney-general has not thought proper to issue process against him upon it

And now h

e comes into court gratis, voluntarily,

not b y

any return o fprocess, o r any matter o f

record. We cannot take any notice a t

all o f

him; nor can we know, judicially, that he is

the man. I don’t see why the attorney-ge neral should demand of the Court to commit

the defendant upon this outlawry, when h e

himself has long suffered him to go a t large,

without any attempt to take him up, o r

even issuing process against him.

Nothing was taken b y

either o f

the two mo tions; namely, the attorney general's, “that the defendant might b

e committed;’ o r

his own counsel's, “that h

emight be bailed.”

On Wednesday the 27th o f April 1768, (a

week after the former transaction,) Mr.Wilkes having this morning surrendered himself to the sheriff o

Middlesex upon a Capias Utlagatum which had been since the last motion issued againsthim, and being now in the sheriff’s cus tody, was brought into court b

the said sheriff, upon the return o

f a Habeas Corpus directed

to him for that purpose. In the mean time, Mr. Attorney-General had granted his fiat for a

writ o f

error: which h e

did immediately upon receiving a

assurance that Mr. Wilkes was in

actual custody upon the Capias Utlagatum. The return to the Habeas Corpus being read in

court, it appeared that the defendant was charged with two outlawries; viz. one o

each conviction for the respective misdemeanors be fore mentioned. A writ of error in each cause was delivered into court. The outlawries, the writs o

f error, and the assignment o

errors, were exactly alike in

both causes: it will therefore be sufficient to

specify only one o f

each sort. The material part o

the outlawry, o n

which the question turned, was this. The sheriff re turned the writ o

f Exigent executed and in dorsed a

follows—' By virtue o f

this writ to

*me directed, a tmy county court held a t

the “house known b

the sign o f

the Three Tuns

* in Brook-street near Holborn in the county o f

“Middlesex, the 12th day o f July in the fourth

“year o f

the reign o f

our present sovereign lord

*George the third now king o f

Great Britain,

* &c. the within named JohnWilkes was the

* first time exacted, and did not appear.” It

goes o n

in the same manner, till the quinto eractus; viz. “at my county court held at the “same place the 9th day o

f August in the year

* aforesaid, the said John Wilkes was a second

* time exacted, and did not appear:” and so, in

the same words, only changing the days, to the 5th inclusive. Therefore b y

the judgment o f

Edward Umfreville, esq. and Thomas Philips,

#. his majesty's coroners o f

the county o f

Middlesex, the said John Wilkes, according to

the laws and customs o f

this realm, is out lawed. -

Thewrit o f

error was verbatim .. .

a s

follows—Of Easter term 1768, º.”Error.

8 G .

3 . Our lord the king hath

sent to his justices appointed to hold pleas before him his writ closed in these words

(that is to say) George the third b y

the grace

o f

God o f

Great Britain, France, and Ireland king, defender o

the faith, &c. To our jus tices appointed to hold pleas before u

sgreeting. Forasmuch a

in the record and process, a s

also in the publication o f

a n outlawry against

JohnWilkes late o fWestminster, in the county

o f Middlesex, esq. on a certain information

against the said JohnWilkes, for printing and publishing a certain libel o

r composition, in titled An Essay o

nWoman; whereof the said JohnWilkes is impeached, and thereupon b

y a

jury o f

the county is convicted, a s it is said;

manifest error hath intervened, to the great damage o

the said John Wilkes, as b y

his complaint we are informed: we, willing that the said error (i

any be) b e duly amended, and

full and speedy justice done to the said John Wilkes in

jº.

d o

command you, that if

thesaid outlawry be returned before u s

a s

hath been said; then inspecting the said record and process, you cause further to b

done therein for annulling the said outlawry a

o f right, and

according to the law and custom o f England,

shall be meet to be done. Witness ourseſt a t

Westminster, the 27th day o f April, in the

eighth year o f

our reign. And hereupon the said John Wilkes comes in his proper person, and says, that in the record and process, and also in the publication o

the afore said outlawry, there is manifest error in this, that there is no sufficient information filed or exhibited against the said JohnWilkes, where

o n

to ground the process o f

the outlawry afore said: b y

reason whereof, the said outlawry is "

void and of no effect or force whatsoever. There is also error in this, that n o public pro clamation whatsoever is mentioned to have

been made a t any open county court, o r

a t any general quarter-sessions o

the peace whatso ever, o

a t

the door o fany parish church where

the said John Wilkes was an inhabitant, ac cording to the exigency o

the said writ o f

Capias cum proclamatione: therefore in that, there ismanifest error. There is also error in this, that it is not shewn, nor does it appear by the return o

the sheriff o f Middlesex, that the

sheriff of Middlesex did cause to be exacted

the said John Wilkes in the said county o f

Middlesex, from county court to county court, until h

was outlawed according to the law and custom o

f England, as the said sheriff b y

the said writ o

f Exigent is commanded; and that it

is not shewn nor does it appear b y

the return o f

the sheriff o f Middlesex, that the said John

Wilkes was a first, second, third, fourth and fifth time exacted a

the county court o f

the county o

fMiddlesex, as b y

the law o f

the land

h e ought to have been before h e

was outlawed: therefore in that, there is manifest error. There is also error in this, that in the record

Assignment of error.

1087] 4–10 GEORGE III. Case ofJohn Wilkes, esq. [10SS and process aforesaid, and in the publication of the outlawry aforesaid, it is no where ex pressly shewn that the place called Brook street (if any such there be) where the several county courts are supposed to have been held, at which the said John Wilkes is said to have been exacted, is in the county ofMiddlesex, or in any or what other county. Therefore in that, there is manifest error. There is also error in this, that it does not appear that any judgment ofoutlawry was given or pronounced against the said John Wilkes; or, if any such judgment was given or pronounced, in what form the same was so given or pronounced; as it ought to have done, in order that the le gality and propriety of the said judgment might have been seen and examined : but in the record and process aforesaid, and in the publication of the outlawry aforesaid, reference and relation only are had to some judgment not shewn or expressed, but supposed to have been before given against the said JohnWilkes. Therefore in that, there is manifest error. Wherefore the said JohnWilkes prays that the outlawry aforesaid, for the errors aforesaid, and other errors appearing in the record and process aforesaid, may be reversed and held for nothing; and that he may be restored to the

common law, and to a ll

which h e

hath lost b y

occasion o f

the out lawry aforesaid, &c.—Aud William

De Grey, esq, now attorney-general o f

our resent sovereign lord the king, present here

in court in his proper person, having heard the matters aforesaid above assigned for error, for our said lord the king saith, that neither in

the record and process aforesaid, nor in the publication o

the aforesaid outlawry is there any error; and h

e prays that the Court o f

our said lord the king now here may proceed to the examination a

well o f

the record and process aforesaid, a

o f

the matters aforesaid above as signed for error; and that the outlawry afore saidmay in a

ll things b e

affirmed.

Lord Mansfield. allowed.

His lordship then asked the Attorney-Gene ral, “towhat prison heº: that the de“fendant might be committed.’ Mr. Attorney-General answered—‘To the Marshal.”

Lord Mansfield. Let him be committed to

the Marshal.

Mr. Serjeant Glynn moved, that hemight be admitted to bail, on 4 and 5W. and M. c.

18, (vide § 4,) which, he said, extended to cases

o f

misdemeanour. Hewas supported b y

Mr. Recorder o f London, Mr. Mansfield, and Mr. Davenport. They urged the spirit, scope and design o

this statute, a s

well a s

the words o f it ,

a s argu

ments to prove that it extended to misde meanours; and that the preamble and enact ing part o

f it do, both o f

them, apply toMr.

Joinder in

trºot.

Let the writs of error be

Wilkes's case: and they said, that even if the words were doubtful, the construction of then ought to be such a

would bemost favourable

to liberty. But these words are express; they include a

ll causes, except treason and felony. ‘For the more easy and speedy reversing ofout ‘lawries in the court o

f King’s-bench, be it

* enacted, that n o person o r persons whatso

“ever, who are o r

shall be outlawed in the said “court, for any cause, matter o

r thing what ‘soever, (treason and felony only excepted), “shall b

e compelled to come in person into, o r

“appear in person in the said court, to reverse ‘such outlawry; but shall or may appear by “attorney and reverse the same, except where ‘special bail shall b

ordered b y

the said “court.” Cases of misdemeanor are within the same mischief as civil cases: and it ex tends to outlawries after conviction of misde meanours, a

well a s

to outlawries upon mesne process. If the question should take a long time in discussing, the defendant may b

actually punished b y

a n imprisonment upon

the outlawry, though it should b e

a t

last re versed; o

stillmore unjustly, in case it should afterwards appear that n

o punishment ought

to b e

inflicted upon the convictions themselves. In civil cases, a pardon is o f course, upon

paying the debts and costs: but a defendant outlawed upon mesne process for a misde meanour has n

such opportunity o f getting

rid o f

the outlawry. He ought to have an

opportunity o f putting himself in a condition

o f

being amenable to the jnstice o f

his country. Though some o

the expressions in this statute may seem more applicable to civil cases, yet there are general words sufficient to take in

criminal misdemeanours. Theymentioned si r

John Read's case, and that o f

Matthias Ear bury in 1723.

Mr. Attorney-General (Mr. De Grey), sir Fletcher Norton, and Mr. Morton, on the other side, argued that this statute relates only to

civil cases; and not to criminal misdemea nours. The expressions o

f it relate to civil

property. It can relate only to such cases where a defendant can appear b

attorney. The preamble (vide § 2) says, “Whereas divers ‘persons are prosecuted in the said court o

• King's-bench, to outlawries for debts, tres ‘passes, o

other misdemeanours; and there “is no reversing such outlawries but b

the ‘personal appearance o

the persons outlawed: “so that the persons arrested upon such out ‘lawries, if poor, lie in prisou ti

their deaths;

‘ but if able, it costs them very dear, to reverse

“ the same outlawries.” The former of these words relate to property: the latter to actions for malicious prosecutions and such like. The whole relates only to civil suits. Aud a

Earbury’s case, they said it was neither adi rect determination, inor any authority in the present case.

Serjeant Glynn replied, that “trespasses' include all other actions not arising e

con tractu : and ‘misdemeanours' unust mean

4 .

1089] A. D. 1763–1770. [1090on two Informations for Libels.

offences. “All causes, matters, and things,” certainly include criminal offences and misde meanours. And the statute speaks of outlaw ries in general. It is not reasonable, that the defendant should undergo the penalty of a con tempt for withdrawing from justice, when the very validity of the outlawry itself is in ques tion. And Earbury’s case, though itwas not an outlawry after conviction (as this is), yet clearly proves “that this act does relate tomis • demeanours:’ for, the judges were a

o f

that opinion.

Lord Mansfield. God forbid that the de fendant should not be allowed the benefit of every advantage h

e is intitled to b y

law

It is to be considered, how he is in custody. After conviction, if he had been present in

court, h emight have been committed: if not

present, h e might have been taken b y a Ca

plas.

It is ,

indeed, in the discretion o f

the Court, to bail a person so circumstanced. But discretion, when applied to a court o

justice, means sound discretion guided b y

law.

It must be governed b y

rule, not b y

humour:

it must not be arbitrary, vague, and fanciful; but legal and regular.

This defendant was not present, when con victed. He alterwards withdrew from justice, and was outlawed: and a Capias Utlagatum

has now issued; and h e is in custody upon it .

If a person convicted be taken upon a Capias pro fine, h

is liable to b e eommitted, unless

the prosecutor consents to his being bailed. This is the common course o

proceeding: though it is usual to admit to bail, upon the prosecutor's consenting to it

. In the case o f

the journeymen Taylors, and again in that o f

the Weavers, the defendants were b y

consent bailed, and b

consent were not to appear till called upon. But I do not remember any case where such a person has been bailed without consent. When a person so convicted is com mitted, such commitment shall be taken into

consideration b y

the Court when they come to

pronounce their sentence upon him, and shall go as part o

his punishment. Here, the defendant is in custody under the conviction; for, h

is in custody upon the Capias Utlagatum, which issued upon his con viction. Now, whatever doubts there may b

about what is within the act o

f parliament o f

the 4

and 5W. and M. c. 18, it ismost certain that

a person convicted o f a misdemeanour is not

within it; because his case is not a bailable case. Nothing therefore can b

e clearer, than that such a person is not within a

act o f par

liament that relates only to bailable cases. This act relates to cases where no special bail

is required, and to cases where special bail

is required: (vide § 5) and the sheriff is di rected what to do in either case. Where the case is bailable, the defendant is to be dis charged upon the security-bond. But even in

civil actions, he could not be bailed, where he

WOL. XIX. -

was not bailable: h e is only to b e put into the

same condition as if he ...}. been outlawed

a t

all. If the outlawry was after judgment in

debt, o r any other civil action, and the defend

ant was not bailable before the outlawry, the act did not make such defendant bailable, who was not so before the outlawry. I am clear, that this case is not within the act.

Mr. Justice Yates was also clear in the same opinion. . It issaid, “that misdemeanours o

all kinds are within the words o

this act, a s

well

a s

within the scope and meaning o f

it.” But misdemeanours are here (vide § 2

)

connected with debts and trespasses; which are descrip tions of civil actions: and so may the word ‘misdemeanour’ be. This act might, in the general words o

the preamble, have a view to

actions o f

conspiracy, deceit, o r popular actions

upon penal statutes; (on which a n outlawry

was given b y

2 1 Ja. 1 , c . 4.) And taking the

whole o f

the act together, there can b e

no doubt about it: for, it must be construed o

those cases where the clauses of the act are practicable; which, in the present case, the are not. A conviction in a criminal case can not be within this act. The sheriff is directed

b y

it ,

“to take security o f

the person outlawed,

in the penalty o f

double the sum for which special bail is required.” But the sheriff can not take bail o

f a person after his being con

victed o f a crime. The sheriff cannot form his

own idea o f

the offence, o r

settle a sum wherein .

he should take the bail of such a person: nor can h

e require bail in double the fine, o r any

thing more than what the fineshall be fixed at; which is uncertain and future. The conclud ing words o

the security-bond, and to d o

and perform such things a s

shall b e required

b y

the said court,' mean putting in bail to a

new action, pleading within a limited time,ºf the plaintiff in the same condition, andsuch like matters. And it should be con sidered, how the law stood in civil cases, before this act o

f parliament; and that n o

bail could then b

taken o n a Capias Utlagatum. Wide

1 3Car. 2 ,

stat. 2 , c . 2 , § 4 .

What I have been saying, may throw some light upon this act o

fparliament. But I con fine my opinion to it

s being a n outlawry after

conviction in a criminal case : which cannot

b e a case within this act o f

parliament.

If a defendant is taken upon a Capias pro fine (or pro redemptione,) it is a

n execution; and

n o

sheriff can take bail o f

him : it is a favour, if

the Court does it. By 5 E. 3 , c . 12, n o pardon

for a n outlawry shall be granted, till the chan

cellor is certified that the plaintiff is satisfied o f

his damages. In a criminal case, if the party

b e convicted, and a Capias a d

satisfaciendum issues, and h

e is taken upon it ,

h e is in execu

tion, to make satisfaction ; and the sheriff can never foretel, before the Court have given the final judgment, what that satisfaction is to be, on which he should admit the defendant to

bail, o n

the Capias Utlagatum: he has nothing

todirect himself by. No clause o f

this act can

4 A

1091] 4–10 GEORGE III. Case of John Wilkes, esq. [1092 be put in execution, on an outlawry upon a con viction in a criminal case. Therefore 1 am of opinion, that the present case is notwithin it

Mr. Justice Aston. I am o f

the same opi nion. I think this act of parliament relates only to civil actions: this is evidently the true spirit o

f it .

It cannot be imagined, that the act can mean to allow o

f a defendant’s appearing

. attorney, in cases where the defendant isobliged to appear personally, and cannot ap pear b

attorney a t all: neither can it extend

to taking bail in cases not bailable. But surely

it cannot extend to cases of criminal misde meanours, after conviction; because in such cases, a defendant is not entitled to b

bailed

a t

all. Outlawries after conviction are very different from the case of outlawries for non appearance upon mesne process. After con viction, there is n

case where it has been holden that the defendant has a right to b

e ad mitted to bail. In an outlawry after convic tion for misdemeanour, n

sheriff could take bail : and consequently this act could not have any such case in view, o

b e

meant to extend to it.

Mr. Justice Willes. It is clear that the de fendant has n

o right to demand being admitted to bail. This is an outlawrv after conviction.

If it should be granted that he is intitled to be

bailed upon the outlawry, yet a s

h e

stands convicted o

the crime, he must b e

committed upon the conviction. This statute is indeed as

obscure a one a s any in the statute-book: it is

difficult to ascertain it s

true meaning. There fore I do not chuse to give any direct opinion about it

s extent; unless it should become ab solutely necessary for me to d

so. As the present case arises upon a

n. after conviction, it is clearly not a case within this act

o f

parliament. In treason and felony, out lawries were convictions of the fact: and there fore they are particularly excepted out o

this act. But outlawries in cases ofmisdemeanour are not convictions o

the fact: yet after actual conviction o

f a misdemeanour, the defendant

is not entitled to bail; whether he be o r

b e

not

outlawed. Even in a civil action, a person outlawed after judgment could not have a

pardon, till payment o f

the debt. In the pre sent case, itwould be merely nugatory, todis charge the defendant upon giving bail topro secute his writ o

error upon the outlawry, when we must immediately commit him upon the conviction. How can the sheriff know, a

the time o f

the defendant's being taken upon

the Capias Utlagatum, whether the Court will

a t

a ll

admit o f

special bail, o r

not? Or if they should, how shall the sheriff know in what sum

it shall bef Or, if he should be fined, what will be the amount o f

his fine P Clearly, a n

outlawry after conviction of amisdemeanour is

not within this act; whatever else may b e

within it.

The Court having thus declared their unani mous opinion, “that Mr. Wilkes, under his

present circumstances o f

standing convicted of

a criminal misdemeanour, had u o right tode

mand being admitted to bail, under this act of parliament;’ His counsel moved that he might be bailed, upon the foot o

the general discretion which the Court would exercise, o

f bailing o r com

mitting a person convicted o f a misdemeanour,

according to the particular circumstances o f

his case; which they alledged to b e sufficient,

in this gentleman's case, to induce the Court to

ſº him to remain at large, under properil. Public justice was not intended, they said, nor a

a ll likely to b e

evaded. He had always been amenable to justice; h

now sur rendered voluntarily. Indeed, little care had ever been taken to apprehend º, He al Waws a ublicly upon the hustin tº. º ...”.hiº; and tº: member o

parliament for the latter county.

Lord Mansfield—I have said, ‘ that I knew

n o

case where a person convicted o f amisde

meanour has been admitted to bail without con sent o

the prosecutor.” If any gentleman knows any such case, I should beglad to be

informed of it: I know of none. We cannot therefore d

o it , if the attorney-general does not

consent. For, we must act alike in all cases

o f

like nature: and what we d o now, ought to

b e agreeable to former precedents, and willbe

come a precedent in future cases o f a like

kind.

The Court declining to bail him without the consent o

the AttorneyGeneral a s prosecuting

for * crown, hewas committed to the Marshal. His counsel then moved for a rule to bring

him u p

to-morrow, to assign errors. Whic was granted.

There were two rules. The former was this. “The defendant being brought here into court, in custody o

the sheriff o f

the county o

fMiddlesex, b y

virtue o f a writ o f

Capias Utlagatum; it is ordered, upon themo tion o

Mr. Attorney General, that the said de fendant b

now committed to the custody o f

the Marshal of the Mlarshalsea of this court,

to b e b y

him kept in safe custody until h e

shall

b e

from thence discharged b y

due course o f

law. And the said defendant now here in

court producing aWrit o f Error, and praying

oyer o f

the Record, it is ordered b y

this Court, that the said Writ of Error be allowed. On the motion o

Mr. Attorney-General.”

The other rule, “ that the Marshal or his deputy bring the defendant u

to-morrow, to

assign errors,” was a distinct rule; andwas taken u

o n

the motion o f

one o f

the defend ant's counsel.

On Wednesday the 4th o f May, 1768, (a

week after the last mentioned rule), the defend ant having assigned errors upon the record o

the outlawry, and the crown having joined in

error; (all which was, b y

consent o n

both

1093] A. D. 1763–1770, [1094on two Informations for Libels. sides, privately transacted between the agents, without actually bringing Mr. Wilkes into eourt;)

Mr. Davenport moved to make the joinder in error a Concilium; and Saturday next was agreed upon as the day on which it was to be argued.

Accordingly, on Saturday the 7th of May, 1768, it was argued by serjeant Glynn on the part of the

j. and Mr. Thurlow on

the part of the crown. It was very well argued on both sides: but it would draw this report out into an insufferable length, if the particulars of it should be here inserted. The great and capital error that the Serjeant insisted upon, was the insufficiency of the re turn in not shewing that the defendant had been five times exacted from county-court to county-court, till he was outlawed, as the law directs, and the writ requires. He ar gued that this ought to appear certainly and precisely upon the sheriff's return; that outlawries are odious; and that the Court will intend nothing in support of so cruel a pro ceeding, but, on the contrary, listen to the least objection of error in it

And here the first ex action does not appear to have been made in the county o

f Middlesex; nor any o f

the sub sequent ones, which are said to have been a

the same place with the first. . The words,

* near Holborn, in the county o f Middlesex;’

d o

not import it s being in the county. Besides,

the time and place o f

the second, third, fourth and fifth exactions ought to have been parti cularly specified and described; and not b

re ference only to the first. Moreover, the she riff ought to have stated the proclamations ex plicitly and particularly, and the particular manner and circumstances of them. He also

made a question, “Whether a n outlawry lies

upon a n

information?’ And h e

concluded with

a n objection to the information, a s

not being

properly exhibited ; being exhibited b y

h is

majesty's solicitor-general, without taking any notice of the vacancy of the office ofattorney general: whereas #

attorney general is the known and proper officer o

the crown for this purpose; and the solicitor-general has n

such right.

He cited a great number o f

cases and pre dents, in support o

his objections.

Mr. Thurlow defended the regularity o f

the whole proceeding, b

reason, argument, and practice: and h

also cited a great number o f

cases and precedents, to support his arguments and allegations.

To which Mr. Serjeant Glynn having re lied; and the counsel for the defendant hav ingdeclared," that they did not desire a second argument;’

The Court said, that the very great number and variety o

authorities and precedents that

had been produced and very ably urged o n

both sides, deserved and would require their mature

consideration; and directed copies o f

the re cords cited o

both sides to b e

laid before them;

o r a t

least one copy o f

each record, which they would deliver over from one to another.

On Saturday the 14th o f May, 1768, (a

week after the before-mentioned argument,) after lord Mansfield andMr. Justice Yates were gone,

Mr. Davenport moved for a rule to bring the defendant u

o nMonday, in order to b e bail

ed: but h e

had n o

affidavit o f any particular

circumstances to induce the Court tograntsuch

a rule.

Mr. Justice Aston did not see, he said, how theCourt could bail him, without any particu

lar circumstances being laid before them, when they had already and so lately determined,

after a full hearing o f

counsel o n

both sides,

“that h e

was in execution upon the outlawry after conviction o

misdemeanors, and was not admissable to bail.” He would not therefore, after two o

the four judges were gone away,

make such a rule a s

was prayed; but Mr. Davenport might move it again, if he pleased,

o nMonday morning a t

the sitting o f

the Court; and that would allow time enough for the de fendant's being brought u

the same day, to b e

bailed, if the Court should think it a reason able motion.

Mr. Justice Willes was of the same senti ments with Mr. Justice Aston; and agreed to

Mr. Davenport's having leave to move it a t

the sitting o f

the Court o nMonday.

Upon Monday the 16th o f May 1768, the

Court being then full,

Mr. Davenport accordingly renewed his motion. He could only urge, that there were but two grounds o f imprisonment: one, for se curity; the other, for punishment. The former failed in the present case; because Mr. Wilkes had always [qu. already] voluntarily surrendered : the latter failed, because it was premature; for, the case was not yet ripe for judgment upon the conviction; and the validity

o f

the outlawry was a t present doubtful.

Mr. Davenport, upon being asked b y

lord Mansfield, “Whether h

had given notice to

the Attorney General o f

this motion,’ owned that he had not.

Lord Mansfield. However, it cannot prevail; because the defendant is in custody after con viction: which is a custody in execution. It

is not a custody, for securityº ; but goes inpart of the punishment, and will be taken into consideration, upon the final judgment: and so

we told you before. It was so in Lookup’s case, and in the case o

f aWelch clergyman.

A defendant in execution upon an outlawry after conviction o

f a misdemeanor, in crown

prosecutions, cannot b e

admitted to bailwith out the consent o

the attorney-general.

If the Court had been of opinion, upon the last argument, to reverse the outlawry, yet the

1095] 4–10 GEORGE III. Case of John Wilkes, esq. [1096 defendant must have continued in custody upon the conviction.

Errors upon outlawries have seldom been solemnly argued. This writ of error has been solemnly and exceedingly well argued: and thematter deserves to be seriously considered. What is determined upon solemn argument establishes the law, and makes a precedent for future cases: which is not the case of questions agreed by consent of parties, or never litigated. Thiswill be a precedent. The Court, in al

cases (without regarding who is the particular defendant), leans to the reversal o

f outlawries; because the punish ment o

the outlawry is often greater than the punishment o

the offence itself. Here, the defendant had the merit o

f coming in volun tarily; not being brought in b

y process and in

in custody. But the Court cannot make er rors; nor reverse for errors which do not exist,

o r

which they cannot see: they must b e satis;

fied, that there are errors. If the Court had been satisfied o

n any one error assigned, they would have reversed the outlawry for that error. We did, several o

f us, when we came into court, seem to think that the want o

f procla inations was a flaw: but my brother Yates doubted ‘Whether proclamations were at a

* necessary in such a proceeding a s

this.” I

wish that the precedents and acts o fparliament

may b e

looked into, to see “whether process o f

“outlawry will li e upon informations for mis

* demeanors;’ a s

well a s to see, ‘Whether pro

“clamations are necessary o r not, upon pro

“cess o f outlawry after convictions for misde

‘meanors.' I desire that the counsel will ap ply themselves to search into this point, “Whe “ther process o

f outlawry will at a ll

li e upon

“informations for misdemeanors.” And, as

many precedents have been already cited and produced, I desire also that the precedents may b

left with us, for our perusal and consi deration.

Mr. Just. Pates. I should have thought thatwhat was said b

the Court upon the former argument, would have been sufficient to have spared the present motion. The matter was then largely and very well argued; and the Court explained their sentiments very fully a

that time: their opinion was, “that the defen “dant being in execution, h

could not b ebail

‘ed, without consent o f

the Attorney-General

* o n

the part o f

the crown.” To bail him upon the mere assignment o

errors, would b epre

judging upon the errors: it would pre-sup pose “that they were fatal.’ He is at pre sent in execution; and cannot b

taken out o f

execution, without consent o f

the Attorney General on behalfof the crown. But since this matter is again brought upon the tapis, it gives me a n opportunity o f sug gesting my own doubts. If proclamations are necessary, I should think this return to be

clearly bad : but if proclamations are not ne cessary, it is then immaterial when, o

r where,

o r

how they were made. As towhat has been

said about the expression, “at my county “court,” not being determinate, because he might b

sheriff o f

two counties—there are two authorities which either were not mentioned at the bar, o

a t

least were not fully stated. One

o f

them is 1 Ventris, 108, where a n outlawry

was reversed, for that the proclamations were returned to b

e ‘ad comitatum meum tent. apud” such a place ‘in comp. praedict. ;’ and not said, ‘pro comitatu :’ for, anciently one sheriff had two o

three counties, and might hold the court in one county for another. The other o

these cases is in 2 Roll's Reports, 52. Robert Alder's case; who was outlawed for murder: and itwas moved for error, that the sheriff re turned, ‘ad comitatum meum tentum apud D. ‘in le county de Northumberland;’ and did not say, ‘Comitat. meum Northumbriae ten ‘tum, &c.” And this was holden to be error,

b y

the Court; according to the case in 6H. 4 ,

where it is returned, ‘ad com. meum Somersett “tentum.” And therefore it was holden erro neous: for, one may b

sheriff o f Surrey and

Sussex, and also o fHuntingdonshire andCam

bridgeshire. But this is not possible in the ease of the sheriffofMiddlesex. The sheriffs

o f

London have been immemorially the sheriff of Middlesex: therefore he could not have two

counties. But I should always incline to fa vour errors assigned in outlawry; because it

ismore just and right, that judgment should

b egiven upon the conviction for the offence.

Therefore, my doubt being against the errors assigned, 1 should b

e unwilling that more re gard should b

e paid to it ,

than it shall appear strictly to deserve: and I would not have pro posed it

, if l had not thought it incumbent upon

me to communicate it ,

since it has occurred to

me, and seems to me to have more weight than perhaps itmight appear to others to have. But my lord's doubt is a very material one “Whether the offence charged in the informa ‘mation is such a crime aswill warrant an out ‘lawry.” The 18 Ed. 3

stat. 1 ,

c . 1 ,

has negative

* “Whether the common law gives process

o f outlawry against crimes, being merely con

structive breaches o f

the peace, was questioned

in a late case before the King's-bench o n a libel.

But the Chief Justice, in delivering the Court's judgment, spoke a

t large to prove, that such process lies against crimes universally. Mr. Wilkes's case, 4 Burrow, page 2537. How ever, the reasoning, o

which this opinion is

grounded, stands opposed b y

a former judg ment o

the Common Pleas o n a prior case re

lative to the same gentleman. 2Wils. 151. But it was adopted b

both Houses o f Parlia

ment, when, in his case, they resolved, that privilege o

f parliament doth not extend to libels. See Annual Reg. for 1764. The arguments for the contrary opinion are forcibly expressed

in a protest b y

some o f

the Lords, who were against making such a resolution. Journ. Dom. Proc. 29th Nov. 1763.” Harg. Co. Lit. 128,

b .

Note (1).

1097] A. D. 1763-1770. [1098on two Informations for Libels. words in it

, in the printed edition o f

the Sta tutes; though it is said not to be so in the Par liament-Roll. (Wid. also stat. 2

c .

5.) At common-law, outlawry lies only for treason and felony, a

s I apprehend. Therefore the Court will beglad o

f hearing the arguments

a t

the bar, to assist their inquiry in this doubt.

Mr. Just. Aston. The opinion o f

the world ought not to weigh a

all with the Court in

forming their opinion upon the validity o f

the errors assigned upon this outlawry. If one flat decisive objection had clearly appeared, the Courtwould have immediately given their opi nion, upon the first argument. I was not sa tisfied, myself, that the minor objections had sufficient force in them : and a

to the greater ones, the counsel for the defendant seemed to

me to be too sanguine and too much attached

to their own opinions, when they declined the offer o

f a further argument, when the Court

wished to b e

further informed b y

hearing it argued again. But this doubt which my lord has mentioned, “Whether process o

f outlawry will lie for the crimes charged in these infor mations,’ is a very material one, and ought to

b e

well considered. It may be necessary to

look into Bracton and other books; and the statutes o

18 Ed. 3 ,

st. 1 ,

c . 1 ,

and st. 2 ,

c . 5 ,

and 1 Ed. 1 , c . 20, and a case in the Year-book

o f 3 5 H . 6 , f. 6 ,

p l. 9 ,

‘that process o f

out “lawry did not lie; because the action was not

* for a tort supposed to b e

done v i e t

armis.”

Itmay be a doubt, “Whether process of out

* lawry lies o n

informations o f

this kind, for “offences which though expressed to b

done

* v i e t armis, are not really done with actual

* force.” The 18 Ed. 3 ,

stat. 2 ,

c . 5 ,

says, ‘that no exigent shall go, where a man is in “dicted o

trespass, if it be not against the ‘peace, o

r o f things contained in 18 E . 3 ,

st .

1 .’

And though the words, “nemy des autres,’ are not to b

found in the Parliament-Roll, yet they are in several manuscript copies. These things deserve to b

e maturely considered.

It is proper also to inquire into the practice and precedents; and to see whether they have been uniform and concomitant. Trespasses in

arks may b e effectually done, without actual

orce.

TheCourt will not keep back their opinion, without having sufficient ground for doubting, and a necessity o

f taking time to satisfy their doubts: o

the other hand, they will not give their opinions over-hastily and prematurely, merely to gratify the humours o

r passions o f

mankind.

Mr. Justice Willes concurred that the defen dant was not bailable; being in execution upon the outlawry after conviction. He thought, withMr. Justice Aston, that the defendant's counsel were in the wrong when they declined

a second argument, which might have given the Court further light. He expressed his in clination towards the reversal o

f outlawries, on account o

the severity o f

the judgment upon

them, which sometimes exceeded what would

b e

the punishment upon the conviction itself.

For the reasons above particularized, Mr. Davenport took nothing b

this motion.

On Wednesday the 8th o f

June 1768, (being the sixth day o

f Trinity term, 8 G .

3.) Mr. Attorney-General and other counsel for the crown were further heard. But the counsel

for the defendant rested their case upon the former argument.

Lord Mansfield expressed himself to the fol lowing effect: Great pains have been taken, and great searches have been made, since the last argu ment; not only (as I see now) b

Mr. Attorney General and those h

has employed, but b y

some o f us; I say, “ some of us;’ because I

cannot, with truth, assume the merit to may self: the load o

other business which lay upon me, made it impossible. But from the able assistance o

those who have taken the trouble to make searches and to collect materials, I

think I am now thoroughly master of a subject which I am not at al

ashamed to say I knew very little o

f before : and I never give a judi.

cial opinion upon any point, until I think I am master o

f every material argument and au thority relative to it

. . It is not only a justice

due to the crown and the party, in every cri minal cause where doubts arise, toweigh well the grounds and reasons o

f the judgment; but

it is o f

great consequence, to explain them with accuracy and precision, in open court; espe cially if the questions be of a general tendency, and upon topics never before fully considered and settled; that the criminal law o

f the land

my be certain and known. utlawry is a very important part o f

that law. Yet it is n

o wonder, that the forms and method o f

proceeding are so little attended to, and so little understood : for, this is perhaps the first occasion where any question o f law, upon a writ o

error to reverse a n outlawry in

a criminal case, ever underwent a serious liti gation. Outlawry in civil actions is considered a

s in

the nature o f

civil process, to compel a n ap

pearance to the suit; or, ifafter judgment, to

procure satisfaction. The forfeiture, though nominally to the king, yet in truth goes to the plaintiff, towards payment o

his demand. If

the outlaw appears, pays a ll

the costs, puts in

sufficient bail, and does every thing h e

can to

put the plaintiff in a s good a condition a s

h e

would have been in originally ; or if ,

after judgment the outlaw pays the debt and costs; the Court reverses the outlawry upon motion, without any writ o

error. The form o f

the re versal always is

“For the errors assigned and other errors appearing upon the record:” al though there is

, in truth, n o

error a t

all. Flight, in criminal cases, is itself a crime.

If an innocent man flies for treason or felony,

h e

forfeits a ll

his goods and chattels. Out lawry, in a capital case, is a

s a conviction for

1099] 4--10 GEORGE III. Case of John Wilkes, esq. [1100 the crime; and many men who never were tried have been executed upon the outlawry. In misdemeanours, outlawry is generally a more severe punishment than would be inflicted For the crime of which the outlaw stands ac cused or convicted. It is a forfeiture of his goods and chattels, and a

the profits o f

his real estate; and perpetual imprisonment, with many incapacities. If it is erroneous, it can not be reversed without awritof error. Till the third o

queen Anne, awrit o f

error

in any criminal case was held to b e merely

e r gratio. Lord-keeper lays it down”, “that

a writ of error in a criminal matter was er gratia regis, in a

ll cases;” and said,+ “He had a collection of several cases outof the old books o

the law, that were given him b y

lord chief justice Hales, which shew that writs o

error in criminal cases are not grantable “ex debito justitiae,’ but ‘ex gratia regis:’ and in

such a case, a man ought to make application

to the king; and he will then refer it to his counsel; and if they certify that there is error, the king will not deny a writ o

error.” It never was granted, except when the king, fromjustice, where there really was error, o

from favour, though there was n o error, was

willing the outlawry should b e

reversed. After

a writ o f

error granted, the attorney-general never made any opposition; because, either h

had certified “there was error,” and then hecould not argue against his own certificate; o

the crown meant to shew favour, and then h

had

orders “not to oppose.” The king, who alone was concerned a

the prosecutor, and who had

the absolute power o f

pardon, being willing that the outlawry should be reversed, this court reversed upon very slight and trivial objections, which could not have prevailed, if any opposi tion had been made, o

r if the precedent had been o

consequence. The form o f

reversal,

“for the errors assigned and other errors ap earing upon record,” delivered the Court from the necessity o

f specifying any; and they might think themselves wellwarranted to

reverse, upon the tacit o r express consent o f

the king, where h

alone was concerned to oppose; though there really was n

error a t

all: and,

a s

the king had the power to refuse awrit o f

error, the precedent was o f

n o consequence.

But in the 3d o f queen Anne,’t ten o f

the judges were o

opinion, “that in a ll

cases under

treason and felony, a writ o f

error was not merely o

grace; but ought to be granted.’ Price and Smith were o

f a contrary opinion,

“that a writ o f

errorwas o fgrace only, in a ll

criminal cases.” The ten#.mean ‘ that

it was a writ o f course;' but that, “where

there was probable error, it ought not to be

denied.”

It cannot issue now, without a fiat from the

* 1 Vernon 170. Crawle v.Crawle.

tWid. 1 Wern. 175, in the Rioters' case.— Burrow. Qu. also, and vide Salk. 504.

# W .

the Ailsbury Case, vol. 14, p .

861. Salk. 264.

attorney-general; who always examines whe ther it b

e sought merely for delay, o r upon a

probable error.

In the case o f

the King against Earbury," the opinion o

the Court was taken, before the attorney-general granted his fiat for a writ o

error. In the present case theattorney-gene ral refused his fiat, while the defendant was out

o f custody.

This opinion in the 3d o f queen Anne has

made a great alteration a s

to outlawries in

criminal cases under treason and felony. In a

misdemeanour, if there be probable cause, it

ought not to be denied. This Court would

order the attorney-general to grant his fiat. But be the error ever so manifest in treason or felony, the king's pleasure to deny the writ is

conclusive. Lord Muskerry, theson and heir

o f

the earl o f Clancarty, petitioned for a writ

o ferror, to reverse his father's outlawry; be

cause his father was a prisoner in the Tower

o f

London during the whole time o f

the pro ceedings. him. The fact was verifiedbeyond doubt, by entries from the books of the Tower, and b

the affidavit o f

the duchess o f

Marlborough. The late lord chief justice Willes, then attorney-general, reported the writ to b

e merely o fgrace: and, upon political

reasons, it was ºy

refused; and the out lawry stands.

A writ o f

error being a s amatter o f right,

where there is error in the outlawry; since the 3

d o f

queen Anne, in a ll

crimes under treason and felony, “What is an error?’ be came a

n important question: which was o f

n o

consequence, before. Since that time, this Court has not given way to trivial objections, though admitted b

the attorney-general. In

1708, lord Griffint was brought into this court upon a n outlawry for high treason: and upon the prayer o f

the solicitor-general, (there being

then n o attorney-general,) a rule was made for his execution. He was reprieved, from time

to time, till his death. His grandson and heir, from the grace and favour o

f king George the 1st, obtained a writ o

error. Sir Philip Yorke, then attorney-general, came into court, and said h

had a sign manual, “to confess the errors and consent to the reversal.” The Court told him, “ His confessing an error in law would not do: they must judge it to be an

error; and their judgment would b e a prece

dent. But the plaintiff in error might assi an error in fact; which, b

proper authority, might confess.” . Accordingly, the plaintiff as signed a

error in fact, viz. “that the place o f

his grandfather's residence was in the county o f

Northampton; whereas h e

had been outlawed in

London.” The attorney-general confessed the fact: whereupon, the outlawry was reversed.t Since the 3

o fqueen Anne, n o question o f

law has been litigated, upon awrit o

error to re

* 9 Geo. 1. Fortes. 38, 39.

+ See concerning him, the Case o f

lord Dela mere, vol. 11, p

511, and vol. 18, pp. 854,855.

t Hill. 15 G. 1.

4 .

1101] A. D. 1763–1770. [1102on two Informations for Libels. verse an outlawry; no criminal outlawry has been reversed upon a trivial objection: no case, since that time, has been found, of either kind. Outlawry is an essential part of the criminal law. The rules and method of proceeding are wisely calculated to prevent ignorance and sur rize. The consequences are made severe, ause the offence is heinous; and it imports

the state, that no man should fly from the laws and justice of his country. This Court isbound to pronounce the law as they think it is; al ways leaning to the favourable side, where they doubt: for, so says the law. It is asmuch a breach of duty to reverse a good as it would be to affirm a bad outlawry. The mischief goes farther than an unrighteous sentence in the particular case. For, to reverse without an error, is to abolish that part of the law. And therefore serjeant Glynn admitted that criminal outlawries were not to be reversed of course: an errormust be found.

In a matter where the consequence may be so penal to the defendant in this particular case;

where the grounds of the judgment must be so important to a very essential º: of the criminal law, never before brought adversely in question, and therefore lying under great ob scurity and confusion; I feelmyself extremel obliged (and I think the public obliged) to those who, in the short time taken for consideration,

have searched the subject to the bottom. From thematerials with which I have been furnished, I think myself sufficiently, instructed, to form an opinion: and I will declare the grounds and reasons of that opinion which l have formed, to this great and numerous audience, with as much accuracy and precision as 1 can, to pre vent misapprehension.

There are two sorts of error which have been assigned and argued. 1st, The first sort are errors which give rise to questions of law, and to real arguments. 3d, The second are criticisms upon words and syllables in the return. Of the first sort, two are assigned.— That there is no sufficient information filed or exhibited against the defendant, whereon to ground the process ofoutlawry. That no public proclamation whatsoever is mentioned to have been made at any open court, or at any general quarter sessions of the peace whatsoever; or at the doors of any pa rish church where the said defendant was an inhabitant; according to the exigency of the said writ of Capias cum Proclamatione.

Under the first error assigned, three objec tions have been made.— 1st, That the information is by the solicitor general, and not the attorney-general. 2d, That an outlawry does not li e upon a n

information. 3d, That though it may lie upon an infor mation, yet it does not lie for such a n

offence

a s is prosecuted in either o f

these cases.

First—The information is b y

the solicitor general.

If this objection is founded, itwill equally hold upon a motion in arrest o

f judgment. But, I believe, none of us, from the beginning, ever entertained the least doubt concerning it

An information for a misdemeanour is the king's suit. The title o

the cause is ,

“The king against the defendant:’ the oath, a

the trial, to the jurors and the witnesses, is “be tween the king and the defendant.” As a sub ject sues b

attorney, so does the king; with a

little variation o f form, from decency: instead

o f saying, ‘The king sues by—,’ it is said,

‘sues for the king;' and yet, “Coram do mino rege venit" dominus rex per attornatum suum, e

inde producit sectam,” was held to b e

good. (Hale chief justice said, it was but a n

unmannerly way o f

declaring for the king.) The attorney is answerable, if he acts without authority; and upon complaint b

the party whose name h

has falsely used, the Court would punish him, and set aside the proceed ings: but while the principal avows him, nei ther the adverse party nor the Court can dis pute his authority. The coroner o

this court prosecutes informations for the king, a

his attor ney. The form o

the proclamation a t

criminal trials is a strong proof that anciently the king's serjeant might prosecute for the king. When there did not exist such an officer as solicitor general, the king's serjeant o

his attorney o r

other that would sue for the king, should b e

received to aver against the testimony o f

the parties imprisonment, where the outlawry was pronounced a

the king's suit. There are many entries in Rastal,t which shew that a

the common law others than the attorney-gene ral have sued for the king ; or, in other words, the king has sued b

others a s

his attornies, Serjeant Glynn cited a manuscript treatise concerning the Star-chamber; o

which Mr. Filmer has a copy : the original is in theMu seum.5 The author's name is preserved in a note written in this present book, a t

the be ginning, b y

the lord keeper Finch, a s

follows— “This treatise was compiled b

William Hud son o

f Gray’s-inn, esq. one very much prac tised and o

fgreat experience in the Star-cham ber, and my very affectionate friend. His son and heir, Mr. Christopher Hudson, whose hand-writing this book is), after his ther's death gave it to me, 1

9 December, 1635, J. Finch.” Thewhole passage should be

taken together; and is in these words (fol. 84, and 85. “It remaineth that I shall, in the next place, treat o

the king's ordinary suits: which are o

two sorts; either b y

his attorney, informing o

fhimself, o r b y

other men's relations,

and b y

the king's almoner; the one being in

criminal causes, the other in civil. For the

* 2 Lev. 82. 3 Keble 127. Rastal's Entr. 655, b

. See, also, stat. 33 H. 8 , c . 39, s. 52.

+ Vid. 5 ºd. 3 , c .

13.

: Title Debt. 192, o.pl. 4. Title Escheat 114,

b . p l.

3 .

Title Quare impedit, 527, b ,

p l. 1 .

§ Harleian Catalogue, No. 1226, vol. 1.

has been since published.

1103] 4–10 GEORGE III. Case ofJohn Wilkes, esq. [1104 king's attorney, I have known it much ques-

|tioned, whether any other of the king's counsel may not inform fo

the king, a s

well a s

the a t

torney general. And it is true, that in Easter term, 8 H. 8

, it is ordered that the king's soli

citor shall not prosecute any further the mer chants o

the Stiliard, till it were otherwise ordered b

the council : and the same term,

the solicitor was commanded to sue out rocess against some which acquitted one Blase o

f a rape. (fol. 85.) So that it seeineth,

that others o f

the king's counsel did pro secute causes for the king, a

well as the king's attorney. But in 1 and 2 James the first, it was resolved by the Court, that it

belongeth to the place o f

the attorney. And serjeant Heale, the king's serjeant, putting in a

bill against sir John Luson, was denied that privilege. For, if a bill be put in b

the king's counsel a

for the king, there are n o

costs to

b e paid for the defendant, nor fees for the pro

secution: but in this case, serjeant Heale’s bill was dismissed with 30l. costs; it continuing

in prosecution not above two terms.” It is astonishing how any other law-officer o

the king could claim, a

a n

official right, to b e

the king's attorney in a

suits which h e

should think fi

t tobring in the king's name. The very

constitution o f

a n attorney-general is decisive

against it .

Hemight stop every suit brought

b y

another. And therefore the counseldid very right, a

between the king's law-officers, to

over-rule serjeant Heale: but they did not mean, that the king himself, for special reasons, might not appoint another to act a

his attorney. In that reign afterwards, Yelverton was suspended, and the solicitor appointed to

act. Suppose the attorney-general personally the defendant : there must be another to sue

for the king. Suppose the attorney-general out o

the realm; o r

under a disability from sickness: suppose the office o

f attorney-ge neral vacant. When it is

the business (which cannot stand still) must devolve upon another

o f

the king's counsel; and there is nothing so

certain, a s

that the whole business and autho rity o

the attorney devolves upon the solicitor general. I am satisfied, that if the matter was traced, the two precedents in Easter term,

8 Hen. 8 ,

mentioned b y

Mr. Hudson, were during the vacancy o

the attorney's office. It

is impossible the counsel could, in the same term, order the solicitor-general to stop one public prosecution and commence another, if

there had been a n attorney-general. As far

a s

the memory o f

the vacancies o f

the attor ney's office has led to a search, precedents have been found o

informations filed b y

the solici tor-general, in Chancery, and o n

the law side of the Exchequer. In this court, the infor mation against the earl o f

Devonshire” was prosecuted b y

the solicitor-general : and though the enormity o

the fine set, and the revolution o

government which immediatel followed, made this case the subject o

fº

animadversion and just censure; “the soli citor-general having prosecuted,” was never objected. There are precedents o

f replying, demurring, taking issue, praying judgment

o r

award o f

execution, b y

the solicitor-general, during the vacancy o

the other office. We

a ll know, from our own experience, that upon

every vacancy which we remember o f

the at torney's place, his office has been executed b

the solicitor-general. But it is said, ' The in formation ought to have suggested that the of. fice o

attorney was vacant.” Many o f

the precedents d

not suggest it; and there can be

n o

occasion. The attorney general is a great officer of the law and of this court. The Court take notice when the office is vacant; and by whom it is filled, when full. They gave credit

to the solicitor-general, when h e

sues a s

attor ney for the king, ‘that he has authority.” He does it a

his peril. In this case, before thede fendant pleaded, the solicitor-general was made attorney, and in that capacity brought into court the information he had filed as solicitor.

If an objection could lie to his authority asso licitor, the only question would be, “From what time the information should be considered

a s

commenced: from the filing b y

the solici tor; or the bringing into court b

the attor ney.” And that could b

o f

n o consequence,

but in respect o f

the time when the defendant ought to plead. But he has pleaded to the in formation brought in b

the attorney-general; and been tried. In every light and in every view, this objection is groundless : nothing has been offered to support it

but serjeant Heale's case. Upon so plain a point, I certainly should not have said so much, but that the objection also goes in arrest o f judgment, and therefore

may b e argued again. The counsel are ap

prized o f my reasons; and if they should think their objection tenable, I am open to

conviction.

Second objection under the first error as signed—“That a

n outlawry does not lie upon an information.”

The counsel for the defendant supported this objection, two ways. First, they say, the books were silent on this head: the statute of

Additionsmentions only that ‘in original writs

* o f

personal actions, appeals, and indictments, “in which the exigent shall be awarded, &c.” But an information is not therein mentioned. Secondly, they said, that from the nature o

the process in a n information, the exigent was

not awardable. For, the proceeding b y

infor mation in this court is similar to the Star Chamber precedents: and in such proceedings, they did not award a Capias, but a Subpoena. That here, the antecedent process is b

sum mons o

f attachment, not b y

Capias: and con sequently, if there is noCapias to introduce the process o

f exigent, it cannot li e

in this case. Serjeant Glynn admitted, a

s a point beyond a ll

doubt, “ that informations of this kind were–

* 8 Jac. 2. See vol. 11, p .

1353. * Wid. 1 H , 5 ,

c . 5 , § 1.

1105] A. D. 1763–1770. [1106on two Informations for Libels. * competent, in this court, at the common-law.” No lawyer ever doubted of it

n o lawyer would

seriously argue against it .

S o

that sir Bartho lomew Shower had n

o opportunity to deliver the argument h

has printed.* Informations here neither derive their being, nor the form o

roceeding upon them, from the Star-Cham r; but from the common-law of the land,

and the usage and practice o f

this court where they are exhibited. Although informations are not mentioned in the statute o

f Additions, yet the same requisites o

f certainty and precision must b

in a n information, a s in a n

indictment.* Presentment is not mentioned in this statute.

And yet, o n a presentment before the coroner,

• That French was fºlo dese,” (which was cer tified into the King's-bench,) and that certain

• o f

French's goods were in the possession o f

‘J. S.” process issued against J. S. until he was outlawed. “And upon error brought for that “there was not any addition given to the said ‘J. S. in the presentment upon which he was

* outlawed,” it was a t

first doubted “whether “upon that presentment process o

f outlawry

* did lie:’ and Ive, clerk o f

the Crown-office,

said to the Court, ‘ that such process in such

* case did lie: and that he could shew five hun “dred precedents o

it.' And, secondly, it was moved, “if this outlawry ought to be reversed

• for default o f

addition.' But it was agreed by the whole Court, that a

to this purpose, the resentment should b

accounted in law a s

indictment.: To an information in nature o f a

QuoWarranto, toshew b y

what authority thede fendant claimed to be aburgess o

f Grampound, the defendant pleaded in abatement, for want o

proper addition; the infºrmation styling him

* labourer,' whereas h e

was clothier; and this plea was moved to b

set aside, o n

the ground,

* that a n

addition was not necessary.’ The Court refused to set it aside on that ground :

but they found another, the want o f a proper

affidavit to verify the plea. There seems a s

good ground to say, upon the foot o f prece

dents and construction of the statute of Addi tions, “that process o

f outlawry lies, and addi *tion is requisite in an information,” as in the presentment in French's case. A

s to the other

argument from the nature o f

the process—there

was n o

autho ity o r precedent cited o r pro

duced, to prove the assertion. On the con trary, there are many precedents where the rocess was b

Capias; and the Exigent fol lowed : some, a

in the present case; though most are before conviction. But ‘ that aCa

“ pias does lie, inlº upon these informa*tions,' I take to be as old as theirexistence.

If not, how could there have been such a num ber o

outlawries upon informations; and some,

* 1 Shower t06. Rex. v. Berchet, et al. Prynn's Case, 5Mod. 459.

+ 2 Hawkins P . C . 260,261.

# Frenche's Case, Mich. 2 6 Eliz. 2 Leo nard 200.

|| The King against Pardew, H. 15 G . 2 ,

1741. WOL. XIX.

of ancient date? All these records are so many authorities to support this process; which are not, after sogreat a length o

unquestioned usage, to b

now impeached.” And it is ob servable o

the 1 8

Edw. 3 ,

stat. 1 ,

that it not only clearly relates to a proceeding before judgment; but it gives the Exigent, if the party is not brought in o

a n

attachment o r dis

tress. However, there is no need to resort to

that kind o f

reasoning, when usage supports

theCapias, in the present case, a s

the common process upon these occasions.

Third objection under the first error as signed—“That outlawry does not lie, from the “nature of the offence.”

This objection was slightly touched b y

Mr. Serjeant Glynn; but struck us, at first, as a

point fi t

to b e

considered: and I mentioned to

the bar, “that it might b e proper to look into

‘ it.” The doubt was, “whether the offence

‘ charged in either o f

these informations was ‘such as rendered the person accused o

such ‘crime liable to the process o

f outlawry, either ‘ at common-law, or b y

any statute.” In Coke Littleton, 128 b

. it is said, ‘ that in the reign o f

‘king Alfred, and till a good while after the ‘Conquest, n

man could b e

outlawed but for “felony; the punishment whereof was death:

‘ but after, in Bracton's time and somewhat be “fore, process o

f outlawry was ordained to lie

‘in all actions that were quare vi et armis,”

* which [3racton calls Delicia,” for there the

‘ king shall have a fine.” The 18 Edw. 3 ,

st .

1 ,

declares the cases and offences for which the Exigent shall be awarded, if the party cannot

b e

found o r brought in b y

attachment o r dis

tress; and not against any other. Also, the

1 8 Edw. 3 ,

stat. 2 ,

c . 5 ,

says,—“No Exigent “shall from henceſorth go out, where a man is

“indicted o f trespass; unless it b e against the

‘peace, o r

o f things which b e

contained in the “declaration made in that case a t

the last par ‘liament.” But upon full consideration, I am very well satisfied that the counsel for the de fendant judged right in laying n

stress upon

this objection. The offences laid in these in formations, and the proceedings upon them, are a

the common-law. The statutes giving process o

f outlawry in certain cases, and re stricting it

s issuing in others but under certain circumstances, d

not affect the present ques tion: the process is warranted, in the present case, b

the common-law, o r

not a t

all. Actua. force o

violence does not appear to b e

the cri terion upon which the process o

f outlawry was founded. The greatness o

the crime, and the severity o

the punishment, seem to b e

the material circumstances originally attended to,

in founding this process, according to the passage I have just cited from Coke, as to the earliest times; for, felony does not imply o

convey the idea o f

actual outrage; grand larceny being in it

s definition, a s

well a s prac

tice, different. And Hawkins confirms this no

* 5Mod.463, 464,

4 B

1107] 4-10GEORGE III. Case of John Wilkes, esq. [1108 tion, byº “ that this process probably“lay for all crimes of a higher nature" than

• trespass v i e t

armis.’ The extension o f

this process is supposed b

lord Coke, in the pas sage I quoted, (and what he says, is repeated, without examination, b

y a variety o f authors),

to have been somewhat before Bracton's time.

The establishing that period, for a supposed ordinance concerning outlawries, strongly

authenticates the testimony o f

that co temporary writer, touching the cases in

which, and under what circumstances this process, lay. Lord Coke saw,

that it was

impossible to say, “that outlawry did not li e

for any crime under felony:’ universal prac tice shewed the centrary. So h

e supposes a

sitive statute made about Bracton's time.

here does not appear any particular ordinance for extending this process: and there is n

oau thority for the supposition. But Bracton (who wrote in the reign o

f Henry the 3d) + says,

“that it lay in omni transgressione quae fi t

con “tra pacem;’ and afterwards, “ pro omni

• trans ione, licet minimà, ubiquis adpa “cem domini regis vocatus, venire recusaverit,

* e t

hoc propter contumaciam.' That this ne cessary ingredient, • contra pacem,” did not mean positive force in the committing o

the offence, appears from the reason given why it

lay for felony, 2 Ro. Abr. 805. “Outlawry lay for felony; because it was contra pacem.” For, that could not mean (as l have already said) more than it

being a n

offence in it s

na ture against the laws o

f society, and a disturb ance o

that good order and government which keeps a state in unity and peace. The crime

o f

ſarceny, in it s very nature, is secret and

fraudulent, unless it b e

donewith open violence;

and then it is distinguished by the aggravated name o

f robbery. Besides, in the case o f

writs quare v

i e t armis, (in which cases this process

isgiven,) it is acknowledged to b e

o n

account

o f

the supposed, not the actual force. And s o

is the same place in 2 Ro. Abr. 805, and the

3 5 H., 6. ,

(a )

and (b )

and many other books.

In fact, therefore, it appears from Bracton, “that every offence committed against the peace subjected the delinquent to the process o

outlawry.’ And the cases shew, that the peace

o f

the king is broke b y

disorders without force. And indeed some o

the greatest crimes are without force. If force was the criterion on which this process o

f exigent was founded at

common-law, why was that process given b y

the first statute of Edward º third,t in the case o

riots, &c. P. Or what occasion had there been for the subsequent statute o

Edward the third || tosay—‘From henceforth, it shall not issue in trespass, unless it is against the peace, if the practice had not been, upon in dictments, though not so alleged, for process

o f exigent to issue 2 And that seems to b e

the

* 2 Hawkins P . C . l. 2 , c . 27, p .

302.

T Lib. 3 ,

p .

127, b .

t 18 Edw. 3 ,

st .

1 .

| 18 Edw. 3, st. 2, c. 5.

true reason o f

the last restrictive statute. I do not find it ever was denied, but that upon a

presentment o r

indictment for the king, process

o f outlawry lay: and so it is expressly said to

b e agreed, in Brooke, title ‘Exigent; which

cites 8 H. 6." But a number of outlawries have been found, in crimes laid to be contra pacem, without v

e t armis, and which could

not b e

committed with force; and this error never assigned: which, alone, is decisive. I

think, Mr. Attorney General produced one a s

far back as the fifth of Edward the fourth.

The second error assigned is as to the pro clamations.

The return says—'I have caused publicpro clamation to b

e made, inmanner and form a s I

am within commanded.” This is certainly too ldose: the proclamations are not sufficiently set out, for the Court to judge whether they

were properly made o r

not. I thought this error fatal. But Mr. Thurlow satisfied me, ‘that itwas unnecessary to make any procla mation a

all.” The statutes which require proclamations d

not extend to this case : and they are not required b

the common-law; Indeed, this error was in a manner dropped

and given u p b y

serjeant Glynn, upon his re ply: The did not contend, “that they were ne cessary.’ The present record, drawn in the Crown-office ifsettled b

the king's counsel,

shews under what obscurity and perplexity this matter lies: the result o

f ignorance in theº ; and productive of a shameful conusion in the precedents of the office. The have not distinguished between civil and cri minal outlawries: they have not distinguished between the manner o

fproceeding to outlaw in

criminal cases, before and after conviction.t All is jumbled together: whatever is required

in any case, they have applied to all. Cir cumstances are unnecessarily required, and de fectively returned; because former mistakes are copied a s precedents, without examina tion. But, as the proclamations, in this case, were nugatory and superfluous, the imperfec tion o

the return is o f

n o consequence : it is

no error.

Of the second sort o f

errors, critical and

* Wide Bro. Abr. title Exigent and Capias, pl. 29, and title Process, pl. 16.

+ “The stat. 31Eliz. c. 3 ,

settles the form in

civil proceedings; and the 4 & 5 W. &M.

c . 22, § 4 ,

extends the provisions o f

the former act to criminal cases before judgment. For there is a difference in that respect whether the outlawry h

after o r

before judgment, for if

after judgment n o proclamation is necessary.

And unless that distinction he attended to in

Wilkes's Case, that case, a s reported inBur

row maymislead, for the arguments are not stated. In fact that was an outlawry after conviction, and therefore it did not comewithin the statute o

W. & M.” Per Buller J. in the Case o

fGeorge Barrington, 3 Term Rep. 499; see, too, p

503.

4 .

1109] A. D. 1763–1770. [1110on two Informations for Libels. verbal, two are assigned: which were ar gued.

1st, For that it is not shewn, nor does itap pear by the return of the sheriffofMiddlesex, * that the defendant was a first, second, third, fourth, and fifth time exacted at the county.

scourt of the county of Middlesex;' a s, b y

the law o

the land, h e ought to have been, before

lie was outlawed.

Under this error thus assigned, two objec tions weremade: a

to the first exaction; and as to the subsequent. First, A

s to the first.—The return is b y

two men, sheriff o

Middlesex: “At my county court, held, &c.” S

that two men, making one officer, that is

sheriff o f

the county o f

Middlesex, say, “At my court held in the county o

Middlesex.” To raise a doubt, it is

necessary to g o

out o f

the record, into history and law. We know from thence, that the same man might b

sheriff o f

two counties. Till the 13th o

Elizabeth one person was sheriff o f

Somerset and Dorsetshire; and so o f

Sussex and Surrey; o

Oxford and Berks; o fNottingham

and Leicestershire; and to this day, the same person is sheriff o

f Cambridge and Hunting donshire. Such a sheriff might by law hold

in either, the county-court of the other. 6 H .

7 ,

15 b . In the case o f

the sheriff o f

Somer set, who was then also sheriff o

Dorsetshire, “my court in the county of Somerset' was adjudged uncertain. 1

1 H . 7 ,

1 0 a ,

in a like case, Rede Fairfax and Hussey inclined to

think it certain enough ; and adjourned the consideration. But here it is impossible to

raise a doubt. Unless the sheriff o f

Middle sex, may hold the court o

another county in

Middlesex, “Atmy county-court,’ can only be

the county-court o f

Middlesex. Two men, sheriff o

f Middlesex, never were nor could be

sheriff o f any other county. The error is not

assigned, for want o f any technical form o f

words; but ‘ that it is not shewn, nor does it

appear b y

the return:’ whereas I am ofopinion

it is shewn, and does appear b y

the return, that the county-court was o

fMiddlesex, and could not possibly b

the court o f any other county.

Secondly.—As to the subsequent exactions —The objection is

“that it is not shewn, nor does it appear, where the court was held, at

which h e

was exacted.’ The return, having specified the place where the court was held a

which h e

was first exacted, states severally the subsequent exactions, “at my court held a

the same place.’ So that the whole doubt is

whether the same place includes the descrip. tion o

the place referred to:’ which cannot

b e a doubt, in any language o f

the world. For,

in truth, the doubt can be no other than whe. ther the same place means the same place, that is ,

the place before described.' .

Second critical error. The only other error assigned and argued, is— “It is no where expressly shewn, that the place called Brook-street, where the several county courts are supposed to have been held,

is in the county o f

Middlesex.' The return says:- A

the house known b y

the sign o f

the Three Tuns in Brook-street, near Holborn,

in the county o f

Middlesex.' The counsel for the defendant contend, that the true construc tion ought to be, to apply “in the county o

Middlesex,” to Holborn, and not to Brook street; and so make a stop, a

Brook-street.*

It is impossible forme to doubt whether near Holborn,’ is not part o

the description o f

Brook-street.f. It could be added for noother

* See 16 Win. 208. Dyer 376, a 2 Hale's Hist. Pl. Cr. 203. 16 Win. 210, pl

17.

t In the case of Thellusson v.Woodford (4

Vesey junior, 227) in argument concerning the construction o

f a will itwas contended ( p .

240) that the rule “ad proximum antecedentem fiat relationisi impediatur sententia,” (as towhich see Rosewell's Case vol. 10, p

147), is a rule

o fgrammar, o f law, and o f

common sense, and that the law forbids reference to a former an tecedent unless upon necessity. But si

Richard Pepper Arden (afterwards lord Al vanley, Ch. Just o

fC.B.)Master of the Rolls, (p .

380) denied the rule that words o f

restric. tion are to b

e applied only to the last antece dent. And by him “It is not so even in cri minal proceedings; to which it is said wemust compare this: but I deny that there is such a

rule even in criminal cases. In those, as in a ll

other cases, the question a s to the intention o f

words o f

reference must depend upon the con text. There are two remarkable cases in the memory o

every one who hears me; the one

a capital case; the other a case upon a n out

lawry, a case in which the Court ismore de sirous o

f finding objections than in any other; and in that very case the objection, upon which the outlawry was ultimately reversed, was con sidered b y

many persons too refined.” The case

o f outlawry towhich his honour alluded was this

o f

Wilkes: the capital case was that o f

Rex

v . Royce, 4 Burrow, 2073. In that case the jury found in a special verdict that certain per sons unlawfully, &c. began to demolish and pull down adwelling house, and that a

the time they began to demolish the dwelling house, the defendant did encourage and abet the said persons in beginning to demolish and pull down the dwelling house, b

shouting and usingex pressions to incite the said persons so to do; and it was argued that the abetting was con. fined to “shouting and using expressions to in cite the said persons so to do,” that is “to shout,” for shouting is the last antecedent. But

b y

lord Mansfield, delivering the opinion o f

the Court, “We are al

o f

opinion that there is

really n o

colour for that construction; it will not hold either in regard to the obvious and mani fest sense and meaning o

the sentence and its context, o

in point o f grammar; “so to do,”

is “to d o

the act,” which act is two o r

three times over in this same sentence specified and described to be, “beginning to demolish and pull down a dwelling house.” In the case o

Carbonel v. Davies, Trin. 1720, (1 Stra. 394),

1111] 4–10 GEORGE III. Case ofJohn Wilkes, esq. [1112 reason: it could answer no end, to say, “near Holborn,' but as part of the name or descrip tion of this Brook-street, in contradistinction to some other Brook-street. It is immaterial what county Holborn is in: but the sheriff was bound to shew that Brook-street was in Mid dlesex. There is no law m this: it is a ques

tion of construction. Allmen can judge of it ;

andwould treat with contempt the judgment o f

this sovereign court, if it could be founded upon so pitiful a prevarication. It is not per mitted to me to say ‘ I doubt of the construc tion,’ unless I do doubt; how much soever I

may wish that this outlawry should not stand.

I am of opinion, that, according to the letter, sense, and grammatical construction o

the sentence, the Court was held in “Brook street near Holborn ;

’

and that “ Brook-street

near Holborn' lies in the county o f

Middlesex: and I am persuaded, there is no man who can think otherwise.

These are the errors which have been ob jected ; and this the manaer and form in which they are assigned. For the reasons I have given, I cannot allow any of them. It was our duty, a

well a s

our inclination, sedulously

to consider whether upon any other ground,

o r in any other light, we could find a n infor.

mality which we might allow with satisfaction

to our own minds, and avow to the world. But here, le

me pause—

It is fit to take some notice of the various terrors hung out ; the numerous crowds which haveattended and now attend in and about the hall, out o

f a ll

reach o f

hearing what passes

in court; and the tumults which, in other places, have shamefully insulted a

order and government. Audacious addresses in print dictate to us, from those they call the people, the judgment to be given now, and afterwards upon the conviction. Reasons o

f policy are urged, from danger to the kingdom, b

com motions and general confusion.

Give me leave to take the opportunity o f

this great and respectable audience, to le t

the

whole world know, a ll

such attempts are vain. Unless we have beenable to find an error which

will bear us out, to reverse the outlawry, it

upon a promissory note set out to bemade 2 d

o f

November 1719, to pay o n

the 31st o f De

cember next, it was argued that the word

* next,” did not refer to the date o f

the note,

but to the time o f declaring; so that the plain

tiff complains in Trinity term, that at that time the defendant haſ not paid a sum o

fmoney which h

was obliged b y

note to pay in De. cember next. But per curiam, “Wemust take

it ‘secunduu subjectam materiam,' and as a

translation o f

the note, and then it can be no otherwise than a note the 2d o f

November 1719, to pay in December next, which is next after the date o

the note.” See also in vol. 13,

p .

224, lord chief justice Treby’s qualifi. cation o

the rule fo r

applying the relative to

the last antecedent. -

must be affirmed. The constitution does not allow reasons o

state to influence our judg ments : God forbid it should ! Wemust bot regard political consequences, how formidable soever they might be: if rebellion was the certain consequence, we are bound to say,

* Fiat justitia, ruat coelum.” The constitution trusts the king with reasons o

state and po licy; he may stop prosecutions; hemay par don offences; it is bis, to judge whether the law o

the criminal should yield. We have

n o

election. None o f

u s encouraged o rap

proved the commission o f

either o f

the crimes of which the defendant is convicted : none of

u s

had any hand in his being prosecuted. As to

myself, I took no part (in another place,) in the addresses for that prosecution. We did not advise o

assist the detendant to fly from justice:

it was his own act; and h e

must take the con sequences. None o

u s

have been consulted,

o r

had any thing to d o

with the present pro secution. It is not in our power to stop it: it

was not in our power to bring it on. We can not pardon. We are to say, what we take the law to be: if we do not speak our real opi nions, we prevaricate with God and our own consciences.

I pass over many anonymous letters I have received. Those in print are public: and some o

them have been brought judicially be fore the Court. Whoever the writers are, they take the wrong way. I will do my duty, un awed. What am I to fear? That mendar infº mia from the press, which daily coins false facts and false motives? The lies o

f calumny carry n

terror to me. I trust, that my temper

o f

mind, and the colour and conduct o fmy

liſe, have given me a suit o f

armour against these arrows. If ,

during this king's reign, I

have ever supported his government, and as sisted his measures, I have doue it without any other reward, than the consciousness o f

doing what I thought right. If I have ever opposed, I have done it upon the points them selves, without mixing in party o

r faction, and without any collateral views. I honour the king ; and respect the people: but, many things acquired b

the favour o feither, are, in

my account, objects not worth ambition. I

wish popularity”, but, it is that popularity

* “A popular judge is a deformed thing: and plaudites are fitter for players than formagis trates. Do good to the People; love them and give them justice; but le

t it b e

a s

the psalm says, “ nihil inde expectantes,’ looking for no thing, neither praise uor profit.” Lord Bacon's speech in the Star Chamber before the summer circuits in the year 1617. Lord Mansfield's expressions in the text con cerning popularity were some years after wards criticised b

Mr. Horne in the court

o f King’s-bench. See his Case for a libel,

A .

D .

1776. The general structure o f

this speech o

the Chief-Justice was not spared b y

his enemies a t

the time. In “Another Letter

toMr. Almon’ is the following passage:

1113] on two Infºrmations for Libels.

which follows; not that which is run after. It is that popularity which, sooner or later, never fails to do justice to the pursuit of noble ends, by noble means. I will not do that which my conscience tells me is wrong, upon this occa sion, to gain the huzzas of thousands, or the daily praise of a

the papers which come from the press: I will not avoid doing what l think

is right, though it should draw onme the whole artillery o

f libels; a ll

that falsehood and malice can invent, o

the credulity o f a deluded popu

lace can swallow. I can say, with a great ma gistrate, upon a

occasion and under circum

“With acute practisers every studied pre face o

f impartiality, o fprodigious firmness, o f a

disregard o fdanger even to the loss o f life, and

of an extreme anxiousness in any crown pro secution to find out the smallest iota o

f justifi cation for the defendant, will only raise a

n ex traordinary attention to every colour o

f good

o r evil, to every shade o r light, made use o f b y

such judge, and to the whole o f

his gesture;

for their jealousy will be set on the watch b y

the undueness and unusualness of an elaborate exordium from the chaste bench o

sober judi cature. What should make so artificial a be ginning necessary 2 Judges who mean nothing unfair need never recur to these meretricious

arts. Why then should you use them P Do you imagine the world suspects you o

some design o

not doing your duty 2 If not, itmust be your consciousness o

intending some dui. that makes you thus call in beforeland such guards toyour reputation. Genuine simplicity and pure virtue are ever devoid o

fictitious ornaments. Every extraordinary de claration, side speech, hint, tone o

f voice, look

o r

gesticulation will furnish matter o f

animad version, and the user finally dupes himself aud becomes the sacrifice o

his own artifice; what ever seeming conviction and rhetorical ap plause his argument o

oration may carry with 1hem a

the time. Truth stands the edge o f

professional and popular discussion, but so phistry o

f neither; for it cannot alter the na ture o

f things, although it will disguise their appearance for a while. Time will always sooner o

later detect the adultery. “Opi

* nionum commenta delet dies, naturae judicia

• confirinai.’” And it is to be observed that to the quotation from Cicero “Ego hoc animo,” &c. Mr. Ser jeant Hill in his copy o

Burrow had written

a s a note the following passage o f

Swift. (See

4 Burrow, 2562-3, 8vo edition of 1812.) “The world will never allow any man that character which h

e gives to himself b y

openly professing it to those with whom h

conver seth. Wit, learning, valour, acquaintance, the esteem o f good men, will be known although

we should endeavour to conceal them, however they may pass unrewarded: but 1 doubt our own bare assertious upon any o f

these points,

will b e

o f

very little avail, except in tempting

the hearers to judge directly contrary to what we advance.”

stances not unlike, “Ego hoc animo semper fui, u

invidiam virtute partam, gloriam, haud infamiam, putarem.” The threats g

further than abuse: per sonal violence is denounced. I do not believe it: it is not the genius of the worst men o

this country, in the worst o f

times. But I

have set my mind a t

rest. The last end that can happen to any man, never comes too soon,

if he falls in support of the law and liberty o f

his country (for, liberty is synonymous to law and ..";

a shock, too, might

b e productive o f public good : it might awake

the better part o f

the kingdom out o f

that lethargy which seems to have benumbed them; and bring the mad part back to their senses, a

men intoxicated are sometimes stunned into sobriety.

Once for all, let it b e understood, ‘ that no

endeavours o f

this kind will influence any man who a

t present sits here.” If they had any effect, it would be contrary to their intent :

leaning against their impression, might give a

bias the other way. But I hope, and I know, that I have fortitude enough to resist even that weakness. No libels, n

o threats, nothing that has happened, nothing that can happen, will weigh a feather against allowing the defendant, upon this and every other question, not only the whole advantage h

e is entitled to from sub

stantial law and justice; but every benefit from the most critical nicety o

f form, which any other defendant could claim under the like objection. The only effect I feel, is an anxiet

to b e

able to explain the grounds upon whic we proceed; so a

to satisfy a ll mankind,

‘that a flaw o f

form given way to in this case, could not have been got over in any other.” From the precedents we have seen, it ap pears, that a series o f judgments have required

a technical form o f words, in the description

o f

the county-court a t

which an outlaw isex acted: that after the words “at my county court,” should b

added the name o f

the county; and after the word “held,” should b

added—" for the county o f (naming

it). Whereas here, the sheriff says, “at my county court,’ without adding—' o

Middle sex:’ and he says—' held at the house,’ &c. without adding the words, “for the county o

Middlesex,” after the word “held.”

A s to the first expression, the cases begin a s

far back as the seventh of James the first. As

to the second expression, they begin about the 18th o

Charles the second.

If we are compelled by authority to look upon either expression a

s technically neces sary, it is sufficient upon this occasion; because, here, both are wanting.

If an outlawry be returned in this manner—

* Ad com. meum tent. apud Cicestriam in co “mitatu Sussex, &c.’ it is erroneous; because

it is not said “ad com. meum Sussex tentum,

*&c.” Alder was outlawed for murder; and

* P. 7 Jac. 2. Ro. Abr. 802, Whiting's Case.

1115] 4-10GEORGE III. Case of John Wilkes, esq. [1110 it was moved for error, that the sheriff re turned ‘ad com. meum tentum apud D. in the • county of Northumberland,’ and did not say, *ad com. meum Northumbriae tentum, &c.:” and thiswas holden to be error.” Among the errors for which, the reporter says, the out lawry was reversed, the second is—not said * Suffolciae,” after “ com. meum:” and this, he says, had been a common exception. Three copies have been left with us, from the re cords: and they are, ‘ad com. meum; Middle “sex tent. &c.;’ agreeably to the judgments I have mentioned. Winnington assigned error ofoutlawry : and one, said to be allowed, was, “ that the court is said to be held at the county

ofHereford;’ and doth not say ‘for the county.'" An outlawry was reversed, because said ‘ad * com. meum, &c.’ and not said “pro comitatu.’ This term, several outlawries were reversed, for want of ‘pro com.’ or ‘nec eorum aliquis,” or “per judicium coronatorum.” One who was outlawed for the murder of si

r Edmondbury

Godfrey, now brought a writ o f

error in his hand to the bar; ,praying “ that it might b

read and allowed.” The outlawry was re versed. Among the errors assigned, one was, ‘ that it did not appear the Court was held pro comitatu.” The other was clearly a

fatal objection.th After stating the case, sir Bartholomew Shower says— she brings awrit

o ferror, to reverse the outlawry; and the error

which I assigned ore tenus, was the usual fault,

in not saying the county-court was held “pro

* comitatu.” Theoutlawry was reversed.}} This

is a very strong authority, to shew that in the third ofW. and M. it was settled “ that the “words ‘pro comitatu' were technically neces cessary.’ A record o

a n outlawry has been

found, agreeable to this form, established a s

necessary; and says a d

com. meum. tent. ‘pro com. Middlesex, apud le Cheshire. ‘cheese in Gray’s-inn lane in com. praedict.'" ||

No case, report, o r

record has been found,

since the third o f

queen Anne, which can b e o f

any use, either way, upon this point, o r any o f

the errors assigned.

Theauthorities Ihave stated stand to thisday uncontradicted. They are many; and have prevailed above a century. Ii. they begun against law and reason. The former authori

* Mich. 16 Jac. Alder's Case, 2 Roll's Re ports 52.

+ Tr. 13 Car. 2 . 1 Keble 50, 51, Rex v.Si

clemore.

f Rex v. Hallet, H. 22,23 Car. 2, rotulo 16. Rex v. Preston, H.22,23 Car. 2 ,

rotulo 17.Rex

v .

Wernatt. H. 1 , 2 J. 2, rotulo 9.

| M. 18Car. 2. Rex v.Tufton, 2 Keble 128. H.22.23Car. 2. 1Vent. 108, anonymous. ** E. 31 Car. 2. 2Shower 60. +t H

. 1 J. 2. 3 Mod. 89, anonymous: (S. C.* v. Vernatt, left with us from the record.

łł M. 3W. and M. 1 Show. 309. Rex v.

Lady Oneby alias Truder.

|| || Tr. 9W. 3 ,

1697, rotulo 1 Rex v ,

Bell.

ties were otherwise: the precedent in Dalton

is otherwise. There is n o

reason for requiring

thesewords: there is sufficient certainty, with out them. It is impossible to doubt, upon th

record, but that the county-court a t

which th e

defendant was exacted, was the court o f

and

held for the county o f

Middlesex. But, this is

a criminal case, highly penal. Outlawshare had the benefit o

this exception, for a great length o

time. Can we refuse it to th e

defen.

dant P We cannot: though I am clearly ºf

opinion, “there was not a colour *††to hold these words to be necessary.’ The ob.

jection to the blunder between the peace ‘º f

the now,” and “the" late king,' after convic. tion, has not much more solidity in it

;

yet the

House o f

Lords thought themselves boundby recedents. And so must we, had the flºw lº. discovered before judgment. I cannºt say, ‘ that itdoes not appear upon this recºrd that the Court was o

and held for the county

o f

Middlesex: because I am clearly of op :

nion, that, most manifestly, it does.' But, can say, that a series o

f authorities, unimpeach.

e d

and uncontradicted, from the 7th o f

Jame:

1 ,

a s

to one expression, and from th e 18th o f

Charles 2 ,

a s

to the other, have said ‘ºth words are formally necessary:’ I can sa

y that

such authority, though begun without. law,

reason o r

common sense, ought to avail." defendant. Itwould be dangerous, to sa

y* any exception allowed so long, shºuld n

º be

over-ruled. The exception certainly woul.” have prevailed, had it been opposed at first: but, before the third o

fqueen Anne, therebeing

n o opposition after a writ o f

error was granted,

the Court considered the crown as consenſº

to the reversal upon any pretence, how slight

soever. Though that is not the case no". the

necessity o f

the form o f

words must º: canvassed; since it has been so often adjudge

necessary. The officers o f

the crown sº in

fault, for not attending to the form pº

º copying the precedent of the King tºeii. • –– There can b

n o

mischief o r incertainly*

from this determination: because, it* once known what form o

words isneº

it is easy to follow it .

But great suspiciº incertainty must follow, from this coº: .

lowing a formal exception one day, and disal

lowing it in another.

dI beg to be understood, that I gº." º

opinion singly upon the authority ºf

the :

adjudged; which, a s they a re

o n

th etº

ble side, in a criminal case highly P* think ought not to b

e departed ſº º

thereforei a m

bound to say that, fo r**

these technical words, the outlawry ought

be reversed.

The other three judges spoke... º:

a s

their arguments tended tosuppº. had trate the same doctrine which hisº: laid down; and a

s they d id

n o t

differ, "º

* Wide Lookup's Case.

—l

1117] on two Informations for Libels. part, from the opinion given by his lordship; I omit, for the sake of brevity, reporting particu larly what they said. A rule was accordingly made (i

each cause) * That the outlawry be reversed.”

On the same 8th o f

June 1768,

Rules weremade, for the prosecutor to shew cause|. Tuesday then next) why the judgment shouldnot bearrested; and why the ver dict should not be set aside.

And also a rule for now remanding thede fendant to the custody o

f the marshal, and for

bringing him into court again upon Tuesday tnext.

Accordingly, o n Tuesday the 14th o f

June 1768, the two following points were argued, very strenuously and very copiously o

both sides: , namely, “whether the informations “could b

exhibited b y

the solicitor-general;’ and “whether the amendment could be made ‘by a single judge out of court, in the manner

* before specified.” The former was objected to, a

s a ground for arresting the judgment:

the latter, a s a ground for a new trial.

Lord Mansfield, as to the motion in arrest o f

judgment, adhered to the opinion h e

had be fore given, “that the informations were well “exhibited b

the solicitor-general.” As to the motion for a new trial on account

o f

the amendment, h e

declared his satisfaction

a t

the motion's having been made, and the matter so fully discussed and understood. Matters o

practice, h e observed, are not to

be known from books. What passes a t

judge’s chambers ismatter o f

tradition: it rests

in memory. In cases o f

this kind, judges must inquire o

their officers. This is done in

court, every day, when the practice is dis puted o

doubted. It is in its nature official. The officers are better acquainted with it

than the judges. For his own part, neither his education, nor his walk in life before h

came

into this court,ever led him into any knowledge

o f

the practice o f

orders made b y

judges in # .

vacation. Themaking this order for the amend ment appeared tohim to b

e right, and to b e a

matter of course. It came tohim as a matter

o f course, and recommended as such from a

gentleman o f great experience, who (he knew)

would a s

soon have cut off his right hand, a s

have deceived him b y

representing this a s a

thing o f

course, when it was not so. Accord ingly, he issued a summons, “to shew cause ‘why the amendment should not bemade." A

summons always issues, before a judge makes

* For the effect o f

reversal o f outlawry and

for the distinction between a n outlawry a t

the suit o

f a subject, and one in the case o f

the crown, see the Case o f

St. John's College v.

Murcott, 7 Term Rep. 259. That the greatest strictness is required in proceedings o f

out lawry, see in Rex v . Almon, Pasch. 3 3

G . 3 ,

5 Term Rep. 202, and Gilb. Hist, o f C . B .

therein cited.

a n

order. A summons therefore, went out, o f

course. Upon the attendance, hi s

lordship asked Mr. Hughes (an old and experienced officer), the defendant's clerk in court, “whe ‘ther there was any doubt but that this was ‘amendable.” He, very rightly, and aswas his duty, admitted, “that it was amendable, ‘and that he could not say otherwise.” His lordship then took down a book in which were...?some cases where informations were amended b

y a judge's order, just before trial;

and after reading one o r two,Mr. Philips, the

defendant's attorney, desired him not to give himself any further trouble. Mr. Philips said indeed, “that he could not consent to it.” But

h e

did not object to it ,

nor contradict it ;

nor was it objected to, a

the trial. The counsel saw that there could be n

o objection made to

the order.

Mr. Justice Blackstone, in his third volume,” gives the rise and history o

amendments, very shortly and in few words. He shews how

it stood, before the reign o f

Edward 1 , inwhose

time, (probably about his 13th year) Britton's treatise was published, in the king's name and

b y

the king's authority: which seems intended

to give a check to the unwarrantable practices

o f

some judges who had made false entries o n

the rolls, to cover their ownmisbehaviour. And about the 18th year o

his reign, almost a ll

the judges, even the most able and upright,

were prosecuted b y

him; and some o f

them very heavily fined; and one o

the causes as signed for it

was erasing and altering records: particularly, si

Ralph Hengham was fined 800 marks a

t least, (some say 7,000) for alter ing, out o

mere compassion, a fine set upon a

very poor man, from 13s. 4d. to 6s. 8d. Upon this, the judges grew so strict, that after inrollment they would not amend their judg ments, even to set them right. They were so alarmed b y

this severity, that through a fear

o f

being said to d o wrong, they hesitated a t doing that which was right; and because cri minal and clandestine alterations, to make a

record speak a falsity, were forbidden, they conceived that they might not judicially and publicly amend it

to make it agreeable to

truth. But declarations and pleas might al ways b

amended a t any time: itwas only in

rollments that were prohibited by Britton. There never wasany distinction (as toamend ments a

the common law) between criminal and civil causes; that is

before the 8 H. 6 , c .

12, o f

Jeofails. The judges adhered to such strictness, that justice was entangled in the net

o f

form. The legislature was therefore forced

to interpose; and n o

less than twelve statutes

o f

amendment were made, to remedy these op probrious niceties. The fundamental question here is

“whether “an information may b

e amended, a t

common ‘law, a

the desire o f

the crown, after plea “pleaded.”

Numberless precedents are produced, from

* Book 3 , c . 25, p .

407.

1119] 4–10 GEORGE III. Case of John Wilkes, esq. [1120 the time of queen Elizabeth, and al

through the reigns o

James 1 ,

and Charles 1 ,

and many side-bar rules, which shew that itwas o

course: for, if it were not of course, it would have been moved in court, a

s every thing not of course is. So long ago a

s 6W. 3 ,

lord chief justiceHolt treats it a

s a known thing, a thing o f

course. 1 Salk. 47, the King against Harris. Amo

tion was made, to amend an information for perjury; and opposed, because the defendant Thad pleaded. E

t per Holt chief justice a s

to amendment after plea pleaded, there is n o

great matter in that. After a record has been sealed up, l have known it amended, even just

a s it was going to b e

tried.” In 12W. 3," sir Bartholomew Shower moved to amend an in formation o

f forgery, in ten places: and, though opposed, the motion was granted, be cause itmade n

alteration o f

the fact; and that, without costs o

r imparlance. In the case

o f

the King against Charlesworth, 2 Stra. 871, the information was for forging a warrant o

attorney to acknowledge satisfaction upon a judgment o

Easter term ; and, after issue joined, the record appearing to b

o f Hilary

term, the information was amended, without costs (the prosecutor having been admitted a

pauper,) and without giving the defendant leave to plead d

novo. And Hil. 10 Anne, the Queen against Simmonds was there cited :

where the title of an act set forth in an infor mation was amended. And there is no autho rity to the contrary. There can b

n o

doubt therefore o

it s being amendable; upon the

authority o f a series o f

precedents, without any objection, and a

these printed cases un contradicted.

And why should it not b e

amended ? If it

had not been amended, the attorney-general would have dropped this information, if he

thought there was a slip in it; and have brought another. And this would have been more inconvenient to the defendant, and have harrassed him more : h

would have n o benefit,

and "more vexation. This amendment avoids delays, and saves expences: it saves the de fendant the expence o

f bringing his witnesses up again. The attorney-general pays no costs. The defendant never asked leave to plead again,

o r to have the trial put off: nor was there any

cause for it .

The defence was not atall varied. The substance o

the charge was not a t

a llal

tered: it remained the very same. The true merits o

the cause stood the very same. There

is n o

difference a t all, but that the prosecutor

must prove more. The nature o f

the paper

was the same: every objection was equally open to the defendant, and h

had the further advantage o f

any verbal slip in setting out the libel upon the record. But it is objected, “ that it could not b e

done out of court.” - Answer. . Itmight be done b

the Court: it

might b e

done a t

the side-bar. And a great

* 1 Salk, 50, anon.

deal that may b e

done in court, is done b y

judges a t chambers, in term-time: in vacation,

a great deal more is done b y

them a t cham

bers; because it can b e

done no where cise. Most o

the precedents o f

amendments before trial are in the vacation. Lord chief justice Lee amended a record o

a n information, sent

u p

from York; the mistake being there disco vered during the assizes: and the record so

amended was returned, and immediately tried.

I am obliged to a gentleman at the bar, who sent me a case o

the King against King, 19th of March 1746, where Mr. Justice Foster or dered the word ‘division' to b

struck out, and “parish’ to b

inserted ; though it was strenu ously opposed, and the defendant must have been acquitted, if it had stood unamended. Mr. Justice Foster had applied himself particularly

to the crown law; was a strict adherer to legal forms ; and had more experience in business proper to b

done out o f court, than any other

judge.

“Whether it was a necessary amendment,

o r not,” I give no opinion, nor form any.

There is a great difference between amend ing indictments, and amending informations. Indictments are found upon the oaths o

f a jury;

and ought only to b e

amended b y

themselves: but informations are as declarations in the king's suit. An officer o

the crown has the right o

f framing them originally ; and may, with leave, amend, in like manner a

s any plain tiff may do. If the amendment can give occa sion to a new defence, the defendant has leave

to change his plea: if it can make no alteration

a s

to the defence, he don’t want it .

In this case, the defendant could not possibly plead

*} other plea. -

am fully satisfied, that none o f

the defen dant's counsel o r agents ever thought there

was the least colour o f objection to the order for amendment: but, long after the trial, it

occurred to others, that b y

calling it “an alte ration of the record,” instead o

“an order to

amend the information,” they who derive a ll

their knowledge and law from libels in the news-papers, might b

bewildered and misled.

Mr. Justice Yates took notice of a difference which there seemed to him to be, between the attorney-general and the master o

the Crown office : the attorney-general is the officer o

the king; the master o f

the Crown-office, the officer o

the public. Informations exhibited

b y

the king's attorney-general are considered

a s

the king's own prosecutions, and are called

* declarations for the king :’ therefore n o

costs

are paid upon them. In the other informa tions, costs are often payable. - He said, he was greatly confirmed in hi

opinion, upon the case now before the Court, and had the greater reason to think it a right one, a

his brother Glynn had not, b y

a ll

h is

arguments, been able to shake it .

He agreed that the statute power o f

amend ing does not extend to criminal proceedings: but in common law amendments, there is u

1121] A. D. 1763–1770. [1122on two Informations for Libels. difference between criminal and civil proceed ings. And he cited, and repeated (in part) the case of the Queen against Tutchin, in 6 Miod. 268 to 287." He cited also, to the same pur port, the case of Bondfield qui tam, &c. v.Alil ner, in this court, MI. 1 G. 3. The question therefore turns upon what is a common-law amendment. Many cases have been cited, ofcommon-law amendments. But there is one, which has not been mentioned : it is the King against Goffe, in 1 Lev. 189. It was moved to amend an information of perjury. And it was ruled, that they should give notice of the things to be amended, to the defendant; and he to shew cause why it should not be amended: for, the Court said, “it might be amended.” The case of the King against Charlesworth was a very strong one: for, the defendant must have been acquitted; and yet that amendment was made without payment of costs, and without liberty to plead de novo. Indictments, being upon oath, cannot be amended." But informations may beamended; because they are declarations for the king, 2 Winer 394, title Amendment and Jeofails, pl. 12. 12 Mod. 229. The King against Lewis, 6 Mod. 281. 1 Stra. 185, itex v. Nixon.

It is clear, therefore, that informations may be amended, at common-law. As to their being amended by a judge at chambers—it is

most certainly, the practice.

. Non constat “when it begun :’ but it seems to

have been exercised time out o f mind; and

that the business of the Court could not be done without it

. The business done at chambers is

the most irksome part o f

the office o f a judge:

but it is greatly for the benefit o f

the subject,

and tends to the advancement and expedition o f

justice. It arises from the overflowing of the business o

the Court ; which cannot be all transacted in court. The order o

f a judge is

subject to a n appeal to the Court: but if ac

quiesced under, it is a s

valid a s any act o f

the Court. It is common, to apply to the Court,

* to discharge a judge's order:' but the very

course o f applying to the Court, “to discharge

the order o f a jºid-ſe, made a t chambers,’ sup

ports the proceeding; and shews that the order

is valid as to its effect, if it be not discharged. Indeed, if it becomes necessary to inforce it b

attachment, there must b e a motion “to make

it a rule o f

Court.” The validity o f a judge’s

order can be impeached only two ways: either by appealing to the Court, to se

t it aside; o r, if

made in vacation, b y

applying in the next term, to set aside the proceedings that have been had under it

. Now, this order was made

* Wide 6Mod. 274, 282, 283. See it in this Collection, vol. 14, p .

1095.

+ Contr. Vin. Amendment, (T. a. )

1 . 3 ,

which is not law, though small mistakes in the entries o f

proceedings o n

indictments are amendable, Com. Dig. title Amendment, 2

Car. 1.

WOL, XIX.

in vacation. The defendant might have de clined going to trial, and might have moved,

in the next term, to set aside the verdict.” But h

e acquiesced, and went to trial. The materiality o

this amendment is not in

any degree equal to many o f

those that were made in the cases that have been cited. The defence was, indeed, made easier thereby : for,

the word ' tenor imports a literal copy.” It

could not vary the nature o f

the defence: the proof lay upon the crown. If the defendant had had any objection to the alteration, h

should have made n o

defence a t

the tria!: that would have been a consistent conduct. But

a s

h e

did make a defence, h e

has acquiesced in

it .

And yet, if he had made no defence at the trial, the verdict nevertheless would have stood: for, it could not have been set aside, unless the order was a bad one ; which it now clearly ap pears, “that it was not.’ Therefore it ought to

b e supported b y

the Court. -

This is a motion for a new trial, after a series

o fproceedings upon it . The Court have indeed

spontaneously relaxed their own rule, in order to give a n opportunity o f having this matter

fully and fairly argued and considered : which

I am glad of; but I hope, it will not be made

a precedent.

Mr. Justice Aston.—I entirely concur with my lord and my brother Yates, in discharging these rules. I think, the importance of this case does not consist in the nature o

f it; but in

the noise and clamour that it has occasioned,

and the misrepresentations that have been thrown out to the public, o

f the conduct o

the judges in the course o

the proceedings in it; who have been very unjustly charged with being induced to it b

partial motives.

In the case o f

the Queen and Norton, reported

in lord Fortescue's Reports 232, the Court agreed that it is a general rule, “to amend in formations a t any time, even just before trial:” but then it must not make the information dif ferent. And, to b

e sure, it ought not : for, it

would make a different defence. In the case

o f

Rush and Seymour, 1 0

Mod. 88, it is said,

‘ that statutes o f

amendument extend only to

pleadings o f

record ; and that pleadings, while

in paper, are amendable b y

common-law ; and that it is a motion that the Court cannot re fuse: but they may refuse it

, if the party de

desired should amount to a new plea.’ And a s

to the practice, itwas almost o f course, where

the amendment that!e no alteration in the de fence. Where it altered the defence, then it

was upon terms. There is nothing that i ever looked upon a

so plain. Then a

to doing it a t

chambers—the prac tice o

the Court has been always so. The business dohe a

chambers is become an im mense load upon the judges, and is exceedingly troublesome to them : but it is the practice, the custom o

the Court; and therefore, the law o f

* See Salk. 661.

4 C

siring it refuse to pay costs, o r

the amendment.

1123) 4–10GEORGE III. Case of John Wilkes, esq. [1124 the land. And what has been done by the judge at chambers, in the present case, has been rightly done: if it had not, I should have had no scruple in overturning it

But here is

not the least colour for that: the order is justi fied b

y a vast number o f precedents. I am

glad, that it has been thus fully discussed; to

convince the great number o f persons that I

see attending here, that judges have acted in

this case, a s they d o

in a ll others; and that

there is n o

sort o fground for the scandalous in

timations that have been industriously propa gated, o

their having been influenced b y

partial o r improper motives.

Mr. Justice Willes concurred in both points. He declared himself to be clearly o

opinion,

that during the vacancy o f

the office o f

the king's attorney-general (which was the present case), the power o

the attorney-general de volves upon the solicitor-general for the time being. Consequently, this information was regularly and properly exhibited. As to the order for the amendment of the in formation—he held it to be justified b

a nun

interrupted series o fprecedents, from the time

o f

W. 3 ,

a t

least. And a s

the order was right,

h e

saw n o ground for the obloquy that had been

thrown upon the noble person who made it .

itmakes no alteration in the charge: itmakes no alteration in the defence. No objection was made to it: no advantage was taken

o f it . It was acquiesced in ; and the cause

went o n

to trial. It is authorized b y

several cases, and b

y a great number o fprecedents for

many years backward. He grounded his opi uion, h

e said, upon the chain and series o fpre

cedents for near a century past.*

He concurred therefore with his lordship and this brothers, that both rules b

e discharged.

The Court unanimously ordered both these Rules to b

e discharged. Serjeant Glynn thereupon moved, That the present proceedings might be entered upon re cord, that the defendant might have opportu nity o

fapplying to another jurisdiction. The Court told him, they could not g

out

o f

the usual and ordinary method and course o f

* See in this Collection, vol. 7 ,

pp. 1365 e t

afq, a curious instance o f

an alteration in a n

information after plea pleaded, and apparently without any judicial order.

In Steel v. Sowerby, 6 Term Rep. 171, lord Kenyon said, “That the Court has the power

to amend a s long a s

the proceedings are in|. in criminal as well as civil proceedings,as not been doubted since the case of R. v.

Wilkes. That was not the first time in which

such a n

amendment was made; and though

that proceeding was considered b y

some per sons a

influenced b y

improper motives, I have great reason to believe that those, who objected

to the amendment, thought in their privater”s, that there was no pretence for the ob &ction,”

proceeding : every thingmust b e

done in this case, in the same manner a

in all other pro ceedings o

the like kind. Mr. Attorney-General then moved for lord Mansfield's Report o

the evidence (the causes having been tried before his lordship, a

Nisi Prius). Whereupon, after the records o

the con victions had been read, lord Mlansfield reported the evidence in each cause.

The Attorney-General and the Serjeantmade their respective observations upon the evidence reported.

Mr. Wilkes then applied for the sentence of

the Court.

The Court told him, itwas necessary to take some time to consider of it: the constant course

is so. They promised to d o it without delay;

and to give Mr. Wilkes notice, when they were ready : but, a

t present, they had not had the least conference together about the punish ment; nor could they, without great impro priety, have had any, before they had heard a

the arguments. Serjeant Glynn then hinted a

his client's being bailed in the mean time. But the Court told him, h

knew that could not be.

The defendant was remanded to the custody of the Marshal.

Friday, June 17, 1768.

The Court declared their intention o fgiving

finaljudgment to-morrow ; and ordered that the defendant should b

e brought u p

accordingly.

Saturday, June 18.

Mr. Justice Yates (as second judge) pro nounced the sentence of the Court in each cause; viz.

‘On the Information for the North Briton, ‘N’ 45, a fine of 500l. and imprisonment fo

r “ten calendar months, and till the fine b

paid:

‘on the other Information, 500l. fine; and im “prisonment for twelve calendar months after ‘the expiration o

the former ten; and to find “security for his good behaviour for seven ‘years, himself in 1,000l. and two sureties in

‘500l. each; and to be remanded, till the fine “should b

e paid and such security given.’

Mr.Wilkes desired, that his former impri sonment might be considered in the punish ment now inflicted upon him. The Court assured him “that it had been so;

and that they had fully cousidered a ll

circum stances, both for him and against him.” Serjeant Glynn then desired, thatMr.Wilkes might have the benefit o

f a Writ o f

Error to

the House of Lords. Lord Mansfield answered, that this Court could not give any particular directions about that matter: h

must apply to the Attorney

General. And h e added, that ifMr. Attorney

General would take his adviee, h e

should grant

it the moment itwas applied for.

1125] A. D. 1763–1770. [1126on two Informations for Libels. Mr. Attorney-General said, he certainly should grant it immediately. Mr. Wilkes then desired, that it might be put into such a method, as that he might have the advantage of objecting, in the House of Lords, to the alterations made in the record by lord Mansfield at his lordship's own house. Lord Mansfield told him, that the Court could not alter the law.

Mr. Wilkes replied, that he did not wish the law to be altered. LordMansfield.—It is impossible to alter it in any particular case: the same course must be taken in this case as is usual in others of the like kind. The defendant's counsel would

advise him, his lordship said, what were the proper steps for him to take, in order to have the opinion of the Houseof Lords. The defendant was remanded.

The Rules were drawn up in these words: “Saturday next after fifteen days from the day of the Holy Trinity, in the eighth year of king George the third.” [18th June, 1768.]

Middlesex, “The defendant being brought ...:"she here into court in custody of the wilkes, Esq. Marshal of the Marshalsea of this Court, by virtue of a rule of this Court, and being convicted of , certain trespasses contempts and grand misdemeanors, in print ing and pnblishing a seditious and scanda lous libel, intitled “The North Briton, N° 45, whereof he is impeached, it is ordered that he the said defendant, for his offences aforesaid, do pay a fine to our sovereign lord the king, of five hundred pounds of lawful money of Great Britain : , and it is further or dered, that he the said defendant be imprisoned in the custody of the said marshal for the space of ten calendar months now next ensuing. And it is lastly ordered, that the said defendant be now remanded to the custody of the said mar shal, to be by him kept in safe custody, in exe cution of the judgment aforesaid, and until he shall have paid the said fine.—On the mo tion of Mr. Attorney-General.—By the Court.

“The defendant being brought here into court, in custody of the Marshal of the Marshalsea of this

Court, by virtue of a rule of this Court; and being convicted of certain trespasses contempts

and grand misdemeanours, in printing and pub lishing an obscene and impious libel, intitled * An Essay on Woman,” and other impious libels in the information in that behalf speci fied, whereof he is impeached; and having also been convicted of certain other trespasses contempts and misdemeanours, for printing and publishing a certain other libel, intitled “The North Briton, N° 45,’ for which he hath this day been sentenced, and ordered by this Court to pay a fine of five hundred pounds, and to be imprisoned in the custody of the said marshal for the space of ten calendar months;

it is now ordered by this Court, that the said

The same againstthe Saint.

defendant, for his trespasses contempts and misdemeanours first abovementioned, in print ing and publishing the said obscene and impious libels, do pay a further fine to our sovereign

lord the king, of five hundred pounds of law ful money of Great Britain; and that the said defendant be further imprisoned in the custody of the said marshal, for the space of twelve calendar months, to be computed from and after the determination of his aforesaid im prisonment for printing and publishing the said other libel intitled “The North Briton, N° 45.” And it is further ordered, that he the said de-,

fendant shall give security for his good be-, haviour, for the space of seven years, to be computed from and after the end and expira tion of the said twelve calendar months to be computed as aforesaid; to wit, himself, the said defendant, in the sum of one thousand|. with two sufficient sureties, in fivenndred pounds each. And it is lastly ordered, that he the said defendant be now remanded to

the custody of the said marshal, to be by him kept in safe custody, in execution of this judg ment, and until he shall have paid the said fine and given such security as aforesaid.—On the

motion of Mr. Attorney-General.—By the Court.”

Afterwards awrit of error” was brought, re

* As to the right to a writ of error in crimi nal cases, see in this Collection the Case of Nairne and Ogilvie, A. d. 1765: and those of

si r

Thomas Armstrong, and Ashby andWhite,

a s

there referred to: see also more particular

ly Mr. Hargrave's Collection on the subject, (Juridical Argumentsand Collections, vol. 1

, p .

403,) wherein that most learned lawyer de duces from a review of the cases and authori ties o

the question, whether awrit o f

error in criminal cases is a writ o f right o r

o f favor,

these conclusions, viz.

1 . “That long previously to the reign of

queen Anne, there were opinions in favor o f

con sidering writs o

f error, even in treason and felony, a

writs o f right; particularly the

opinion o f

lord chief justice Wray, in the King's-bench in the reign o

queen Elizabeth,

a n approbation o f

that opinion b y

lord Coke, with a resolution o

the House of Commons in

1689, declaratory o f

their sense o f

the law ac cordingly.

2 . “That, consequently the idea of itspre

viously being a perfect uovelty, to consider writs o

error in any criminal case a s

writs o f

right, seems to b e a mistake founded o n

not having sufficiently attended to the history o

the subject.

3 . “That, in the reign o fqueen Anne, there

is a resolution o f

ten judges out o f

twelve de livered in parliament, declaratory o

the abso lute right to a writ o

error in a ll

criminal cases, except treason and felony.

4 . “That in the same reign, there is a reso

fution o f

the Lords after hearing the judges,

declaring the absolute right o f

the subject to

11271 4–10 GEORGE III. Case ofJohn Wilkes, esq. [112S turnable in parliament, upon each judgment: and both judgments were affirmed, as follows

Die Luna, 16° Januarii, 1769.

Counsel having been fully heard to argue the errors assigned in these causes, the following Questions were put to the Judges— “Whether an information filed by the king's ‘solicitor-general, during the vacancy of the * office of the king's attorney-general, is good * in law º'

•Whether, in such a case, it is necessary in * point of law, to aver upon the record, that the “attorney-general's office was vacant :"

Upon the second record—

“Whether a judgment of imprisonment * against a defendant, to commence from and * after the determination of an imprisonment “to which he was before sentenced for another

* offence, is good in law " Whereupon the lord chiefjustice of the court of Common Pleas, (sir John Eardley Wilmot) having conferred with the rest of the judges present, delivered their unanimous Opinion impon the said Questions, with their Reasons as follows:

As to the first Question:

- º e think this information, so filed, is good

in aW.

a writ of error in a ll

criminal cases, without so

m::ch a s

one exception.

5 . “That, since the reign of queen Anne,

the right o f

the subject to a writ o f error, in

Criminal cases under treason and felony, has been recognized in Westminster-hall b

some judges, without contradiction from the rest.

6 . “That lord Mansfield qualifies the right to

awrit o f a error in misdemeanors, b y

explaining

the writ to b e

not absolutely o f course, but only

claimable a s a right o n probable error shewn.

7 . “That whether lord Mansfield's qualifi

cation o f

the right to a writ o f

error inmisde meanors is adopted b

other judges, o r is his

lordship's particular opinion, is not discoverable

a t present.”

It is to be hoped that ere long the worldwill

b e

favored with amore copious investigation o f

the subject in Mr. Hargrave's “Jurisconsult Exercitation,” a

s I shall have occasion tomen tion in a note to the case o

Nairne and Ogilvie. Note. In a letter from sir Constantine Phipps, (see concerning him, vol. 15, p

222)

to Dean Swift, dated January 14, 1720-21, the writer says, “The last term I spoke to Mr. Attorney General, [sir Robert Raymond, after wards lord chief justice] about it,” [the case

o fWaters, the dean's printer, who it appears had been convicted upon a prosecution, forpub lishing the ‘ Proposal for the universal Use

o f

Irish Manufactures'] “but he told me he

could not grant a writ o f

error in a criminal case without direction from the king.”. See

i."Works, vol. 10, p. 433, 12mo edition of

By our constitution, the king is entrusted with the prosecution o

a ll

crimes which dis turb the peace and order o

f society. He sus tains the person o

the whole community, for the resenting and punishing o

a ll

offences which affect the community; and for that rea son, a

ll proceedings ‘ad vindictam et Poe

• nam’ are called in the law, the pleas o r suits

o f

the crown; and in capital crimes, these suits

o f

the crown must b e

founded upon the accusa tion o

f a grand jury ; but in a ll

inferior crimes,

a n

information b y

the king, o r

the crown, di rected b

the King's-bench, is equivalent to

the accusation o f a grand jury, and the pro

ceedings upon it are a s legally founded; this

is solemnly settled and admitted. As indict ments and informations, granted b

the King's- bench, are the king's suits, and under his con troul; informations, filed b

his attorney-gene

ra l

are most emphatically his suits, because they are the immediate emanations o

his will

and pleasure. They are n o

more the suits o f

the attorney general than indictments are the suits o

the grand jury. -

Indictments and informations are both the voices o

those entrusted b y

the constitution to

awaken criminal jurisdiction, and to pnt it into motion. Who are those persons entrusted 2

A grand jury fo r

a ll crimes; the King's-bench,

a s

well a s

a grand jury, fo r

misdemeanors o f

magnitude.

An information, brought b y

the attorney

general fo r a misdemeanor, is a s

tºuch the suit

o f

the king, a s actions, brought b y

attornies, are the actions o

their clients, and not

o f

the attornies who bring them.

• The king sues b y

his attorney,” o r

‘the “attorney sues fo

the king,’ are only different forms o f expressing the same thing. . It is

equally good either way, a s appears b y

the cases in 2 Lev. 82, and 3 Keb. 127; and n o

legal reason, but good manners and decency,

a s

lord Hale calls it ,

have given the preference

o f

one form to another. It is the king, who,

b y

his attorney, gives the Court to understand and b

informed o f

the fact complained of. Before the statute, 4 and 5W. and M. c. 18, every private man might lay his complaint before the court a

the king's complainant; this was abused, and was checked b

the statute;

but it left a ll

other informations a s they were.

What were then the king's informations? His right, o

f ‘informing' the Court, was not sub jected to the check which the act set upon the right o

individuals. The legislature trusted the king a

the great constitutional guardian o

the peace o f

the so ciety. The mere suggestion o

a n

individual was too slight; he was under no oath. The king is under the most solemn sanction in

every part o f

h is great office; and it is wise

not to controul it :

h e is not to b e put o n a level

with the meanest o f

his subjects: The arguing that the attorney general only, and n

other officer, was entrusted b y

the con stitution to sue for the king, either civilly o

criminally, is a fundamental mistake. The

1129] A. D. 1763–1770. [1130on two Informations for Libels. attorney general is entrusted by the king, and not by the constitution; it is the king who is entrusted by the constitution. The great abilities of the persons appointed to this office have made it figure high in the imagination, and annexed ideas to it which do not belong to it; for he is but an attorney, though to the king, and in no other or different relation to him than every other attorney is to his employer; and it is by degrees that he hath attained to that rank which he now holds in the law.

I find no traces of such an officer for cen turies after the conquest; and that great anti quarian, Spelman, under the word “Serviens “ad Legen,’ considers him, upon the authori ty of passages cited out of Bracton, as the great officer for pleas of the crown, and thinks the king had a serjeant in every county for that purpose; and in the proclamations made even at this day, before any criminal trial begins, the king’s serjeant ismentioned, even before the attorney; and the 5th Edward 3, c. 13, which gives an averment against the sheriff’s return of imprisonment in cases of outlawry at the king's suit, mentions the king's serjeant before the attorney, and subjoins or any that *will sue for the king;' which is a strong in dication that the king's suits were not con sidered as then appropriated to his attorney; and he had not then so much as the name of “attorney general,’ which means no more than the person generally employed to sue and de fend for the king, exactly in the same manner as the person generally employed by your lordships, in your suits, is called your. ships' attorney, without putting the addition of ‘general' to it; and the suits instituted by the king's attorney, or by your lordships' at torney, are both instituted, either by special and particular directions, or under a general authority, which is equivalent to a particular direction for every particular suit: and a suit instituted by the attorney-general, is entitled the King and , and the jury are sworn between the King and —, in the same manner as in suits between private individuals. Whether the king, when there isan attorney or solicitor-general, might, by one of his serjeants, or by his solicitor, when there is an attorney, now file either a civil or criminal information,

it is not necessary to determine; but the pas sage, cited out of the Harleian manuscript, does not decide in the negative; for the first

{. in Henry the eighth's time, orders theing's solicitor to stop one prosecution and commence another. The office of attorney general was either vacant or full at that time. If vacant, it proves the solicitor stands in his place: if full, it proves that by particular order, the king's suit is not inseparably at tached to the office of the king's attorney. The latter part of the passage, containing the resolution of the 1st and 2d James 1, is only the adjustment of a dispute between the attorney general and the king's serjeant, whe ther the king's serjeant could institute a suit so

as to privilege it with respect to fees, &c. in the ordinary course of proceeding; and it was determined to belong to the attorney general,

in opposition to the serjeant's claim : but it does not follow from thence, that the king, if he had pleased, might not have empowered one of his own serjeants to have commenced

it :

and a special antecedent direction could not

b e necesssary; for if the king afterwards

avows the suit, and pursues it , it is aprinciple

and maxim that “omnis rati-habitio mandato aequiparatur;' but there is n

occasion in this case to have any recourse to such a ratifica tion ; for the solicitor general is the “secun darius attornatus;” and a

the courts take no tice judicially o

the attorney general, when there is one, they take notice o

the solicitor general, a

s standing in his place, when there is

none. He is a known and sworn officer of thre crown, a

much a s

the attorney; and, in

the vacancy o f

that office, does every act, and executes every branch o

it . But, whether it

b e

the one o r

the other, they only echo the king's complaint, and his application to the court to act upon it

When the attorney dies

o r

is removed, must the great criminal juris diction o

f this kingdom, in his department, b

suspended, ti ll

another is appºinted . It is said the king may appoint one. But it is amatter

o fgreat deliberation and infinite consequence to

have a person possessed o f

a ll

the qualities ne cessary fo

that office. Where is it to be found, that, in that interval, the noblest branch o

the king's regal office becomes inactive, and the subject's right to protection is in abeyance 2

There is n o

such absurdity to b e

found in the law; and an hiatus in government is so de tested and abhorred, that the law says, “the king never dies,’ that there may never b

e a

“cesser' o f regal functions for a moment;

but if this whimsical conceit were to take place, the death, o r

removal o f

the attorney general, would suspend one o f

those functions, though there was n

demise a t

all. That the office o

f attorney general devolves upon the solicitor, is proved b

such a chain o f

authori ties, a

can leave n o

doubt in any man's mind upon this question. - -- -

A course o f precedents, and judicial pro

ceedings in courts o f justice, make the law:

it would b e

endless to cite cases upon it .

A course o f practice for a few years has

been held to controul a n

act o f

parliament.

The case o f Bewdley corporation, in the

12th queen Anne, 1 P . Williams, 207. , Be

fore the 4th and 5th o f queen Anne, juries

were to come out of the hundred of that place where the action arose. This was at tended with manv inconveniences. That law

directed that the jury should come out o f

the body o

the county; but a practice had pre waiſed in the Crown-office, to award the

* Venire de Vicineto,” asbefore the act. Itwas referred to a

the judges. Their unanimous opinion was delivered b

Parker, chief jus tice. The constant practice and precedents both

in the Crown-office and Exchequer, being

3 .

1131] 4–10 GEORGE III. Case of John Wilkes, esq. [1132 ‘de Vicineto;' they established the practice, and said, ‘ to make a contrary resolution in “ this Case, would be, in some measure, to over ‘ turn the justice of the nation for several years * past.” There was an interval of five or six years in that case—but here there is near a century. The King and the earl of Devon, Easter, 3 Ja. 2.* Though the information was filed by the attorney general, itwas taken up by the solicitor general, and shews the same powers. Proceedings were brought up into this court, to found a complaint upon ; but there was no writ of error. The judgment was never re versed. There was not the least complaint.

This House acted upon it .

This is a recogni tion o

his authority. [Here the Chief Justice stated many cases in

the Exchequer, Chancery, and King’s-bench ;

and particularly, the Queen and Lawson, Easter, 7th o

queen Anne, which was a n in

formation exhibited in the Exchequer b y

sir James Montague, “ solicitor general,” and where the judgment was affirmed b

lord Cowper, Holt and Treby.] The attorney general is n

more a sworn officer o

the King's-bench than the solicitor general.

As to the 2d Question: The inserting the vacancy o

the office o f

attorney general in the record sometimes, and

a t

other times omitting it ,

shews it was thought

a matter of indifference. There are more cri minal informations in the Exchequer, without those words than with them. At most it could

b eonly a n irregularity, which would not make

the information void; because it is the king's suit, and the Court iswell founded in opening their jurisdiction upon it ; a

ll irregularities must be challenged in time, and if not chal lenged, are waived; and the pleading and going to trial are clearly a waiver, if there had been any weight a

a ll

in this objection ; but we think there is none. In this case, the in

* Middlesex—Information filed b y

si r

Ro bert Sawyer, “attorney general,' against Wil liam earl of Devon, states, that he on the 24th April, 3 J. 2

, v i e t armis, a t

the city o f

West minster, in Miiddlesex, within the palace o

our lord the king there, to wit, in Whitehall, (the king being then abiding in the said palace) one Thomas Colepepper, esq., then and there in the peace o

f God, and our said lord the king, did provoke and challenge to fight with him the said William earl o

Devon, with intention to

kill and murder him the said Thomas, &c. Plea.—And now (that is to say) o n Friday,

next after the morrow of the Ascension of our Lord, in this same term, before our lord the king a tWestminster, comes a s

well si r

Thomas Powis, knight, ‘solicitor general’ o f

the said king, who, for our said lord the king, low pro secutes in his proper person, a

the said Wil liam earl o

f Devon, in his proper person; and the said earl says, &c.

formation, though filed b y

the solicitor, is

brought into court b y

the attorney, whe was the same person who filed it

. By so doing, he

has adopted it; and it is become his infor mation to every intent and purpose whatso ever.

When filed—process—when brought into Court—read over and charged with it

. It is

now done by the officer—but it is for the at torney. If there was any foundation—it should have been objected to then. If not, it

must be considered as waived.

On the 3dQuestion: We are o

f opinion that the defendant, being convicted o

two offences, it was necessary that two judgments should b

epronounced, one upon each information.

Fine and imprisonment, o r

other corporalpu nishment, may b

awarded for such offences as are contained in these informations.

The kind, and the quantity, are left b y

the law to the discretion o

the Court, which passes the sentence; and that discretion is re gulated b

the nature o f

the offence, and the circumstances which aggravate and exte nuate it; b

the state and condition o f

the de linquent, and the imprisonment h

has already suffered: and that discretion is always exer cised with that lenity and compassion which

d o

so eminently distinguish the administration

o f

criminal justice in this kingdom. That sound discretion led the Court to fine and imprisonment, a

s the proper and adequate

punishment for these offences. A very large fine might have amounted to perpetual impri sonment: a very small fine must necessarily have produced a prolongation o

f the imprison

ment. By mixing them together, the keen edge o f

each is taken off, and the consequence

o f a large fine, o r a very long imprisonment, carefully avoided.

A fine o f

500l. and ten months imprison ment, is the punishment for the treasonable libel; a fine o

500l. and twelve months im prisonment, to commence from the determina tion o

the former imprisonment, is the punish ment for the blasphemous libel. The objection

is ,

that the sentence fo r

the blasphemous libel

is erroneous, because the punishment is not to

take place till another punishment is ended, either b

effluxion o f

time o r

other sooner de termination o

f it ;

which may be b y a reversal

o f

that judgment, o r

the king’s pardon; and that a

ll judgments are to take immediate effect,

and not to commence ‘in futuro.” In general, the language o

f a ll judgments for offences, re

spects the time o f giving the judgment; though

the punishment, directed to b e inflicted, is in

n o

case inflicted immediately ; and in many cases, the judgment directs the punishment to

b e ‘in futuro,' and must be so according to

the nature o f

the punishment.

In petit larceny—to be whipt three market days successively—to set a man in the pillory three times, a

t aweek's o r amouth's distance—

to find security for good behaviour from the

1133] A.D. 1763–1770. [1134on'two Informations fo r

Libels.

end o f a certain imprisonment, o r

a n

uncertain one, a

those imprisonments are, where a fine

is to be paid. In treasons and felonies—a certain known judgment, which cannot be departed from, viz. in the present tense o

the subjunctive pas sive: but in misdemeanors, where punishment

is discretionary, the limitation, as to time, seems only to be, that the punishment shall take place before a total dismission o

the party : a punishment shall not hang over a

man's head when h e

has been once discharged; that is properly a punishment “ in futuro.' But whilst he remains under a state o

fpunish ment, whilst h

e is suffering one part o f

hispu nishment, h

is very properly the object o f a

different kind o f

punishment to take place during the continuance o

the former, o r im

mediately after the end o f it .

And every case of this kind must depend upon the peculiar circumstances which attend it

In this case, it must be assumed, that fine and imprisonment were the proper kind of punishment to be inflicted for these of. fences; because the Court intrusted b

the constitution with deciding upon the pu nishment, has said so. The facts and cir cumstances which guided their judgment,

in that respect, are not before your lord 'ships. They hear a report o

the trial, and af. fidavits o

every fact which aggravates o r alle

viates the offence; and therefore your lord ships must now proceed upon a supposition, that fine and imprisonment were the adequate unishments to be inflicted for each offence.

ou will be disposed to say and to think so, be cause they are the mildest and gentlest punish Inents.

The punishment might have been inflicted different ways. 1st, By imprisonment for twelve months; but a

h e

was already sentenced to ten months,

it would have been only an imprisonment for two. 2d, By imprisonment for twenty-twomonths; which would, in effect, have been for twelve. But this would have been most grossly un just, because if the first judgment should be re versed, o

h e

had been pardoned, h e

would have been imprisoned twenty-two months, when the Court only intended a

n imprisonment of twelve. 3d, The Court might have laid a fine o

1,000l. with a short imprisonment for one of. fence; and a small fine, with a

n imprisonment

for twenty-two months for the other. This would have been equally unjust—for the offences are different, and have n

relation

to one another. The prosecutions are distinct, and the records a

s separate from one another

a s if there had been two separate delinquents;

and the offences on each record, must be a s se

parately and distinctly estimated; and though judgment happened to b e passed a t

the same

, time for both offences, yet the rule o f

admea suring must be the same a

s if the judgment had been pronounced a

t different, times

The punishment must be proportioned to the specific offence contained in the record, upon

which the judgment is then to b e pronounced;

and must b e

neither longer nor shorter, wider nor narrower, than that specific offence de serves. The balance is to be held with a

steady even hand; and the crime and the pu nishment are to counterpoise each other; and

a judgment given, o r

to b e given against the

same person for a distinct offence, is not to b e

thrown into either scale, to add a n

atom to

either.

To lay a fine o f 1,000l. for one offence, and

twenty-two months imprisonment for the other, when the Court thought a fine o

500l. and a n

imprisonment o f

ten months, was the proper and adequate punishment for one offence, and

a fine o f

500l. and a n imprisonment o f

twelve months for the other, would have been twisting the two offences and their punishments toge ther, and a departure from l. first principle of

distributive justice, which commands a ll judges

to inflict that punishment, and that punish ment only, which they think commensurate

to the specific crime before them; and it might have been productive o

the same injustice I

have already mentioned, viz. the judgment in

one might b e

reversed o r pardoned; and the

delinquent would then b e subject to a larger

fine o r a longer imprisonment, than the Court

intended to subject him to for one o f

the of. fences only.

We cannot explore any mode o f

sentencing

a man to imprisonment, who is imprisoned al ready, but b

tacking one imprisonment to the other, a

s is done in the present case.

It is not letting the judgment for the first of. fence vary the punishment, o

influence the quantum o

f it in the other; but only provid

ing, from the situation o f

the delinquent, toef fectuate the punishment the Court thought his crime deserved. It is shaping the judgment

to the peculiar circumstances o f

the case; and the necessity o f postponing the commence ment o

the imprisonment, under the second judgment, arises from the party's own guilt, which had subjected him to a present imprison ment; and therefore the question really is

Whether a man under a sentence o f impri

sonment for one offence, can b e

sentenced to

b e imprisoned again for another offence? If

h e can, this is the only form b y

which it can b e

done consistent with justice. If it cannot be

done, then in a ll

offences wheh are punish able only b

fine and imprisonment, if a man has committed twenty, and has been sentenced

to imprisonment for one o f them, h e

must b e

fined for a ll

the rest, which will amount to per petual imprisonment with nine parts in ten o

the people most likely to commit such offences:

o r

a n imprisonment must b e

directed for every offence after the first, inadequate and dispro portionate to it

For suppose twenty offences o f

the same malignity, and meriting exactly the same punishments—if sixmonths imprisonment were the punishment directed fo

the first offence;

1135] 4–10 GEORGE III. Case of John Wilkes, esq. [1136 the second must be twelve months: and, pro ceeding progressively, the twentieth must be ten years: and thus six months and ten years will be the punishment for offences which ought to have been punished exactly alike. Or, if it be an offence where whipping or pillory might be inflicted, the alternative of a moderate im prisonment will not be in the power of the Court to inflict; but they will be under the necessity of laying a large fine, or directing one of the other severe corporal punishments. In Dr. Bonham's case, 8 Co. 107. The charter granted by king Henry 8, confirmed by an act of 14 Ilen. 8, c. 5, gives the censors of the Collegeof Physicians a power to punish physicians for a mal and insufficient adminis tration of physic, by atmercement, imprison ment, &c. Dr. Bonham was convened, examined, and found insufficient by the censors. He was amerced 5l. to be paid at their next meeting: and deinceps abstineret, etc. quousque in • ventus fuerit sufficiens sub poena conjiciendi

“in carcerem, si in premissis delinqueret.” He persever, d to practise, and they sum moned him again. He made default. The censors ordered him to be arrested, and after wards he came before them, and being asked to submit to their authority, he refused : and they committed him, and awarded that he should continue in gaol till they released him. It appears from this case, 1st, That he was under no prior sentence of imprisonment, as here. 2dly, That after the judgment of his insuf. ficiency, he was dismissed, with a threat of imprisonment only ; and was afterwards com mitted to prison fo

not submitting to their au thority. Whereas the delinquent here was never dismissed, nor out o

f custody, for amoment. 3dly, it was a special power and authority

o f a very singular and despotic mature, com

mitted to private persons, and therefore to b e

executed strictly: and when they are em powered to imprison, if they find a person in

- sufficient, the punishment must immediately follow the judgment; because, if suspended a

day, it might be suspended a year. If totally dismissed, and the party is a

t liberty, the power over him is determined.

So in the case o f

the 27th o f Henry 7 ,

Y .

B. on the statute o f

Westminster 20, 1 3 Ed

ward 1 ,

c .

11. ; if bailiffs, &c. are found in

arrear, “arrestentur corpora eorum, e t per

testimonium auditorum ejusdem compoti, nit “tantur e

liberentur proximac Goalie Domini

• Regis in partibus illis.” No time was limited ; they must commit immediately.—In that case, it was contended

o n

the plea, that h e

had been a t large; and then their power over him was determined, and

so that what they did after, was tortius. It

was a special power and authority, to be exer cised strictly; and therefore held that the commitment must b

to the next gaol, whether

in the county o r not; and if false imprison

ment was brought against auditors, they must shew that they pursued their power. And the same answer applies to the other cases upon the statutes o

forcible entries.

[He then cited various other precedents, particularly the case o

the King and Dalton,

3 Geo. 1 ,

1716, in which the first judº ment was given in July preceding, upon an indict ment for seditious wºrds against the king : and the punishment was a fine o

f twenty-five marks and commitment for one year, and to find sureties for three years. There was a second conviction, in July, o

f a like offence, and judg

ment o f a fine o f twenty-five marks and com

mitment “pro spacio unius anni integri post

‘ expirationem prior. Judic, imprisonament.

‘ versus eum nuper adjudicatum.”]

In Answer to the Questions therefore pro posed b

your lordships, our unanimousOpinion IS :

1st, That a n

information filed b y

the king's solicitor general, during the vacancy o

the

office o f attorney general, is good in law.

2dly, That in such a case, it is not neces sary, in point o

f law, to aver upon the record that the attorney general's office was vacant. 3dly, That a judgment o

imprisonment against a defendant, to commence from and after the determination o

an imprisonment to

which he was before sentenced for another of. fence, is good in law.”

Whereupon it was ordered and adjudged, That the Judgments o

the Court o f King's-

bench b e

affirmed. F

On Wednesday the 7th o f February, 1770,

Mr. Davenport moved that the defendant might be brought up, either into court within this term, o r

before a judge a t

chambers after the end o f it ,

to enter into the recognizance rº quired o

him b y

the abovementioned rule o f

court: for, his imprisonment will end upon a day which does not fall within any term; namely, upon Easter Tuesday next. The Court told him, they had thought o

this already ; and they conceived the best method would be, to make a rule for his entering into the recognizance before the marshal, o

some

other justice o f

the peace for the county o f

Surrey. And accordingly, they ordered such a rule

to b e

drawn up: which was done, in these words: Ordered, That a

the expiration o f

the im prisonment o

the defendant, b y

virtue o f

the judgment o

this Court pronounced against him

in this cause o n Saturday next after fifteen days

from the day o f

the Holy Trinity in the eighth

* Concerning a judgment o f

imprisonment

to commence upon the determination o f a n in

prisonment awarded for another offence, see the Case o

lord George Gordon, Term Rep.

+ Wide Journals o f

the House o f Lords, vol.

32, p .

242.

1137] A. D. 1771. [1138Case ofBrass Crosby, esq.

year of the reign of his present majesty, the I himself the said defendant in the sum of 1,000l. security required by the said judgment to be with two sufficient surelies in 500l. each, may given by him the said defendant for his good be taken by and before any justice of the peace behaviour fo

the space o f

seven years, towit, I o f

and fo r

the county o f Surrey.

543. The Case o f

BRAss Crosby, esq. Lord-Mayor o f London, o n a

Commitment b y

the House of Commons. Court ofCommon Pleas, Easter Term: 11 GEorge III. A. D. 1771.*

[This Case is from Mr. Serjeant Wilson's Re ports, 3 Wils. 188. The history o

the transactions of which this Case was a

branch, with the proceedings o f

the House

o f Commons, the reader may possess him

self o f,

b y

resorting to the Annual Register

for 1771, and the New Parliamentary His tory for the same year. Upon refusal o

f the Court o

Common Pleas to discharge

the Lord Mayor, the Court o f Exchequer

was moved for a Habeas Corpus; and the Case was argued b

counsel o n a like return

to that Court: but the application there also

failed o f success, and the Lord Mayor was

remanded.]t

The lieutenant of the Tower of London was commanded to have before the justices o

the

bench here, the body o f

Brass Crosby, esq. lord mayor o

f London, b y

him detained in the King's prison, in the Tower o

f London, b y

whatsover name he was called, together with the day, and cause o

his caption and deten tion, o

n Monday next, after three weeks from Easter-day; that the said justices seeing the cause, might d

that which o f right, and ac

cording to the law and custom o f England,

ought to b e done; and further to d o

and re ceive what the same justices here should then consider in that behalf. And now here, a

this day, (to wit) Monday next, April 22, 1771, after three weeks from Easter-day, in this term cometh the said Brass Crosby, in his proper rson, under the custody o

Charles Rains ord, esq. deputy-lieutenant o

the Tower o f

London, brought to the bar here; and the said deputy-lieutenant then here returneth, that be fore the coming o

the said writ, (to wit) o n

the

* See 2 Blackst. 754.

+ See the proceedings against Richard Thompson, clerk, for a high misdemeanor against the privilege o

f parliament, vol. 8 , p .

1 ,

and the matter subjoined to that Case : see

alsoMr.Hargrave's learned opinions concerning the cases of the commitments of the honour able Simon Butler and Mr. Oliver Bond b y

the Irish House o f

Lords in 1793, and o f

Mr. Perry by the British House o f

Lords in 1798, ublished in his Juridical Arguments andCol ections, vol. 1

, p . 1 ,

vol. 2 , p .

183, WOL. XIX.

27th day o f

March last, the said Brass Crosby was conymitted to the Tower o

f London, b y

virtue o f a certain warrant under the hand of

si r

Fletcher Norton, knight, Speaker o f

the House o

f Commons, which follows in these words: “Whereas the House o

Commons

have this day adjudged, that Brass Crosby, esq. lord-mayor o

f London, a member o f

this House, having signed awarrant for the com mitment o

the messenger o f

the House, for having executed the warrant o

the Speaker, issued under the order o

the House, and held the said messenger to bail, is guilty o

breach o f

privilege o f

the House; andwhere

a s

the said House hath this day ordered, that the said Brass Crosby, esq., lord mayor o

fLon don, and a member o

this ilouse, be for his said offence committed to the Tower o

f Lon don: these are therefore to require you to re ceive into your custody the body o

the said Brass Crosby, esq. and him sately keep during the pleasure o

the said House, # :

which this shall b

e your sufficient warrant. Given under my hand, the 25th day o

f March, 1771.” And that this was the cause o

f the caption

and detention o f

the said Brass Crosby, in

the prison aforesaid: the body o f

which said Brass Crosby h e

hath here ready, a s b y

the said writ he was commanded, &c. Where upon, the premises being seen, and fully ex amined and understood b y

the justices here, it

seemeth, to the said justices here, that the aforesaid cause of commitment of the said Brass Crosby, esq. to the king's prison o

the Tower o

London aforesaid, in the return above specified, is good and sufficient in law to de tain the said Brass Crosby, esq. in the prison aforesaid: therefore the said Brass Crosby, esq is b

the Court here remanded to the Tower o

f London, &c. -

The Argument fo r

the discharge o f

thePrisoner.

Serjeants Glynn and Jephson argued, that it

appeared b y

the return o f

this Habeas Corpus, that the cause of commitment of the lord mayor to the Tower of London was insufficient

in law for the detention o f

him there ; and therefore this Court ought to discharge him out

o f

the custody o f

the lieutenant o f

the Tower of London.

Here follows the substance o f

serjeant Glynn's Argument, after the writ and return were filed.

-4 P

1139] 11 GEORGE III. [1140Case ofBrass Crosby, esq. Serj. Glynn. The question now before the Court, is

whether it does not appear b y

the return o

this writ, that the lord-mayor ought

to b e discharged; and it is a very important

and constitutional question indeed. The return states, that the imprisonment o

his lordship is b y

virtue o f a certain warrant

under the hand o f

sir Fletcher Norton, knight, Speaker o

f the House o

f Commons, reciting, that whereas the House had adjudged, that his lordship having signed awarrant for the com mitment o

f a messenger o f

the House, for hav ing executed the warrant o

the Speaker, is :

sued under the order o f

the House; and held thatmessenger to bail, is guilty o

f a breach o f

privilege o f

the House; and º reciting, that the IHouse had ordered, that his lordship, a

member o f

the House, should for his said offence b

committed. So that it appears what that breach o

f privilege is .

When any person is brought to this bar b y

the king's writ o f

Habeas Corpus, the judges must look into, see and consider the cause o

f his detention, and are bound to d

that which

o f right, and according to the law and custom

o f England, ought to be done.

Acts done b y

the highest authority are sub ject to the inquiry o

the courts in Westmin ster-hall; whose jurisdiction extends not only

to inquire into, controul and correct the acts o f

inferior, but also o f

co-ordinate and superior powers.

A breach o f

privilege o f

the House o f

Com mons is stated, and also in what manner, and

b y

what fact their privilegewas broken; there fore this Court must determine, whether the fact charged is b

law a contempt o r

breach o f

privilege. . When it is returned, that a person was committed b

any other court in this hall, for a contempt generally, without specifying the fact o

nature o f

the contempt, this Court cannot inquire in the matter, but must remand

the prisoner. Every court o f justice o f re

cord in the Hall, must necessarily have abso lute power to enforce obedience to their own orders, o

r justice could not possibly b e

admi. mistered to the king's suljects. The House o

Commons is not a court o f justice o f record,

for it cannot administer an oath: it has a cer tain limited jurisdiction; and this Court must judge, whether it has not transgressed, and gone beyond the bounds o

it s jurisdiction,

and must pronounce upon it . If the king doth

exercise any power which is not conformable

to law, this Court will remedy it .

The old writ De Homine Replegiando did not comprehend the mandates o

the king ; but the Habeas Corpus extends to them, and to a

acts o f

power not conformable to law. If the Court

o f

Chancery, which is a superior court in civil causes, should exceed it s jurisdiction, and in terfere b y

injunction in criminal cases, the in ferior court would determine against the Court

o f Chancery, and would discharge any one from imprisonment whom that Court should commit fo

disobedience to such injunction.

ThisCourt must enquire, whether theHouse

o f

Commons has not exceeded it s

lawful juris diction. The lord mayor is charged with a

contempt. The question is ,

whether he is

guilty o f a contempt; that is to say, whether

the fact charged upon him amounts b y

law to

a contempt. The House o f

Commons makes

a n

order for committing a printer, and that order expresses who shall take him into custody, namely, the serjeant, o

r deputy serjeant a t

arms o f

the House. The printer is taken into custody b

y a messenger, within the city o f

London; h e complains to the lord mayor; who

examines into his complaint, proceeds judicial ly, and according to law; and after such exa mination, according to the best o

his judgment,

is o f

opinion, that the warrant o f

si r

Fletcher Norton does not justify the taking the printer into custody b

y a messenger o f

the House, in

the city o f

London. How does this interfere with the lawful iurisdiction o

the House of Commons; and how does it exceed the lawful jurisdiction o

the lord-mayor, within the city

o f

London f The jurisdiction o f

the House must b

limited to some particular objects: the claim o

f a n

unlimited power in this country is

absurd, and destroys itself. In the great ques tion, inAshby andWhite,” about the Aylesbury men, we find, that in a conference between the Lords and Commons, it was agreed, that the Commons cannot, b

any vote o r

resolution o f

their own, assume o r acquire any new juris

diction o r privilege. Here is a warrant under .

the hand .. }

si r

Fletcher Norton, speaker. Sir Fletcher Norton has n

o personal authority to

commit whom h e pleases. The Speaker, as

such, has n o

official authority. Whateverau thority h

can have, must b e merely a s

the instrument o f

the House of Commons: his act can b e

valid only b y

the order o f

the House. But that the warrant is made contrary to the order o f

the House, appears to this Court b y

the return o

the Habeas Corpus; consequently, the Speaker having n

o authority o f

his own, and the warrant being contrary to the order, the same is invalid. The messenger executed the warrant in the city: the Speaker had no

authority to empower him to execute it in the city o

London. The House o f

Commons have not a

unlimited jurisdiction; the lord mayor was therefore obliged to examine, whe ther the act o

f power exerted b y

them within the city, was within their jurisdiction. The printer had been charged with printing the speeches o

some members o f

the House, for which he was ordered to be taken into cus tody. The lord-mayor thought the House o

Commons had n o right to order the printer to

b e

taken into custody b y

theirmessenger in the city o

f London, and that the printer ought not

to be committed for the act with which he was charged. There is nothing to b

e pretended in

favour o f

this proceeding o f

the House o f

Commons, but their assumed transcendent power. Now itwould totally destroy a

the

* See the Case, vol. 14, p .

695.

1141] A. D. 1771. [114?on a Commitment by the House ofCommons. benefit, and the very end of the Habeas Cor pus, if the transcendency of any power what ever could blind the eyes of a court of justice, and prevent their enquiry into it

acts. Such a

decision b y

judges sworn to administer faith fully, the laws, would be fatal to every thing that is worth preserving in our boasted consti tution, and would leave the unhappy subjects

o f

this country in a state much worse than a

state o fsavage nature. The greatchief justice

Holt was clearly o fopinion, and held it fo r

good law, that if it appeared upon the face of the re turn o

f a Habeas Corpus, that what the House

o f

Commons called a contempt, was not b y

law

a contempt, the person committed for itmust be

discharged: that the privileges o f

the House

o f

Commons are part o f

the law o f

the land, and therefore the courts here must take notice

o f

them incidentally ; and though this was the opinion o

f a single judge against three others,

# . it was agreed to and supported b y

the House o

f Lords, who, in those days, remembered that they were the hereditary guardians o

the§. Again—Holt held, that the order ofthe House ofCommons forbidding any one to seek o

r pursue a legal remedy against their orders, was illegal and naught; and boldly said so: and accordingly he was o

f opinion, that the persons committed for contempt o

that order ought to have been discharged ; though the three other judges were o

f a contrary opi

nion; and the persons were remanded to

Newgate.t. Upon petition to the queen, a

writ o f

error was allowed, and brought; and before it was argued, the parliament for good reasons was dissolved : but I will venture to

say, if it had been argued, there would have been judgment given b

the House o f

Lords according to Holt's opinion. If the lear et

consuetudo parliamenti, o f

which we hear so

much and know so little, b e

indeed a part o f

the law o

the land, the judges are bound to take notice o

f it ,

and to decide upon it ,

a s they d o

upon every other part o f

the law. It has been said, that lord chief justice Holt was single

in his opinion; nevertheless, I may venture to

say, that his opinion, in the judgment o f

every

honest and unprejudiced mind, will not b e

found light in the scale, against that o f

the three other judges. He was single: but h

had truth and integrity with him, a s

well

a s

the strongest arguments o n

his side, which the conference with the Lords demonstrated ;

arguments which have never yet been, and which cannot now be answered. The other three judgesdiffering in opinion fromhim, there was a writ o

error (as I said before) granted, returnable in parliament; and if the temper o

the times would have permitted it to have been proceeded in

and the parliament had not been ihen dissolved, itmay easily be collected, from the arguments above referred to, that it would havehad from the Lords a most solemn and just decision.

L . C . J. De Grey. Brother Glynn, that

* 2 Ld. Raym, 958, + lbid. 1112,

writ o f error, you mention, was never brought

before the Lords. -

Serjeant Glynn. It is true,my lord, it was never brought directly in question before them; because doubts were started, whether it was a

writ o f right o r

o f

favour, which might b e re

fused b y

the particular efficer. This occasion

e d a petition to the queen, who in answer to

the petition said, she was come to a resolution

to grant a writ o f error, because she was de

sirous to have the matter o f

law settled, for the good o

her subjects: but unhappily for us, the particular circumstances o

those times prevented it; and the parliament was dis solved.

L . C . J. DeGrey. In all cases, except trea

son and felony, I think awrit of error isgranta ble o

f right. The two Houses addressed the queen for different!". The Lords said,it was time enough to decide upon the writ

o ferror, when it came before them.

Serjeant Glynn. My lord, it is for that reason I said, I collect it from other arguments which

make it very reasonable to suppose, that the subject would have had satisfaction and redress from the decision of the House o

Lords.

The question a t presentis, whether this Court

has not power to examine into the jurisdiction

o f

the House o f

Commons? I submit it ,

wit deference to the Court, that you have lawfu power to enquire, whether the House o

fCom mons had any jurisdiction in this case, and that their privileges are not to b

e supposed so

transcendent and mystical, a s

to exclude all enquiry. My lord, I deny that the mayor's act is a breach o

f privilege o f

the House o f

Commons. The lord-mayor was in full pos session o f jurisdiction in the case; h e

was obliged to decide upon the question before him;

h e

was obliged to form a n opinion upon a case within his jurisdiction. Shall his opinion b e

adjudged a contempt Is this the law o f

the land; that when different courts, having juris diction o

the same nature, differ in their de cisions, they are guilty o

fcontempts one against the other, and may b

e punished for such con tempts It is no contempt in me, a private man, to have a

n opinion different from the greatest authorities in this kingdom. It was the lord-mayor's opinion upon the case before

| him; h e

was bound b y

his oath to act pur suant to that opinion; it was his bounden duty

to act accordingly: h e

would have been per jured, if

out o f

respect for any persons, h e

had not obeyed the call o

his conscience. It was no crime for him to entertain the opinion. Entertaining it

he was bound to declare it ,

and

it was his duty to act in consequence o f it . The

conscientious act o f a magistrate, within the

limits o f

his jurisdiction, can never b e a con

tempt, o r punishable. Unless amagistrate acts

wrong from corrupt motives, h e

cannot b e puj.

But suppose for a moment, the lord mayor did not act from his opinion, but from some corrupt motive, it is uot the House o

1143) 11 GEORGE III. [1144Case ofBrass Crosby, esq. Commons, but a jury, that must judge of it

The duty o f a magistrate differs widely from

that o f

an officer. From the latter, a full and ready obedience is required to b

e paid to the orders of the Court whose officer and minister he is ; and such orders, rightly pursued and executed b

him, are his sufficient justifica tion: but the magistrate is bound b

his oath,

and has a n opinion and judgment o f

his own which h

naust follow ; and he is answerable

to the law, and cannot b e justified for the

breach o f

his oath and the law, b y

any order

o r

resolution o f

the greatest authority. Your lordships are now called upon to say, whether the lord-mayor o

f London, in a case where h

had indisputable jurisdiction, acting by his opinion, and according to his oath, is

guilty o f a contempt o f

the House o f

Com mons, and can b

law b e imprisoned.

Serjeant Jephson. My lords, as I shall not have a

n opportunity o f

answering any argu. ment from the bench, nor can possibly know the objections your lordships may have to dis charging the lord-mayor out o

f custody, I

shall endeavour to anticipate and answer such objections against discharging him, a

occur to

me, and may possibly b e

made b y

the Court. The question is

whether sufficient cause ap pears to the Court upon the return o

this writ,

to imprison the lord-mayor? If no legal cause appears for detaining him in custody, h

must

b e discharged.

1 shall consider the nature, the return, and the consequence o

the writ o f

Habeas Corpus.

It is a prerogative writ of right, to inquire into the cause o

the imprisonment o f

any o f

the king's subjects. If a legal cause of detention doth not appear upon the return o

the writ, the subject must b

e discharged, and set a t li

berty: therefore, if a legal cause does not ap pear upon the return o

this writ, the lord mayor must b

e discharged out o f

custody. This position cannot be denied.

It appears from the cases of sir William Thicknesse, 4 Inst. 434. SirWilliam Chaun cey, 1

2 Rep. 83, and from Bushel's case, Waugh. 135, &c. that the cause o

f imprison ment ought to b

a s specifically returned to

those who judge upon the writ o f

Habeas Corpus, a

s it did to those who first committed

the party. Again, Bethell's case, 1Salk. 848, where the commitment is not to the legal and immediate officer, it is naught. Again, Search's case, 1 leon. 70, where the queen had taken a person into her protec tion, who, notwithstanding, was arrested, and the person arresting committed, and o

Habeas Corpus was discharged. See again Doctor Alphonso's case, 2 Bulst. 259, where the return was bad, n o

cause being therein shewed ; also Thomas Barkham's case, Cro. Car. 507. the like case, ibid. 579. 1 Roll. Rep. 192, 218, Apsley's case, and Ruswell's case, ibid. 245, Codde's case. The determination in

a ll

the cases the same: if the legal charge is

not returned, the person must b e discharged.

TheCourt must judge o f

the cause o f

commit ment returned: if not, why should the writ command the return o

the cause: The cause

is returned, that the Court may judge, whether the person is intitled to his liberty, o

not. It

is n o objection in this case, to say, that the

House o f

Commons having a power to com mit, therefore this Court must not judge of the cause o

commitment returned; for thiswould prove toomuch; because it would go to every other court having jurisdiction to commit. Suppose the Court o

f King's-bench, which is

equal, and perhaps superior in some respect to

this court, should commit a person; and the person committed should b

e brought here by Habeas Corpus; this Court would certainly take notice, and inquire into the cause re turned ; and if this Court thought it not a suf ficient cause, would discharge the person; otherwise, how would the end o

f bringing the writ o

Habeas Corpus b e

answered?

It is no objection in this case, to say, that the Court cannot examine the cause as stated

in the return, because the Court would then determine upon the privileges o

the House o f

Commons: the Court must, and doth fre quently determine upon the privileges o

f par liament, when they come incidentally before them. See the earl o

f Banbury’s case, 2 la. Raym. 1247. Salk. 512. 2 Stra. 987-8. This Court made no sort of hesitation to determine

in Wilkes's case, upon the privilege o f parlia

ment. 2Wilson 151. Why then should they not now enter into this question, touching the privilege o

fparliament? In lord Shaftesbury's and Mr. Murray’s cases, the returns were ge neral, for contempts o

the House, without stating the particular facts; but the facts o

the supposed contempt in this case appear, which we contend cannot b y

any legal consiruction amount to a contempt, and therefore that the lord mayor must b

e discharged. The House

o f

Commons having determined it to be a con tempt, does not alter the case : a fact does not become a contempt b

being recited to b e

such. The Court must consider, whether the warrant for my lord mayor's commitment is the war rant o

the Speaker a s speaker o f

the House

o f Commons, a s

si r

Fletcher Norton inay act

in a double capacity. (Here it seems there was laughter.)

L . C . J. De Grey.—Sir Fletcher Norton

signs himself Speaker.

Serj. Jephson.—His signing himself Speaker will not help the warrant, if the cause is not sufficient; and the Court may rather suppose the mistake committed b

si r

Fletcher Norton

in his private capacity, than b y

the House o f

Commons. Suppose some future speaker, o f

some future House o f Commons, should recite

in his warrant, that the House o f

Commons

had adjudged it a breach o f privilege, and con

tempt, to sue out a statute o f bankrupt against

one o f

theirmembers, which b y

act o f parlia

ment any one is permitted todo; and should in

consequence commit a person for such legal

1145) A. D. 1771. [1146on a Commitment by the House ofCommons. act: if the person was brought by writ of Ha beas Corpus before this Court, would not the Court take cognizance of the commitment P Would they not determine it no breach of pri vilege? Are acts of parliament of less force than such a recital in a speaker's warrant P Suppose a person is committed by a similar warrant, for proceeding according to act ofpar liament against amember of the House in an action of debt; shall he have no remedy from the law, which led him into the supposed trans gression ? Suppose a justice of peace should commit a member of the House of Commons for treason, felony, or breach of the peace, and the speaker's warrant should recite it to be a Contempt; will this Court say, they can take no cognizance of such a commitment by the House of Commons? Suppose a

ll the officers

o f

this Court should b e

recited in the speaker's warrant to b

in contempt, for executing the process o

this Court, will this Court give no remedy; and must this and every other court

o f justice be annihilated, whenever the speaker's

warrant declares a ll

it s

officers in contempt f

How is it possible to distinguish the present case from those I have mentioned, ifyou must not examine the cause returned, but say it is

sufficient if a contempt is charged f Serjeant Hawkins, in his 2

vol. 110, gives u s

clear enough his thoughts upon this subject. He says there, (among other things) that if a sub ject should be committed b

either o f

the Houses o

parliament, it cannot be imagined that the law, which favours nothingmore than the liberty o

the subject, should give u s a re

medy against commitments b y

the king him self, appearing to b

e illegal, and give u s

n o

manner o f

redress against a counnitment b y

our fellow-subjects, equally appearing to b e

unwarranted.

I think I have now sufficiently cleared this case from a

the objections that can b e brought

against it s being inquired into. The question

therefore is ,

whether o n

the return there ap pears sufficient cause o

detention P. Three causes are mentioned, and a

ll urged a s

breaches

o fprivilege. 1. Fordischarging a printer; 2.

for having signed a warrant for the commit. ment o

the messenger; and, 3 ,

for holding him to bail.

To make the lord mayor guilty o f

the first supposed contempt, it ought surely to appear

to the Court, that Miller the printer was in the legal custody o

the messenger. Now, Miller never was in the legal custody o

the messen

,ger; for the warrant to take u p

Miller was directed to the Serjeant a

Arms o f

the House

o f

Commons, o r

his deputy, and not to the mes senger; so that Miller was in the illegal cus tody o f

the messenger, therefore the lord mayor did right.—Miller was ordered into the custody

o f

the Serjeant a tArms, o r

his deputy; but the contrary appears upon the return, in the recital of the order: for that intimates, that he was taken into custody b

the messenger, b y

virtue

o f

the warrant o f

the Speaker o f

the House, issued under the order o

the House, Miller

was taken into custody b y

the messenger in the city o

f London, neither the Serjeant a t

Arms

o r

his deputy being present. The messenger,

I say, was guilty of false imprisonment, having

n o

warrant directed to himself, nor acting in

aid and assistance o f

the Serjeant a t Arms, o r

his deputy, to whom the warrant to take up Miller was directed, for neither o

them were present; so that if an action of false imprison ment was to b

e broughtagainst the messenger,

h e

could not justify what h e

has done: and if

h e

cannot justify in a n

action o f

false imprison ment, how could h

e justify before the lord mayor? A

for the other supposed contempt,

o fsigning a warrant against the messenger,

and holding him to bail; the messenger ‘. been guilty o

f a n

assault and false imprison ment, in taking Miller the printer into custody,’

in the city o f London, without any legal war

rant o r authority: what contempt is it to sign

awarrant against the messenger?

Mr. Just. Gould.—The messenger was com mitted for having executed a warrant o

the Speaker.

Serjeant Jephson.—That does not- In there appear; your lordships eannot fir.#.” know that; fo

the return only ſº. says, for signing a warrant against ºn: of themessenger. the messenger. For these reasons, -

I pray the lord mayor may be discharged out

o f

the custody o f

the lieutenant o f

the Tower ofLondon.

L . C . J. De Grey—If either

myself o r any o f my brothers o n

the bench, had any doubt in this case, we should certainly have taken some time to consider, before we had given our opi nions; but the case seems so very clear to u s

all, that we have n o

reason for delay. The writ b y

which the lord mayor is now brought before us, is a Habeas Corpus a t com mon law, for it is not signed per statutum. It

is called a prerogative writ for the king; o r a

remedial writ: and this writ was properly ad vised b

the counsel for his lordship, because

a ll

the judges (including Holt) agreed, that such awrit a

the present case required, is not within the statute. This is a writ b

which the subject has a right o

remedy to b e dis

charged out o f custody, if he hath been com

mitted, and is detained contrary to law; there fore the Court must consider, whether the au thority committing, is a legal authority. If

the commitment is made b y

those who have authority to commit, this Court cannot dis charge o

bail the party committed; nor can this Court admit to bail, one charged o

r com mitted in execution. Whether the authority committing the lordmayor, is a legal authority

o r not, must b e adjudged b y

the return o f

the writ now before the Court. The return states the commitment to b

e b y

the House o f

Com mons, for a breach o

f privilege, which is also stated in the return ; and this breach o

f privi. lege o

r contempt is ,

a s

the counsel has truly

Opinion o f

thecourt.

1147] 11 GEORGE III. Case ofBrass Crosby, esq. [1118 described it

threefold; discharging a printer in

custody o f amessenger b y

order o f

the House

o f Commons; signing a warrant for the com

mitment o f

the messenger, and holding him to

bail; that is ,

treating a messenger o f

the House o

Commons a s acting criminally in the

execution of the orders of that House. In order to see whether that House has authority

to commit, see Co. 4 Inst. 23. Such a n as

sembly must certainly have such authority; and it is legal, because necessary. Lord Coke says they have a judicial power; each member has a judicial seat in the House: h

e speaks o f

matters o f judicature o f

the House o f

Com mons, 4 Inst. 23. The House o

f Commons,

without doubt, have power to commit persons examined a

their bar touching elections, when they prevaricate o

r speak falsely; so they have for breaches o

privilege ; so they have in

many other cases. Thomas Long gave the mayor o

fWestbury 4!. to be elected a burgess:

h e

was elected, and the mayor was fined and imprisoned, and Long removed.” Arthur Hall,

a member, was sent to the Tower, for publish ing the conferences o

the House. 4 Inst. 23. This power o

committing must b e

inherent in

the House o f

Commons, from the very nature

o f

it s institution, and therefore is part o f

the law o

the land. They certainly always could commit in many cases. In matters o

elec tions, they can commit sheriffs, mayors, offi cers, witnesses, &c. and it is now agreed that they can commit generally for a

ll contempts. All contempts are either punishable in the Court contemned, o

r in some higher court. Now the

parliament has n o superior court; therefore the

contempts against either house can only b e

punished by themselves. The stat. 1 Jac. 1 ,

cap. 13. sect. 3 ,

sufficiently proves that they have power to punish: it is in these words: viz. ‘ Provided always, that this act, o

r any

• thing therein contained, shall not extend to the “diminishing o

f any punishment to b e

hereafter

‘ b y

censure in parliament inflicted upon any

• person which hereafter shall make, o rprocure

* to b e made, any such arrest a s

is aforesaid.’ So that it ismost clear, the legislature have re cognized this power o

the House o f

Com mons,

In the case o f

the Aylesbury men, the counsel admitted, lord chiefjustice Holt owned, and the House o

Lords acknowledged, that the House o

Commons had power to commit for contempt and breach o

privilege. Indeed,

it seems, they must have power to commit for any crime, because they have power to impeach for any crime. When the House o

Com mons adjudge anything to b e a contempt, o r a

breach o fprivilege, their adjudication is a con

viction, and their commitment in consequence,

is execution; and no court can discharge or

bail a person that is in execution b y

the judg ment o

any other court. The House o f

Com mons therefore having a

nauthority to commit, and that commitment being a

n execution, the

* See vol. 6 , p .

1121.

question is ,

what can this court do? It can do

nothing when a person is in execution b y

th e

judgment o f a court having a competent juris

diction: in such case, this court is not a court

o fappeal.

It is objected, 1. That the House of Com mons are mistaken, for that they have n

o t

th is

power, this authority; 2 .

That supposing they have, yet in this case they have not used it

rightly and properly; and, 3 .

That the execu. tion o

their orders was irregular. In order to

judge, I will consider the practice of the court:

in common and ordinary cases. I do no t

fi n d

any case where the courts have taken cogni zance o

such execution, o r

o f

commitments

o f

this kind: there is n o precedent o f

West.

minster-hall interfering in such a case. In it

J. Paston's case, 13 Rep. there is a casecited from the year-book, where it is held that every court shall determine o

the privilege o f

that

court: besides, the rule is ,

that the court o f

remedy must judge b y

the same as th e

court which commits. Now this court cannot take cognizance o

f a commitment b y

th e

House ºf

Commons, because it cannot judge b y

th e

same law; for the law b

which the Commonsjudge

o f

their privileges is unknown to us .

If th e

court o f

Common-Pleas should commit a per

son fo r a contempt, the court o f King's bench

would not inquire into the legality or particular cause o

f commitment, if a contempt was re

turned; yet in some cases the court o fKing's.

bench is a court o f inquiry, but in this case is

only co-ordinate with this court. In th e

east

o f

Chambers, [Cro. Car. 168, and vo l. 8 , 9 .

373, o f

this Collection,] Chamberswashrough!

u p

b y

Habeas Corpus out o f

the Fleet; audiº was returned, that h e

was committed b y

virtuº

o f a decree in the Star-Chamber, b y

reason

o f

certain words h e

used a t

the council-table, sº

for which he was censured to be committed" the Fleet, ti

h e

made his submission at th e

council-table, and paid a fine o f 2,000l. aulº'

the bar h e prayed to b e delivered, because

the

sentence was not warranted b y

any la"." statute : for the statutes Hen. 7

which is"? foundation o

the court o f

Star-Chamber.”

n o t

give them any authority to punish." words only. But a

the court informed him; that thecourt o

Star-chamber was no t

errºº

b y

the stat. 8 Hen. 7 ,

but was a court º' years before, and one o

the most high a n d ho

nourable courts o f justice; and to deliº".

who was committed b y

the decree o f

"..." the courts o

f justice, was not the usagº

o f

thiſ

court; and therefore h e

was remanded.

h e

courts o f B .

R . o r C . B .

never discharged")

person committed fo r

contempt, i n not answer"

ing in the court o f Chancery, if th e

return." for a contempt. If the Admiralty cour*. mits fo

r a contempt, o r

one b e

taken "P. committed o

a n

'Excommunicato Capit" this court never discharges the person**.

mitted. Formerly, when many abusº were committed, and the people could n

º. remedy, the subject was n

o t

contented." h

ancient Habeas corpus, b u t

d id

n o t*

1149] A. D. 1771. [1150on a Commitment by the House of Commons. of the courts for refusing them what they could not by law grant them; instead of that, they sought redress by petition to the throne. In chief justice Wilmot's time, a person was brought by Habeas Corpus before this court, who had been committed by the courtofChan cery ofDurham. That court being competent, and having jurisdiction, the man was not dis charged, but recommitted. How then can we do any thing in the present case, when the law by which the lord-mayor is committed, is diffe rent from the law by which he seeks to be re lieved? He is committed by the law ofparlia ment, and yet he would have redress from the common law. The law of parliament is only known to parliament-men, by experience in the House. Lord Coke says, every man looks for it, but few can find it

The House o f

Com mons only know how to act within their own limits. We are not a court o

f appeal. We do not know certainly the jurisdiction o

the House o

Commons. We cannot judge o f

the

laws and privileges o f

the House, because we have n

o knowledge o f

those laws and privi leges. We caunot judge o

the contempts

thereof: we cannot judge o f

the punishment thereof.

I wish we had some code of the law ofpar liament; but till we have such a code, it is im ossible we should b

able to judge o f it .

Perº a contempt in the House ofCommons, in

theChancery, in this court, and in the court o f

Durham, may b e very different; therefore we

cannot judge o f it ,

but every court must b e

sole judge o f

it s

own contempts. Besides, a s

the court cannot g o

out o f

the return o f

this writ, how can we inquire into the truth o

the fact, a

to the nature o f

the contempt? We have n

means o f trying whether the lord

mayor did right o r wrong. This court cannot

summon a jury to try thematter. We cannot examine into the fact. Here are n

o parties in

litigation before the court. We cannot call in

any body. We cannot hear any witnesses, o r

depositions o f

witnesses. We cannot issue any process. We are even now hearing e

r parte, and without any counsel o

the contrary side. Again, if we could determine upon the con tempts o

f any other court, somight the other courts o

f Westminster-hall; and what confu sion would then ensue ! none o

f u s knowing

the law b y

which persons are committed b y

the House o

Commons. If three persons were committed for the same breach o

f privilege,

and applied severally to different courts, one court perhaps would bail, another courtdis charge, a third re-commit. Two objections have been made, which I

own have great weight; because they hold forth, ifpursued to al

possible cases, conse quences o

most important mischief. 1st, It

is said, that if the rights and privileges o f par

liament are legal rights, for that very, reason the Court must take notice o f

them, because they are legal. And 2dly, if the law of par liament is part o f

the law o f

the land, the judges must take cognizance o

one part o f

the law o f

4 .

the land, a s

well a s o f

the other. But these objections will not prevail. There are two sorts

o f

privileges which ought never to b e

confound ed; personal privilege, and the privilege be longing to the whole collective i. of that as sembly. For instance, it isthe privilege o

fevery individual member, not to b

arrested. Ifhe was arrested, before the stat. 1

2 & 13W. 3 ,

the method in Westminster-hall was, to discharge him b

writ o f privilege under the great seal,

which was in the nature o f a Supersedeas to

the proceedings; and a s

soon a s

it came into the court o

f B . R .

and was pleaded there, then

it became a record, and the pleading concluded, “si curia domini regis placitum praedictum cog

* noscere velit aut debeat.” The stat. 11 & 12 W. 3

has altered this, and there is now n oocca

sion to plead the privilege o f a member o fpar

liament. 2 Stran. 985. Holiday e t

a l’

versus colonel Pitt. There is a great difference be tween matters o

fprivilege coming incidentall before the Court, and being the point itself d

rectly before the Court. In the first case, the Court will take notice o

them, because it is

necessary, in order to prevent a failure o f jus

tice. A s

in lord Banbury's case, where the court o

f King's-hench determined against the determination of the House of Lords: but

in that case they considered the legality and validity o

the letters patent, without regarding the other right o

f a seat in the House o f Lords,

with which theCourt did not concern themselves. The counsel at the bar have not cited one case where any court o

this hall ever determined a

matter o f

privilege which did not come inci dentally before them. If a question is to be

determined in this court touching a descent, whereby property is to b

e determined, and which depends upon legitimacy; that is

, whe

ther the father and mother were married law fully; this court must determine b

the bishop's certificate. But in some cases, where legiti macy o f

marriage does not come in question, but cohabitation only for agreat length o f time, which is evidence o f amarriage, comes inques tion, this Court will determine according to the verdict o

f a jury, although the courts o f

West minster-hall g

b y a different rule from the

spiritual courts. But the present case differs much from those which the Court will deter mine; because it does not come incidentally before us, but is brought before u

sdirectly, and

is the whole point in question; and to determine

it ,

we must supersede the judgment and deter mination of the House of Commons, and a

commitment in execution o f

that judgment.

Another objection has been made, which likewise holds out to us, if pursued in al

it s

possible cases, some dreadful consequences;

and that is ,

the abuses which may b e

made b y

jurisdictions from which there is n o appeal, and

for which abuses there is n o remedy: but this

is unavoidable; and it is better to leave some courts to the obligation o

their oaths. In the case o

f a commitment b y

this Court o r

the King’s-bench, there is n

o appeal. Suppose

the Court o f B . R .

sets a n

excessive fine upon

1151] 11 GEORGE III. Case of Brass Crosby, esq. [1152 /

a man for a misdemeanor, there is no remedy,

no appeal to any other court. We must de pend upon the discretion of some courts. A man not long ago was sentence, to stand in the pillory, by this court ofCommon Pleas, for a contempt. Some may think this very hard, to be done without a trial by jury; but it is necessary. Sippose the courts should abuse their jurisdiction, there can be no remedy for this: it would be a public grievance; and re dress must be sought from the legislature. The laws can never be a prohibition to the houses of parliament; because, by law, there is nothing superior to them. Suppose they also, as well as the courts of law, should abuse the powers which the constitution has given them, there is no redress; it would be a public grievance.

The constitution has provided checks to pre vent it

s happening; it must be left a t large;

it was wise to leave it at large : some per sons, some courts, must b

trusted with dis cretionary powers; and though it is possible, it

is in the highest degree improbable, that such abuses should ever happen; and the very sup posal is answered b

serjeant Hawkins, in the place cited a

the bar. As for the case o f

the Chancery committing for crimes, that is adif ferent thing, because the Chancery has n

o cri minal jurisdiction; but if that court commits for contempts, the persons committed will not

b e discharged b y

any other court. Many au thorities may be drawn from the reign o

Charles, but those were in times o f

contest.

At present, when the House o f

Commons con mits for contempt, it is very necessary to state what is the particular breach o

fprivilege; but

it would be a sufficient return, to state the breach o

f privilege generally. This doctrine

is ſortified b y

the opinion o f

a ll

the judges, in

the case o f

lord Shafiesbury, and I never heard this decision complained o

till 1704. Though they were times o

f heat, the judges could have nomotive in their decision, but a regard to the laws, The houses disputed about jurisdiction, but the judges were not concerned in the dis pute. As for the present case, I am perfectly satisfied, that if lord Holt himself were to have

determined it ,

the lord-mayor would b e re

inanded. In the case o f

Mr. Murray, the judges could not hesitate concerning the con tempt b

y a man who refused to receive his set

tence in a proper posture. All the judges agreed, that he must b

e remanded, because h e

was committed b y a court having competent

jurisdiction. Courts o f justice have n o cogni

zance o f

the acts o f

the houses o f parliament,

because they belong ‘adaliud examen.” I have the most perfect satisfaction in my own mid 1

in that determination. Sir MartinWright, who felt a generous and distinguished warmth for the liberty o

the subject; Mr. Justice Deni son, who was so free from connexions and am bition o

f every kind; and Mr. Justice Foster, whomay be truly called the Magna Charta o

liberty o f

persons, a s

well a s fortunes; a ll

these revered judges concurred in this point: I am therefore clearly and with full satisfaction o

opinion, that the lord-mayor must b e re

manded.

Just. Nares.* I shall ever entertain a most anxious concern for whatever regards the li

berty o f

the subject. I have not the vanity to

think I can add any thing to the weight o f

the arguments used b

my Lord Chief Justice and my brothers. I have attended with the utmost industry to every case and argument that has been produced, and most heartily and readily concur with my Lord Chief Justice and my brothers.

The Lord-Mayor was remanded to the Tower.

* The Judgments ofMr. Justice Gould and Mr. Justice Blackstone being inserted at large

in vol. 8 ,

pp. 3 3

e t seq. are not here repeated.

Note, in p .

38, 1.54, b y

a n

accident o f

the press, was omitted the following clause, viz. “that lord chief justice Scroggs thought he

might b e safely entrusted with the power o f

prohibiting and suppressing such publicatious

a smight give him offence.” See the Case o f

Henry Carr, vol. 7 ,

p .

1111; and also vol. 8 ,

p .

187.

1158] A. D. 1763. [1154Case ofGeneral Warrants.

544. The Case of John WILKEs, esq. against Robert Wood, esq.

in an Action of Trespass. Before Lord Chief Justice Pratt,

in theCourt ofCommon Pleas, Michaelmas Term : 3GEoRGE III. A. D. 1763. John Wilkes, esq. against Wood. The Case of GENERAL WARRANTs.

Middleser to wit, Dec. 6, 1763.

AT the court of Common-Pleas, at West minster. Sittings after Michaelmas term, be fore lord chief justice Pratt; JohnWilkes, esq. plaintiff; RobertWood, esq. defendant. In an action of trespass, for entering theplain tiff’s house, breaking his locks, and seizing his apers, &c. The plaintiff’s counsel were, serjeant Glynn, Mr. Recorder Eyre, Mr. Stow, Mr. Wallace, Mr. Dunning, Mr. Gardiner. The defendant's counsel were, solicitor-gene ral Norton, serjeant Nares, serjeant Davy, ser jeant Yeates. Attorney for the plaintiff, Mr. Phillips of Cecil-street.

For the defendant, Philip Carteret Webb, esq. solicitor to the treasury, and Mr. Secon dary Barnes.

The Special Juny.

Plukenet Woodroffe, esq. of Chiswick; William Baker, esq. of Isleworth; William Clarke, esq. of Edmonton; James Gould, esq. of Edmonton; Stephen Pitt, esq. of Kensington; Nathaniel Turner, esq. of Hampstead ; Jonathan Richardson, esq. ofQueen-Square; John Weston, esq. ofHatton-Garden; Harry Blunt, esq. of Hatton-Garden; Henry Bostock, esq. of Hatton-Garden; John Boldero, esq. of Hatton-Garden; John Egerton, esq. of St. John's-street.

Mr. Gardener opened the case, with de claring the foundation, that on the 30th of April last, Mr.Wood, with several of the king's messengers, and a constable, entered Mr. Wilkes's house; that Mr. Wood was aiding and assisting to the messengers, and gave direc tions concerning breaking open Mr.Wilkes's locks, and seizing his papers, &c. for which Mr.Wilkes laid his damages at five thousand pounds.

Serjeant Glynn then enlarged fully, on the particular circumstances of the case, but re marked that the case extended far beyond Mr. Wilkes personally, that it touched the liberty of every subject of this country, and, if found to be legal, would shake that most precious inhe ritance of Englishmen. In vain has our house been declared, by the law, our asylum and de fence, if it is capable of being entered, upon WOL. XIX.

[Lofft's Reports.]

any frivolous or no pretence at all, by a secre tary of state. Mr. Wilkes, unconvicted of any offence, has undergone the punishment. That of a

offences that o f a seizure o f papers was

the least capable o f reparation; that, for other

offences, a n acknowledgment might make

amends; but that for the promulgation o f

our most private concerns, affairs o

the most secret.. nature, no reparation whatsoever couldmade. That the law never admits of a ge neral search-warrant. That in France, o

Spain, even in the Inquisition itself, they never delegate a

infinite [qu. indefinite] power to

search, and that n o magistrate is capable o f

dele gatingany such power. That somepapers, quite innocent in themselves, might, b

the slightest alteration, b

converted tocriminal action. Mr. Wilkes, a

s a member o f

parliament, demanded the more caution to b

e used, with regard to the seizure o

his papers, a s it might have beenna

turally supposed, that one o f

the legislative body might have papers o

f a national concern,

not proper to b e exposed to every eye. When

we consider the persons concerned in this affair,

it ceases to be a n outrage to Mr. Wilkes per

sonally, it is a n outrage to the constitution it

self. ThatMr.Wood had talked highly of the power o

f a secretary o f state; but h e hoped by

the verdict he jà

b e brought to think more

meanly o f it . That if the warrants were once

found to b e legal, it would fling our liberties

into a very unequal balance. That the con stitution o f

our country had been so fatally wounded, that it called aloud for the redress of

a jury o f Englishmen. That their resentment against such proceedings was to b

e expressed

b y

large and exemplary damages ; that trifling damages would put n

o stop a t

a ll to such

proceedings: whichwouldplainly appear, when they would consider the persons concerned in

the present prosecution, persons, who b y

their duty and office should have been the protectors

o f

the constitution, instead o f

the violaters o f it .

Mr. Eyre, the Recorder o f London, then

stood up: h e apologized to the bench for ap

pearing in the present cause, considering the office h

e bore, but that h e thought it was a

cause which affected the liberty o f every indi

vidual. [Lord Chief Justice desired hewould make n

o apology.], . He then observed, that the present cause chiefly turned upon the ge neral question, whether a secretary o

state has

a power to force persons houses, break open their locks, seize their papers, &c. upon a bare suspicion o

f a libel b y a general warrant, with

out name o f

the person charged. A strange question, to b

e agitated in these days, when

4 E

1155] sGEORGE III. [1155Case ofGeneral Warrants— the constitution is so well fixed, when we

have a prince upon the throne, whose virtues are so great and amiable, and whose regard

for the subject is such, that he must frown at every incroachment upon their liberty. No thing can be more unjust in itself, than that theº of a man's guilt shall be extracted fromis own bosom. No legal authority, in the present case, to justify the action. No prece dents, no legal determinations, not an act of parliament itself, is sufficient to warrant any proceeding contrary to the spirit of the consti tution. Secretary Williamson, in Charles the 2d's time, for backing an illegal warrant, was sent to the Tower by the House of Commons. The jury, he observed, had no such power to com mit; he knew it well; but, for his part, he wished they had, as he was persuaded they would exercise it

in the present case, a s it

ought to be. On the famous certificate in queen Eliza beth's time, how far a man might b

detained

b y a warrant o f a privy counsellor, the answer

o f

the judges, even in those days, confined it to high treason only, and the power to arrest to

be derived from ſº personal command of the king, o

r a privy counsellor. He then congra

tulated the jury, that they had now in their power the present cause, which had been b

much art and chicanery, so long postponed. Seventy years had now elapsed, since the Re volution, without any occasion to enquire into this power o

the secretary o f

state, and h e

made n o

doubt but the jury would effectually prevent the question from being ever revived again. He therefore recommends it to them

to embrace this opportunity (least another should not offer, in [... of instructing those great officers in their duty, and that they (the jury) would now erect a great sea mark, b

which our state pilots might avoid, for the future, those rocks upon With they now lay shipwrecked.*

The first witness on the prosecution was Matthew Brown.—Says, that h

is butler to

Mr. Wilkes. That on the 30th o f April last,

about nine o'clock in the morning, Watson, Blackmore, Money, and Mann, king's messen gers, and Chisholm, a constable, came to Mr. Wilkes's house. That Watson followed Mr. Wilkes into the house, and Money came next; Blackmore and Mann followed after. That this witness never heard them, o

either o f

them,

declare their business, o r

the purpose o f

their coming. That as soon as Mr. Wilkes was carried away, which was about noon, Mr. Wood and Mr. Stanhope came: that Mr. Wood asked Mr. Watson, “Have you locked

u p

a ll

the rooms where Mr. Wilkes's papers are?” He answered, “Yes; I have got the key

o f

the study.” That Mr.Wood andMr. Stan hope then went into the parlour; the messen gers cºntinued waiting in the passage. That

n N . B .

TheRecorder shone extremely.”

soon after Mr. Webb knocked a t

the door; Lupon it

being opened thiswitness attempted to

stop him, but h e

rushed in .

That Mr. Wood staid that time about half a

n hour; that when

h e

went away h e gave orders to the messen

gers, that n o

one should come in o r go out till

h e returned, but bade them lock u p

a ll

the doors. That he came back again in about an hour That in the mean time several ofMr. Wilkes's friends came, viz. Humphry Cotes, Gardiner, Phillips, Hopkins, &c. and were denied admit tance b

the constable: that Watson, themes senger, upon being called upon b

these gen tlemen to produce his orders for refusing them admittance, said h

had only a verbal order fromMr.Wood. That the messengers, how ever, did a

last permit the gentlemen to come

in .

That soon after lord Temple came ; that

in a short time after Mr.Wood returned, and appeared to b

e very angry that the gentlemen had been admitted, “Who let these men in f° That the messengers answered, “They would come in.” Mr. Wood then asked, “Who would come in P

’’ Mr.Gardiner answered, “It was I, Sir.” That soon after thatMr.Wilkes's friends went away; thatMr.Wood then called for a candle, which was brought him, and h

and Mr. Stanhope then went u p

stairs, with Money and Blackmore, the messengers, who appeared to take their orders from Mr. Wood and Mr. Stanhope. That they rummaged al

the papers together they could find, in and about the room; that they (the messengers) fetched a sack, and filled itwith papers. That Blackmore then went down stairs, and fetched

a smith to open the locks. That Mann, a

messenger, then came, and would whisperMr. Wood, who bade him speak out; he then said

h e brought orders from lord Halifax to seize

a llmanuscripts. That the smith then came, and, b y

the direction o f Blackmore, themes senger, opened four locks o

the lower drawers

o f a bureau; that they took out a ll

the papers

in those drawers, and a pocket-book o f

Mr. Wilkes's, and put them a

into the sack toge ther, and then sealed u

the sack. That this witness was present during a

this time; that the messengers were obedient, and paid a

nen tire regard to the directions o

Mr. Wood and Mr. Stanhope. That when Mr. Wood went away itwas near two o'clock in the afternoon; that Mr.Wood, upon the whole, might be near two hours and a half in Mr. Wilkes's house. That n

kind o f inventory was made o f

the papers which were put into the sack. That Mr. Stanhope appeared a

ll along to be favour able, and frequently bade the messengers b

cautious and careful. Upon his being cross-examined, h

e said,

That Mr.Wilkes was carried away about noon. That Mr. Wilkes went out in the morning about six, and returned home about nine o'clock. That Mr. Hopkins had been there thatmorning before. That Mr.Wood did ab solutely and positively (this witness avers it

)

order, upon his going out, that a ll

the doors

should be lo up, particularly the street

1157] Wilkes v. Wood. A. D. 1763. [1158

door: that Mr.Wood told the messengers they knew their orders, and bade them execute them. That he remembers Mr Stanhope bid them be careful in rummaging, but don't recol lectMr. Wood said so. That Chisholm, the constable, held the sack, whilst the messengers filled it with papers. That Mr.Wood was not there when the locks were opened: he now says, that Mr.Wood had before declared that the locksmust be opened. That Mr. Stanhope said, to be sure, the locks must be opened. That Mr. Wood he now says, was at one time above an hour in Mr. Wilkes's study. That Mr. Stanhope was there with Mr.Wood at the time the papers were carried away. That Mr. Webb was gone away some time before.

Richard Schofield says, that he is a livery servant to Mr. Wilkes : that he let Mr.Wood in at the door on the 30th ofApril, about eleven o'clock in the morning, as he thinks, to the best of his remembrance; that Mr.Wood staid the first time about a quarter ofan hour. He confirms in general the last witness. That Wood went away, and returned in about an hour. That the messenger, upon being asked by Mr. Gardiner for his orders, said he had only verbal ones, from Mr.Wood. That he can give no account of what passed up stairs, as he remained a

that time in the passage be low. He confirms the last witness on that cir cumstance o

the messenger, Mann's, coming from lord Halifax, with fresh orders. That a

ost-letter came, in the mean time, directed to

Ir.Wilkes, which the messenger, Watson, re ceived, and would not deliver till Mr.Wood returned, who immediately delivered it

un opened, into this witness’s hands. That Mr. Wood, when h

went away, ordered the doors

to b e kept fast locked, particularly the street

door. That Blackmore came down stairs, and asked this witness where Mr.Wilkes's smith lived, and h

answered him he believed in

Cheapside. Upon his being cross-examined, h

e said,

That Mr.Wood came about a quarter o f

a n

hour afterMr.Wilkes was carried away to lord Halifax. That Mr. Wood,Mr. Stanhope, the four messengers, with the constable, together with another gentleman, whom h

did not know, were the persons who came into the house.

Humphry Cotes says, that h e

was a tMr.

Wilkes's the 30th o f April last, in themorning,

about eleven o'clock, being sent for b y

Mr. Wilkes. That Mr. Wood came in between twelve and one: that h

(this witness) had been down to the court o

Common Pleas, to

apply for a Habeas Corpus, and, upon his re turn toMr.Wilkes's house, was told that Mr. Wilkes was not a

t home, and that he, Cotes,

must not come in ; this was between twelve and one o'clock. He demanded the reason why be must not come in, and b y

whose au thority the door was locked. The man a t

the door answered, b

the secretary o f

state's.

[The Solicitor General disputed this evidence,

a sMr. Cotes did not declare the man's ...!But Cotes then said, that the door-keeper calle

Watson, the messenger, to him; who said he

had the secretary's verbal order only, but not

a written one. That this witness did then in sist upon being admitted, and did accordingly enter the house. That Mr. Wood presently after came in, and said with anger, “What do

these men do here 2." That this witness then said, “What business have you here, Sir 2"

Mr.Wood answered, that he was the secretary

o f

state's secretary. That this witness then said, h

had nothing to d o

with the secretary

o f state, nor his secretary neither; that his

name was Humphry Cotes, and was to b e

spoken with a t

"W. That h e

(this wit ness) staid a

tMr.Wilkes's house till past two o'clock. That h

was desired b y

Mr. Wood

to b e present when Mr.Wilkes's papers were

sealed up, which h e

refused to do.

h i

The Solicitor-General did not cross-examine lin.

Richard Hopkins, esq. says, that h e

went to

Mr. Wilkes on the 30th o f April last, athalf

a n

hour past nine o'clock in the morning, and staid two hours; found then n

kind o f

ob struction. That Mr. Wood was not there at this time, a

s this witness verily believes ; but

that, when he returned, Mr.Wood had been there. Confirms the last witness's account, o

the obstructions to his entering the house, a t

this his last coming. That h e

was desired to

b e present a t

the sealing u p

Mr. Wilkes's pa pers, which h

declined doing.

Arthur Beardmore says, that he was in

Westminster-hall o n

the 30th o f April last,

and, hearing o f

Mr.Wilkes's arrest, he wentdi rectly to his house, and, with some difficulty, gained admittance. That when he gained ad mittance, and came into the parlour, Mr. Wood was there, altercating with the last witness, Mr. Hopkins. ThatMr. Gardiner and Mr. Cotes were then there. That lord Temple was like wise there. That h e

(this witness) observing much confusion, demanded o f

Mr. Wood to

shew his authority, and that much wranglin then ensued. That Mr.Wood and Mr. Web were both there a

this time. That Mr.Wood intreated the company to believe, that the se cretaries had acted entirely pursuant to the ad vice and direction o

the attorney and solicitor generals; towhich this witness answered, that

h e very much doubted it .

That this witness, coming into the parlour again through the passage, saw Mr.Webb standing at the foot o

the stairs, with some keys in his hand, which this witness did presume, and verily did believe,

to b e

some o f

Mr.Wilkes's keys to his private escrutoires and drawers. That Mr. Wood did desire him (this witness) to b

e present a t

the sealing u

Mr. Wilkes's papers, which h e

utterly refused to do. The counsel for the prosecution declined examining Mr. Gardiner and Mr. Phillips, (who had both been present)

o n

account o f

their being employed in the cause; and therefore rest here. The Solicitor General then stood u

p to make

1159] 3.GEORGE III. [1160Case ofGeneral Warrants— the defence, which he divided into two parts; and first, he maintained the plea of not guilty; but if the jury should beof opinion that would not stand good, and that the evidence he should bring would not be capable of setting aside the evidence already produced in court on the other side; he then, secondly, relied on the special justification. He was at a loss, he said, to understand what Mr. Wilkes meant by bringing an action against Mr.Wood, as he was neither the issuer of the warrant, nor the executioner of it. If the constitution had been in such an •gregiousmanner attacked, why not bring the secretaries o

f state, themselves, into court? Why should Mr. Wilkes commence separate actions against each person? Is Mr. Wilkes,

a t any event, entitled to tenfold damages? This

was the first time h e

ever knew a private action represented a

the cause o f

a ll

the good people

o f England. If the constitution has, in any

instance, been violated, the crown must b e

the prosecutor, a

s it is in a ll

criminal cases. The constitution does not consist in any oneparticu lar part o

the law; the whole law is the con stitution o

the country, and a breach in one part o

the law is a s

much a violation o f

the constitution a

o f

another. Though so much has been said o

the other side, with regard to

the injury that might result from the pron:ul gation o

fsecrets, n o proof had been brought o f

anything being promulgated that was not proper

to b e

so .

The arguments which had been used against seizing o

f papers, to procure proof, were felo de s

e ,

unless the major was denied to include the minor. He then went upon the argument touching the warrant, and observed that these warrants had been issued a

far back a s

the courts o f justice could lead

them. That the late act o f

parliament o f

George the second for taking u p

vagrants was

a general search-warrant, and h e

never knew

it was ever esteemed a n infringement o f

our constitution. That these warrants had existed before, al, and since the Revolution, and had been ti

this case unimpeached; that if so con tradictory to the constitution o

this country, they could never have remained to this time.

. He then made a general observation to the jury, that itwas their duty to hear the cause coolly and dispassionately, without any bias to

one side o r

the other. He then went on to

make remarks o n

the evidence which had been given b

the plaintiff; remarked that the ques tion o

liberty had nothing to d o

with the pre sent cause, which only respected the seizure o

papers. That the messengers went bungling

ly about their business; Mr. Wood was only sent to see they did their duty. He then went on to make remarks on the North Briton, N°45. That itwas a libel o n

the

three branches o f

the legislative body, King, Lords and Commons; that it was a libel o f

such

a nature, that when it was before the two

Houses o f

Parliament not one single person,

in either house, ever uttered one single word in

defence o f

it .

That the whole o f

the North Britons were o

such anature, that itastonished

most considerate persons how they should have passed so long unnoticed; that it had attacked private persons, persons in public stations, with

their names written in full length; which had already produced bloodshed, in a

instance which they a

well knew: and what farther fatal consequences might result from thºse publications, who would be answerable ! i

fMr. Wilkes should be proved to b

the authºr o f

these papers, and o f

that libel o f libels, N °

45. (an equal to which h

defied this o r any other

age to produce) if he should be proved to be

the author o f

that paper, which h e

was confi dent h

should b e

able to prove, to the full sa tisfaction o

the court and jury; in that case,

so far from thinking him worthy o f exemplary

damages, h e

was certain they would view him

in his true and native colours, a s a most vile

and wicked incendiary, and a sower of dissen tion amongst his majesty's subjects. He then observed, that the freedom o

this country con sists, that there is n

man so high, that h e is

out o f

the reach o f

the law, nor any man so

low, that h e is beneath the protection o f

it .

That the warrant was legal in itself: that the authority o

f a secretary o f

state was suffi ciently established. That damages should al ways b

e reckoned according to the injury re

ceived: a jury that ever acted on any other principles Certainly forswore themselves. Lord Hulfur then came into court, and being sworn, said, that h

did receive informa tion coacerning N

° 45. That, h e

did issue warrants in consequence o

such information. That h

did desire Mr. Weston, his secretary,

to g o

to Mr. Wilkes's, and see that the mes sengers did their duty: that Mr. Weston de clined it ,

beseeching his lordship to excuse him, o n

account o f

his weak nerves, and il l

state

o fhealth; that he then did desire Mr. Wood

to go, who accordingly went...That he had reason to believe that Mr. Wilkes was the author o

N° 45. That he had information previous to the apprehending Mr.Wilkes, and his lordship believes, to the best o

his remem brance, it was on the very day the warrant was put in execution. That this information tended to prove Mr. Wilkes the author o

N °45; but h e

cannot pretend to charge h is

memory with the entire contents o f

the infor mation. That orders were given b

his lord ship to the messengers, but h

declares that h e

cannot, a t

this time, pretend to recollect either their names o

their persons. That these orders were given b

his lordship previous to

the apprehension o f

Mr. Wilkes. - Upon the Lord Chief Justice expressing ade sire to b

informed b y

his lordship concerning the nature o

the information said to be re ceived a

his office, and about which his lord ship appeared rather shy, and cautious o

en tering upon, the solicitor-general then pro duced a

affidavit o f

Walter Balff, a printer in

the Old Bailey, which was read, in order to

prove Mr. Wilkes the author o f

N*45... [I

cannot recollect the whole o f

this affidavit,

but it had in general a tendency to prove

1161] Wilkes v. Wood. A. D. 1763. [1162 Wilkes the author and this Balff the printer of N° 45.] Upon lord Halifax's being cross-examined, he said, that Mr. Weston is his own secretary, and that Mr. Wood was lord Egremont's se. cretary. His lordship was asked, whether he should think himself then authorized to com mand the secretary of lord Egremont to do any thing. After some hesitation, his lordship an swered, not without consulting lord Egremont. Said, that the offices are carried on in separate departments, but form only one complete se cretaries office. He owns, however, that each secretary has the entire choosing and appoint ing his own officers. That the warrant for the apprehension of Mr.Wilkes was issued (as he calls it

which, being explained, signifies made out) o

the 26th o f April last, and the informa

tion he now fixes to have been received on the

29th o f April, and the arresting Wilkes's per

son o n

the 30th day o f April. [N. B .

His lordship here fairly acknowledges that h

e is sued the warrant three whole days before h

received any information a t all; and that

during these three days the warrant lay dor mant, whilst they were upon the hunt for in telligence.] The king's speech at the close o

the last session o

f parliament was then read. The North Briton, N° 45, was afterwards read.

Some strictures o f

the solicitor-general then ensued, upon the heinousness o

the author's crime.

Thomas Cadell says, That he is apprentice to

Andrew Millar, a bookseller in the Strand; that he is nearly out o

his apprenticeship. That Mr.Wilkes called there in the summer o

1762,

and left word with him, (this witness) that his master should advertise a new paper, shortly

to come out, entitled the North Briton, and to

b e published b y

him (Millar): that his master did, in consequence, advertise it

and was paid

b y

Mr. Wilkes the sum o f

one pound eight shillings, for advertisements. [N. B

The re ceipt was produced in court.] That hismaster did afterwards, upon considering the affair, de cline publishing the North Briton; saying h

would publish n o political matters.

Serjeant Glynn then objected to their going into the evidence, to prove Mr.Wilkes the au thor o

other papers, which had n o respect to

the paper in question; but The Lord Chief Justice allowed it to be a

good corroborating chain: but observed, if they failed in the last link, the whole would fall to

the ground.

William Johnston says, that h e

is a book seller in Ludgate-street. That Mr. Wilkes applied to him to publish the North Briton, previous to it's appearing: that Mr. Wilkes did explain to him the general design ; that he

said h e

must have a publisher who would not stand in fear o f

the censures o f justice. That

h e

never met Mr.Wilkes any where on this account; but thatMr. Wilkes always came to

him. That he, (this witness) upon considera

tion o f

the matter, declined publishing the North Briton. That Mr.Wilkes then desired him to recommend a publisher: that h

e re commended Mr. Kearsley to him. That h

this witness) had a correspondence with Mr. Wilkes, concerning the North Britons, and re vising them for the press; but that, after three

o r

four numbers o f

the paper were published,

h e

(thiswitness) did, upon considering the af. fair, decline that also.

Jonathan Scott says, that h e

knows Mr. Wilkes's hand-writing, and proves a number of letters shewn him to beMr.Wilkes's hand writing, viz.

Nº. 1 ,

dated Westminster, 2 6 July 1762;

2 ,

ditto, 2 9 July ; 3, ditto, 8 August; 4 ,

Aylesbury, 15 August; 5 ,

ditto, 2 5 August;

6 ,

Great George-street, 7 October; 7 ,

Win chester, 1

4 October; 8 ,

ditto, 3 1 October;

9 ,

Great George-street, Friday morning; 10, ditto, 2

7 November; 11, ditto, 12 December; 12, ditto, 1

December. All these were read; they are to Kearsly, and relate to North Bri tons, then sent to b

e published. [N. B .

Be tween. and thirty letters were produced,but these only were read.] Walter Balff says, in the first place, that h

is under a recognizance, and therefore prays

h e may b e

excused from answering any question which may tend to affect o

r injure himself.

A debate ensued for near an hour, whether

h e may o rmay not b e

allowed the privilege. The Solicitor-General very strenuously as serts, that in the present case h

e may not b e

allowed it.

h i Serjeant Glynn, and the Recorder, reply t o

Inn.

The Lord Chief Justice gives it as his opi nion, that the man is not bound to answer to anymatter which may tend to accuse himself.” Balff then says, that he is a printer in the Old Bailey, and that h e

knowsMr.Wilkes. Q. Did you receive this letter? [One being shewn tohim.]—A. Yes.

A letter o f

the 22d o f April was then read o f

Mr. Wilkes toWalter Balff, which, from the purport o

f it ,

has a strong tendency to prove Wilkes the author of N° 45. This letter of Wilkes refers to a

enclosed paper (whichº:does not appear) which he directs Balff tobring in, in the form o

f a letter, betwixt the conclu

sion o f

the next North Briton, and his propo sals. This letter likewise directs Balf to print the North Briton spoken o

in the compass o f

two sheets.

Charles Shaw says, that h e is a n apprentice

to Walter Balff the last witness. That the North Briton, N° 45, was printed a

his master's house. That h

knows Mr.Wilkes, and has seen him often a

his master's house, but that

h e

does not know the business upon which h e

came there.

George Kearsley sworn, but not suffered to

* “Nemo tenetur seipsum accusare." Lofft.

1163) 3.GEORGE III. [1164:Case ofGeneral Warrants— be examined, being under a prosecution at this time.

Michael Curry says, that he is a journeyman printer, that he was employed by Mr.Wilkes to work at the press in Great George-street; that Mr. Wilkes gave them the whole set of the North Britons to be printed, and called them at that time his North Britons.

The Counsel for the Prosecution objected to this last being a proper evidence at a

to the questions; a

sMr.Wilkes o r any other person's

republishing a work, against which there was no judicial determination, could never affect them, a

the original author and publisher o f

it .

They then went into the legality o f

the warrant, and many precedents o

the same kinds o

warrants were produced in court, to

prove such warrants the constant uninterrupted course of the secretaries office from the Revo lution. The warrants from lord Halifax, for apprehending the authors, printers and pub lishers o

the North Briton, N° 45, were iike wise read.

Lovell Stanhope, esq. says, that h e

came to Mr. Wilkes's house immediately after he was carried away to lord Halifax's; that h

went withMr.Wood, and stayed there half an hour; that h

was there but once, and stayed till the papers were sealed up; that he uever went out

o f

the study; that Mr.Wood was in the study but part o

the time, and did nothing a t

a ll

but observe what past; that h

e (Mr.Wood), gave

n o

orders to break locks b y

any kind o fmeans,

nor gave the messengers any orders o r

direc. tions a

t all, but only bade them d o

their duty, and use civility That Mr. Wood was not in

the room when the smith was sent for, nor gave any orders for that purpose, a

sMr. Stan hope observed; that Mr.Wood was not pre sent when the locks were opened. But that it

was Blackmore, the messenger, who broke open the locks, (in this circumstance Mr.Stan hope exactly confirms Matthew Brown's evi dence.) That Mr.Wood went toMr. Wilkes, merely a

the instance o f

lord Halifax, in order

to enforce a due and proper obedience to and execution o

the warrant, and to prevent the messengers from committing any blunders. That a debate arising, whether a table with a

locked drawer should be removed entire o r

opened, Mr.Mann was sent to lord Halifax for directions, and brought word that the drawers must b

e opened. Upon his being cross-examined, said that the messengers were to takemanuscript papers only, and not meddle with improper matters, such a

s printed books, papers, &c. That he

did think it incumbent upon him Ş.witness)to see that all the proper papers should be re moved. - Robert Chisholm says that h e

was the consta ble called upon to attend the messengers toMr. Wilkes; that itwas on the 30th o f April last,

a t

six o'clock in the morning, that h e

was called upon; that Mr.Wood came immediate

ly after Mr.Wilkes was carried away; that he

(this witness) heardMr. Wood give no kind o f

orders a t all; in short, that his opinion is ,

Mr. Wood only came to take care that the messen gers did nothing that was wrong o

r improper. Mr. Dunning asked this witness, whether

h e

then imagined, that Mr. Wood appeared there merely o

behalf o f

Mr.Wilkes, a s

his friend—he answered ‘not so neither.” This wit ness shuffled and prevaricated very much, and contradicted his own evidence more than once. Philip Carteret Webb, esq. says, that Mr. Wood was sent b

the secretaries, merely to

see that the messengers executed their war rants in due form and order; that he (this witness) was only once a

t Mr. Wilkes's, and then not more than half an hour; that he went because the secretary o

state was un easy, and anxious to know what was doing a

Mr. Wilkes's ; that he (this witness) was never

u p

stairs a t

Mr.Wilkes's ; that he had a con versation with lord Temple in the parlour. That he denies he had ever any keys o

Mr. Wilkes in his hands; that h

e verily believes

h e

had n o keys a t

a ll in his hands; but that if

h e

had any, they were his own and not Mr. Wilkes's. Upon being cross-examined by Mr. Dunning, Philip Carteret Webb then said, that upon recollection h

was absolutely certain, that h

e had n

o keys a t

that time in his hands. That Mr.Weston was desired by lord Halifax

to go, but that h e

excused himself o n ac

count o f

hisweak nerves, and il l

state o f

health,

and that upon his (Mr. Weston) declining it ,

Mr.Wood was desired b y

my lord togo, which

h e accordingly did.

Richard Watson says, that h e

is a king's messenger, that h

was a tMr.Wilkes's on the

30th o f April last, that Mr.Wood was there,

and did nothing a t

a ll

a s

this witness observed,

but only gave them directions how to act. The Solicitor General observed, when Balff and Kearsley's evidence were set aside, that h e

placed little dependance o n

their evidence, a s

to the proof o f

Mr.Wilkes being the author o f

N°, 45, and indeed he said it was not very ma terial, for that the letter from Mr. Wilkes to Balff the printer which had been read, see page 26, and which h

then held in his hand, was conclusive evidence against him. Norton ex patiated ſong upon the circumstance o

this letter: h

observed that it was a lucky circum stance for them that Nº. 4

was the only num ber o

the North Briton which was printed o n

two sheets o fpaper, that it was the only num

ber that had a letter a t

the end of it ,

with the proposals following. He enlarged very fully

o n

a ll

these corresponding circumstances. L. C. J. Pratt asked for the letter which was enclosed, that h

e might compare it with the letter a

the end o f

the North Briton, Nº. 45. But the Solicitor General answered, he had

it not. Serjeant Glynn in his reply observed, that the manner o

defence that had been set u p

would necessarily make his reply longer than

it otherwise would have been. What he had

to remark he should divide under two heads,

1st, a s

to the defence which had been set u p

o f

1165) Wilkes p, Wood. A. D. 1763. [1166

not guilty; and 2dly, make observations on the special justification that had been pleaded. The evidence proved, uncontroverted, that Mr. Wood was the prime actor in the whole affair. He then observed that the three wit messes on the side of the defendant gave dif ferent evidences of the business Mr. Wood came about: Mr. Philip Carteret Webb's ac count was quite inconsistent: was it possible to suppose that aman ofMr.Wood's character and known abilities should be sent only with a -message that any menial servant could have delivered as well ; and that he should have nothing else to do with the affair. He then observed that a

the witnesses called to oppose the evidence o

their side were a ll parties, and

against whom prosecutions o f a like nature

were a t present depending. He then went

upon the point o f justification, and observed,

that a s

to Mr. Wilkes being the author o f

N° 45, they had totally failed in any kind o f

proof whatsoever; o r if they had produced

the appearance o f a proof, it was quite aside to

the present question, and to which h e

should not a

t any event have made any reply, a s

there was a

t present depending a prosecution, a s

that particular point, in his defence o f

which

h e

made n o

doubt h e

should b e

able fully to

prove, that Mr.Wilkes was not the author.— That Mr. Wilkes could not be supposed o

even suspected o f any design against the pre

sent establishment; that h e

was educated in

and had always adoptedWhig principles; that he was known to b

attached to and to have

the highest opinion o f

the present prince o n

the throne, which h e

had often and upon man occasions declared ; and his conduct had al ways been answerable to these declarations. When crimes have been exaggerated, and so

much declamation made use of as there has been o

the present occasion, one would natu rally have expected that some proof would have followed; but that in reality could never have been the case, a

the sole design was to

blacken Mr. Wilkes's character, without any foundation in fact. He then observed that va. rious hands were commonly employed inmost Periodical works; that Mr. Wilkes was not ‘lenied to b

the author o f

some o f

the North Britons; but that itwas not likely h

was the author o

f N°45, and that indeed the republica tion o

the work in volumes, in which was N° #5, so far from being a presumption against him, certainly affords the strongest reason to

think h e

was not the author; for if he had been s

o ,

it is no t

likely h e

would have been *ncerned in a publication, whilst a criminal Process was depending. He then observed a

tº the warrant, that it was destitute o f

those things necessary to make it legal; that a pre You information was always necessary. That

th e

defendants had nothing to entitle them to a

Verdict; that the evidence they had se t

u p

* Perfectly declamatory and unfair: possi

lyMr. Solicitor General's office, might d e

"aud from him what h e

had said ; but that h e

*** well satisfied, from that gentleman's known

good character and great abilities, that h e

would have refused to plead in a cause o f a

similar nature, which he was not forced to d o

e r

officio. He was satisfied the jury would not view Mr.Wilkes as not entitled to a verdict, because loaded with calumny : that the case was a wound given to the constitution, and

demanded damages accordingly : that Mr. Wilkes's papers had undergone the inspection

o f very improper persons, to examine hi spri

vate concerns, and called for an increase of damages o

that score. The evidence brought

o f

precedents o f

these kind o f

warrants only shew, how easy things may creep into our constitution, subversive o

it s very founda

tion. He then closed with telling, the jury

h e

made n o

doubt but they would find a ver. dict fo

the plaintiff, with large and exemplary damages.

The Lord Chief Justice then summed u p

the evidence o

the whole, and observed it was an action o

trespass, towhich the defendant had pleaded first Not Guilty, and then a special justification. He then went through the par ticulars relating to the justification, the king's speech, the libel N° 45. Information given, that such a libel was pub lished,

Lord Halifax granting a warrant; mes sengers entering Mr. Wilkes house; Mr. Wood directed to g

o thither only with ames

sage, and remaining altogether inactive in the affair.

If the jury should be of opinion, that every step was properly taken a

s represented in the justification, and should esteem it fully proved, they must find a verdict for the defendant. But if on the other hand they should view Mr. Wood a

s aparty in the affair, theymust find a

verdict for the plaintiff, with damages. This was a general direction his lordship gave the jury, and he then went into the particulars o f

the evidence. The chief part o f

the justifica tion, h

e observed, consisted in proving Mr. Wilkes the author, and the evidence given, together with the letters to Kearsley, plainly shew, thatMr.Wilkes was generally so. Then

a s

toN° 45, the evidence was o f

two sorts, first

a letter to fix it upon him, and the other gene ral: as to the proof o

the republication o f

the North Britons given b

Currie, supposing it o f

itself sufficient, o f

which there was a doubt, it

did not extend to the present case, to justify a

warrant issued several weeks previous to that period. As to the letter, the gentlemen must take that out with them, together with the North Briton, N° 45, and allow a

the weight

to the circumstance they think it will admit of.

If upon the whole they should esteem Mr. Wilkes to b

the author and publisher, the jus tification would b

e fully proved. But that, to

d o this, it was essentially necessary to have

the enclosed paper in the letter to Balff, as, without that, all the rest was but inference,

and not the proof positive which the law re quired. A

s toMr. Wood, h e

was described o n

1167] 3GEORGE III. |Case ofGeneral Warrants— [1168 one side as very active in the affair, and on the other sile as quite inoffensive. Aiders and abettors are always esteemed parties; but if a person present remains only a spectator, he cannot be affected. The evidence on the one

side had been positive, and on the other side only negative. Mr.Wood might have said and done as represented on the one side, when the evidences on the other side were not present: if upon the whole they should be of opinion, that Mr. Wood was active in the affair, they must find a verdict for the plaintiff with da mages. His lordship then went upon the war rant, which he declared was a point of the greatest consequence he had ever met with in his whole practice. The defendants claimed a right, under precedents, to force persons' houses, break open escrutores, seize their papers, &c. upon a general warrant, where no inventory is made of the things thus taken away, and where no offenders' names are speci fied in the warrant, and therefore adiscretionary power given to messengers to search wherever their suspicions may chance to fall. If such a power is truly invested in a secretary of state, and he can delegate this power, it certainly may affect the person and property of every man in this kingdom, and is totally subversive of the liberty of the subject. And as for the precedents, will that be esteemed law in a secretary of state which is not law in any other magistrate of this king dom? If they should be found to be legal, they are certainly of the most dangerous conse uences; ifnot legal, must aggravate damages. iotwithstanding what Mr. Solicitor General has said, I have formerly delivered it as my opinion on another occasion, and I still continue of the same mind, that a jury have it in their power to give damages fo

more than the in

jury received. Damages are designed not only a

s a satisfaction to the injured person, but

likewise a s a punishment to the guilty, to deter

from any such proceeding for the future, and

a s a proof o f

the detestation o f

the jury to the action itself.”

As to the proof o f

what papers were taken away, the plaintiff could have n

account o f

them ; and those who were able to have given

a n

account (which might have been a n

extenua tion o

their guilt) have produced none. It

lays upon the jury to allow what weight the think proper to that part o

the evidence. It

is my opinion the office precedents, which had been produced since the Revolution, are n

o jus tification o

f a practice in itself illegal, and con

trary to the fundamental principles o f

the con stitution ; though its having been the constant ractice o f

the office, might fairly b e pleaded

in mitigation o fdamages.t

* Vita reipublicae pax, et animus libertas, et

libertatis, firmissimum propugnaculum sua cuique domus legibus munita. Lofft.

t Ut poena ad paucos, metus adomnes per tingat.

Indicandum est legibus non exemplis. Lofft.

He then told the jury they had a very mate rial affair to determine upon, and recommended

it to them to b eparticularly cautious in bringing

in their verdict. Observed, that if the jury found Mr. Wilkes the author o

r publisher o f

N° 45, it would b e filed, and stand upon record

in the court o f Common-Pleas, and of course

b e produced a s

[...". upon the criminal cause

depending, in bar o f any future more ample

discussion o f

that matter on both sides; that

o n

the other side they should b e equally careful

to d o justice, according to the evidence; h e

therefore left it to their consideration.

The Jury, after withdrawing for near half an

hour, returned, and found a general verdict upon both issues for the plaintiff, with a thou sand pounds damages.

After the Verdictwas recorded, the Solicitor General offered to prefer a Bill o

f Exceptions, which the Lord Chief Justice refused to accept, saying it was out o

time.

The Court sat at nine o'clock in the morn ing, and the Verdict was brought in a

t twenty minutes past eleven o'clock a

t night.

It appears, that it was usual in the com missions o

f governors o

the American pro vinces to insert a clause referring to such far ther powers, instructions and authorities, as

should a t any time thereafter b e granted o rap

pointed to such governors under the king's signet and sign manual, and occasionally so to

grant to such governors powers which had not been specified in their commissions.

The learned and constitutional author of the

“Canadian Freeholder,’ (Dialogue 2d, p .

242

after animadverting o n

this practice, observes:

“The dangers, attending the abuse of the great seal, make it difficult for the crown to do

illegal acts under that sanction: because the lord chancellor, from his knowledge o

f law

and history, his habits o f examining matters o f

state with care and caution, and surveying a ll

their relations and consequences, will not easily

b e brought to use the great seal for such pur

poses. But the case is otherwise with respect

to the king's signet. The instruments exe cuted under the king's signet are countersigned

b y

the king's secretaries o f

state, without ever undergoing the lord chancellor’s examination,

o r

that o f

the privy council, o r

even o f

the attorney-general, o

r any other person who, from his education and station in life, may b

supposed to b e acquainted with the law. For as

to the secretaries o f state, they are usually

men o f high rank, born to titles and great es

tates, and bred in habits o f

ease and luxury, and but little acquainted, o

inclined to become acquainted, with so dry a subject a

the law, Persons o

this description, when they are placed in stations o

f authority, are muchmore likely to advise their sovereign to d

acts o f a n

irregular, o r

doubtful nature, without inquiring

1169) Wilkes v. Wood, A. D. 1763. [1170

how fa r

the law allows o f them, than a learned

andgrave lord chancellor, if it were but through mere ignorance, and though their intentions were very pure: but it often happens that to

this ignorance o f

the law they add a contempt for it

and a disposition to disregard it s restraints,

and overleap the limits it prescribes to their au thority, which they are apt to consider a

narrow pedantic rules which it is below their dignity to submit t

o ,

and, like Achilles in the character given o

f him b

Horace, “Jura ne

* gant sibi nata, nihil non arrogant armis.” They are therefore fond o

the doctrines o f

* reason o f

state, and state necessity, and the†. ofproviding for great emergenciesand extraordinary cases, without a discretion ary power in the crown to proceed sometimes

b y

uncommon methods not agreeable to the known forms o

f law,’ and the like dangerous and detestable positions, which have ever been the pretence and foundation for arbitrary power.I do not mean that all secretaries of state are

o f

this way o f thinking; fo r

undoubtedly some of those ministers have been men of a different character: but there have been, a

s I believe,

enough o f

that disposition to warrant me in

saying that it is the general spirit and com plexion o

the office. Nor would it b e

difficult

to find proofs o f

this extra-legal, o r

rather supra-legal, disposition in the powers they have assumed to themselves without any clear war rant o

law for so doing, and in the manner they have exercised those powers thus unwar rantably assumed : o

which I will mention to

you one remarkable instance, which, in the case o

the celebrated Mr. Wilkes, some years ago engaged the attention o

a ll England.

That gentleman had written, (or I should ra ther say, was supposed to have written; for it

was never proved upon him ; ) a political paper

called the North Briton, N° 45, in the month of April, 1763, soon after the conclusion of the late definitive treaty o

peace, b y

which this province o

Canada was ceded to the crown o f

Great Britain, in which paper there was a pas sage that gave offence to the Court, and was considered a

s in a high degree seditious. Upon

this a resolution was taken b y

the king's mi nisters o

state to arrest Mr. Wilkes, and pro secute him in the court o

f King's-bench for writing and publishing the said seditious paper,

o r libel; and he was accordingly arrested, and

all his papers o f every kind were seized, b y

virtue o f a warrant issued to one o f

the king's messengers b

the late earl o f Halifax, who

was a t

that time one o f

his majesty’s secre taries of state. And this warrant was agene ral warrant, which did notmention Mr.Wilkes's name, but empowered the messenger to arrest the persons (whoever they might be) who had been concerned in writing and publishing the said seditious paper, called the North Briton, N° 45. This omission of Mr. Wilkes's name made the warrant utterly illegal, because it re quired the king's messenger (who was a mere ministerial officer, o

rather who acted a s

such)

to do that which was the business of a judicial

officer, o r magistrate, that is ,

to exercise a n

act o f judgment o f a n high nature b y

deter mining who were, and who were not concerned

in the commission o f

the offence in question. This was an act o

f judgment o f so important a

kind that even amagistrate ought not, accord ing to the maxims o

the English law, to

have ventured to d o it without having received

a n

information upon oath from some credible witness, that such o

such a person had com mitted the offence in question, to b

e a ground

for his ordering him to b e arrested; because,

ifmagistrates had a power of arresting men without such previous information, and merely upon their own suspicions, o

r pretended sus picions, they might cause any person how ine nocent soever, to b

thrown into prison when ever they thought fit. And much less cau a

magistrate delegate such a power o f

determin ing who is the person that has committed a

particular offence, to a mere ministerial officer

o f justice, such as the king'smessenger, which

is done whenever a general warrant is issued. This general warrant therefore issued b

lord Halifax was clearly illegal, and consequently the arrest and imprisonment o

Mr.Wilkes in

pursuance o f itwere illegal likewise, and be

came a just ground for a n

action a t

law a t

the

suit o f

Mr. Wilkes against lord Halifax, the secretary o

f state, for a false, o rwrongful im

prisonment o f

him: and Mr.Wilkes did after wards accordingly bring such a

action against him in the court o

Common Pleas in England,

and did recover, b y

the verdict o f a jury, a large

sum o fmoney a s a compensation for the damage

h e

had wrongfully sustained b y

such imprison ment. Itmust nevertheless be acknowledged,

in justice to the late lord Halifax, that, though

h e

issued the said general warrant, h e

was not incited to d

so b y

the haughty spirit which

I have been just now describing as too apt to influence the great men who fi ll

those offices,

but was himself rather inclined, (from his own natural good sense, and, a s

we may suppose,

the moderation o f

his temper,) to insert Mr. Wilkes's name in the warrant, but was over persuaded to the contrary b

Mr. Philip Car teret Webb, who was a

that time solicitor to

the treasury, and who urged him to make the warrant general, because, h

e said, it had been the coustant usage o

former secretaries o f

state

to frame their warrants in that manner, a s in

deed h e

afterwards proved to the world that it

had been, b y

publishing a collection o f

war rants issued b

different secretaries o f

state

o n

various occasions in almost every reign

for the preceding hundred years, o r

from the year 1662, ifmymemory does not deceive me,

o f

which the greater part were drawn u p

that vague and general manner. This may, perhaps, b

sufficient to exculpate the late lord Halifax; but it serves strongly to prove the violent spirit which has usually prevailed in the persons who have held the office o

f secretary

o f

state, since itshews that for a hundred years together they have taken upon them to act, in

the business o f arresting state offenders, in a

WOL, XIX. - 4 F

1171] 5 GEORGE III. [1172Case ofGeneral Warrants— manner that bids open defiance to the first rinciples of law and justice. And this they}.done too,without ever havingbeen clearly invested by any statute of the kingdom, with any power of arresting men at all, even by warrants that name, or describe exactly, the persons who are to be arrested by them, and that are grounded upon previous informations of credible witnesses upon oath ; and certainly without having any such authority by virtue of the old common law, or general usage of Eng land from time immemorial, because the office of secretary of state itself has not existed long enough for that purpose, being no older than the reign ofHenry the 8th, which began in the year 1509, whereas, in order to be possessed of such an authority by ancient custom from time immemorial, it ought to have been pos sessed of it before the time of king Richard the 1st, or about the year 1189. But the truth

is ,

that the king's secretaries o f

state are his clerks, o

r letter-writers, whose business it is to

make known his majesty's pleasure, to his ambassadors in foreign courts, o

r to ambassa

dors o f foreign courts a t

hismajesty's court, o r

to his majesty's subjects in his own dominions on various occasions, but are not, or, a

t least,

were not originally, his majesty's magistrates,

o r

the delegates o f

his judicial power for the Purpose o

f adminstering justice in his name and behalf in any respect, and therefore ought

not to arrest state offenders, anymore than any

other offenders, o r any more than they ought

to try them for their offences and condemn them to punishment a

s is done b y

real magis frates. For the arresting, trying, and con demningmen for offences against the laws are,

a ll

o f them, branches o f

the judicial power o f

the crown, and ought therefore to b e

exercised only b

the knownmagistrates o f

the kingdom,

tº wit, the judges and justices o f Oyer and

Terminer, and justices o f

the peace, who are regularly invested with competent authority for that purpose b

commissions under the great seal. And, a

to the king's messengers, they are not the proper ministerial officers o

justice, like sheriffs and constables, but are only (as their name imports) servants kept in the king's pay fo

the purpose o f carrying mes

sages for him with fidelity and expedition, either within the kingdom o

r without, as, for instance, to carry dispatches to his majesty's ambassailors in foreign countries: so that it

seems doubtful whether even a legal warrant

to arrest a man, issued b y a known magistrate,

a s a justice o f

the peace o r a judge o f

the Court o

f King's-bench, can b e legally executed

b y

one o f

these messengers, unless it b e

those cases, (i f

there are such,) in which it

may be executed b y

any person whatsoever a s

well a s b y a sheriff o r constable, o r

other known ministerial officer o f justice. You see therefore that there is a threefold irregularity grown u

in the secretary o f

state's office with respect to this practice o

arresting men for state-ºffences. In the first place they have erected themselves into judicial officers, o

magistrates, for this purpose; in the second place they have made use o

f king's messengers, instead o

f sheriffs, o r constables, o r

other

known ministerial officers o f justice, to execute

their warrants; and in the third place they have framed their warrants in a general man ner, without naming the particular persons theymeant to have arrested, and cóbfining the warrants to them only, but leaving a liberty to

the messengers, who are to execute the war rants, to arrest any persons whom they, the messengers, shall think, o

r . that they think,to have been guilty of the offences in question. These are strange licenses that have crept into the practice o

the secretary o f

state's office,

and they sufficiently shew the violent spirit

that has prevailed in it.”

For the evidence which Mr. Philip Carteret Webb gave in this Case, a

indictment forper jury was instituted against him; o

the pro ceedings upon which my excellent friend, Mr. Baron Maseres, has furnished mewith the fol lowing Note taken b

himself:

Easter Term, May 10, 1764. A Motion was made in the King’s-bench

to quash a n

indictment for perjury, against Mr. Webb, the solicitor o

the Treasury, upon account o

it s insufficiency. The case was as

follows. In the action o f trespass brought by

Mr.Wilkes against Mr. Wood, the under se cretary o

state, for forcibly entering his house and seizing his papers, Mr. Beardmore had been a principal witness o

n behalf o

Mr. Wilkes to prove the trespass; and in giving his evidence, h e

had said that Mr. Webb was pre sent there aiding and assisting in seizing Mr. Wilkes's papers, and that h e

(Beardmore) had seen him (Webb) with a key in his hand. Afterwards Mr. Webb was examined as awit ness o

behalf o f

the defendant Mr. Wood; and amongst other things h

then declared,

with a particular reference toMr. Beardmore's evidence above-mentioned, that he never had

had a key a t

a ll

o f any kind, or belonging to

any person, in his hand o n

that occasion, not withstanding what that man, meaning Beard more, had sworn. This assertion o

Mr. Webb's that h

had n o key in his hand o n

that occasion was intended to b

the subject o f

an indictment o

f perjury. And accordingly a t

the Epiphany general sessions o f

the peace a t

Hicks's-hall, about Jan. 7 ,

1764; a bill o f

indictment was preferred against him, for wilful and corrupt perjury, in swearing that h

had n o

key in his hand, and this indictment was supported b

four witnesses whose names were indorsed upon the back o

f it ,

and was found by

the grand jury. But soon after the finding

o f

this indictment, the counsel for the prose cutor of it took notice that itwas not accurate

ly drawn, the person who drew it (who was Mr. Wallis) having barely stated the words

1173] Wilkes v. Wood. A. D. 1763. [1174 sworn byMr.Webb, without sufficiently sett ing forth that they had a material relation to the issue in the cause inwhich they were spoken, which might and ought to have been done by stating that Mr. Beardmore was a material witness in the cause, that he had sworn that he had seen Webb with a key of Mr. Wilkes's drawers in his hand, and thatWebb was exa mined after Beardmore, and swore, with apar ticular reference to Beardmore's evidence, and with a view to discredit the whole of his testi mony and render it of no weight with the jury, that he had no key at a

ll in his hand, notwith

standing what that man, Beardmore, had sworn. The counsel for the prosecution having ob served this defect in the indictment, neglected

to take out process upon it ,

intending to pre fer a more correct indictment at the next ses sions o

the peace, which they accordingly did refer, and the grand jury found it

AndMr. ebb had, probably for the same reason, hur ried o

the process upon the first indictment a s

fast a s possible, and endeavoured to bring it to

a trial, in hopes to forestall and prevent any proceedings against him upon the second and more accurate indictment. And as the time

for trial upon the first indictment was now appointed, the counsel for the prosecution this day moved the Court to quash the first in dictment upon the ground o

the fore-mentioned insufficiency, to prevent the trial being had upon it

and offered to proceed with a ll expe

dition to trial upon the second indictment. And the Court, after a good many difficulties, did grant the motion, and ordered the first indict ment to b

e quashed, upon condition that the second indictment should stand in the place

o f

the first to a ll

intents and purposes, so

that it should b e

tried a t

the same time, and by the same special jury that were already struck to try the first indictment. [In relation

to this, see Perry's Case, A. D .

1793.] They said unanimously, that a motion to quash a

n in dictmentmade b

the prosecutor o f

the indict ment was b

n o

means a motion o f course;

for that, if itwere, it would be in the power of

a prosecutor purposely to make his indictments defective in some small particular, and then to

move to quash them, and prefer new ones twenty times over, and thereby to keep the person prosecuted in continual suspense and under the terror o

f a prosecution without ever

bringing him to a trial, which would b e a very

great oppression; that therefore the Court would always exercise their discretion in re lation to it

and either quash, o r

refuse to quash

the indictment a t

the motion o f

the prosecutor

a s they should think proper upon consideration

of the circumstances. A case much relied on

in thismotion b y

the counsel for the prosecu tionwas that o f

the King and Snow, in Foster's Reports o f

the Crown Law ; and Judge Wil mot mentioned on the other side, to shew that this was not a motion o f course, the Case o f

the King and Moore in Strange's Reports.

May 21, Mr.Webb was tried on the second

indictment a t

the sittings a t

Westminster be fore lord Mansfield. And it was proved o

the art of the crown that Mr. Webb had had a

e y in his hand in Mr. Wilkes's house on the

foresaid occasion. This was clearly proved by three o

four credible witnesses, who all swore positively to it; and some of them said that one o

the persons then present inMr.Wilkes's house had observed it to the rest a

the very time, and desired them to take notice o

f it that

they might remember and testify it clearly if

occasion should require it ;

and that h e

had used some such words a

these: “I suppose if

any action should b e brought against Mr.

Wood o r

Mr. Webb for this trespass, they will pretend that they had n

hand in it ,

but were mere lookers on, and that the messengers were the only actors in it

. Therefore, pray, gentlemen, observe and remember that Mr.Webb had a

key in his hand;” meaning that Mr. Webb had either been opening o

was going to opeu, Mr. Wilkes's study with it

, it being, a s they

a ll declared, a large key o f

the size o f a cham

ber-key. This fact therefore o f

Mr. Webb's having had a key in his hand o

that occasion seems to have been sufficiently proved, though the defendant afterwards brought three o

four persons, king's messengers and others, who were present a

tMr. Wilkes's house on that oc casion, who swore that they did not see any key in Mr. Webb's hand, though they were there the whole time, and probably must have seen in it

But in the hurry o f

that transac tion it is possible they might not observe it; and therefore their evidence can never b

e sup posed to countervail and destroy the clear and positive and circumstantial testimony o

thewit nesses o

the affirmative side o f

the question.

The evidence concerning Mr. Webb'sswear ing a t

the former trial was as follows: it was proved that Mr. Beardmore had been the last witness examined on the side of Wilkes in that trial; and that, after relating many important particulars relating to the trespass committed

inMr. Wilkes's house, he had said that he saw Mr. Webb there with a key in his hand. That afterwards Mr. Webb, voluntarily offering him self to be a witness o

the side o f

Mr. Wood, had sworn a

follows: *

“One of the witnesses has sworn that he saw me with a key in my hand. Now this is

absolutely false; for I am positive I had no

key inmy hand any part o f

the time.”...That upon this Mr. Dunning, one o

Mr. Wilkes's counsel, had bid Mr. Webb reflect seriously on what h

was swearing ; for that they were well assured that h

had been seen with a key

in his hand. That thereupon Mr.Webb some what softened his denial, and said, “If I had

a key in my hand, I am sure it was not Mr. Wilkes's key; but I am almost sure I had no

key.” That upon this Mr. Dunning had said that that answer was not sufficiently direct,

and that h e required a direct and positive an

swer from him whether h e

had a key in his hand o

that occasion o r

not. That upon this

1175] 3GEORGE III. ' [1176Case ofGeneral Warrants. requisition of Mr. Dunning, Mr. Webb had finally said, “Upon recollection I am positive that I had no key in my hand.” . And then after a little pause added, “And it is impossi ble that I could have had one, because I did not go upstairs.”

This was the evidence whichMr.Webb was clearly proved to have delivered at the former trial. But Mr. Webb's counsel and lordMans field observing to the jury that Mr.Webb's de nial of his having had i. was not an abso lute and peremptory dº. which they con tended appeared from his intermixing it with the last-mentioned reasoning upon it

namely that he could not have had it because he did

not g o

up stairs; lord Mansfield representing

to them likewise that Mr.Webb must a ll along

have meant to deny only his having a key o f

Mr. Wilkes's in his hand, which he inferred also from the same words of Mr.Webbabout his not going u

stairs; lord Mansfield also in forming the jury that unless the point inwhich

amaterial witness in a cause is contradicted b y

another witness, who swears falsely in so con tradicting him, be a point so material to the issue in question, (though it need not b

the issue itself) that if it be false, the issue must remain totally destitute o

evidence, the per jury so committed b

the second witness, even though it were wilful, is not a crime punishable by the law,” butonly a heinous moral sin; and then observing to them that the point in which Mr. Webb contradicted Mr. Beardmore was not a point so materially connected with the issue in that trial: and lastly informing them that unless a man swore to a falsehood know ing it to be false, he was not guilty o

wilful and corrupt perjury ; and observing likewise that there was some room to doubt whether what Mr. Webb had sworn was in itself false

o r no, since there were three o r

four witnesses

* “Perjury,” says lord Coke, 3 Inst. 164,

“ is a crime committed where a lawful oath is

ministered b y

any that hath authority to a n

person in any judicial proceeding whosweareth absolutely and falsely in a matter material to

the issue o r

cause in question b y

their own act

o r

b y

the subornation o f

others.” He then proceeds to “peruse the branches o

this de scription.” See also 4 Blackst. Comm. book

4 , p .

137.

that had sworn that they had been present a t

Mr. Wilkes's all the time, and had seen Mr. Webb there, but had not seen him with a key

in his hand: the jury, after a consultation o f

a n

hour and ten minutes, (during which time lord Mansfield, growing impatient, sent a mes sage to them b

one o f

the officers of the court to desire them to hasten their verdict) brought in their verdict that he was Not Guilty.

I apprehend that the following [..."; id the celebrated “Letter concerning Libels, War rants, Seizure o

f Papers,’ &c. relates to some thing which had been said b

lordMansfield in

the House o f

Lords in relation;to the case o f

Mr.Webb.

“I will ask the Attorney what opinion he

would have o f

the veracity o f a judge, who,

having tried a n

old gentleman forº:where there were four positive witnesses for the prosecutor to the words being spoken, which were charged and which were probable

in the nature o f

the case, and four witnesses for the defendant, in short his followers, who swore that they were very near their master, and must have heard the words had they been spoken, and they heard them not ; and that the judge, thereupon found it necessary to

labour to the jury the character and fortune o f

the defendant, and the utter improbability o f

his having denied upon oath his having uttered the words, had h

e really uttered them; and that after a good deal o

f hesitation and doubt,

the jury at last acquitted the defendant; I say, after such a

n acquittal, what would one think

o f a judge who should in a public assembly

wantonly and unnecessarily mention this case, and declare there was not the least colour

o r pretence for the prosecution? What theAt torney may say, I know not; but I am sure, for my own part, I weuld never afterwards give such judge credit fo

r a fact h e

should ad vance upon his own testimony only, however glad Imight b

e to hear his reasoning upon any

subject whatever. For, ingenuity is one.and simple testimony another, and ‘plain truth,

(I take it )

“needs n o

flowers o fspeech.” [See

Pope's limitation o f Horace, book 1 ,

Ep. 6 .

“ Plain truth, dear Murray, needs no flowers

speech.”]

Front Cover
Title Page
Table of Contents
Section 1 (Page 1)
Section 2 (Page 261)
Section 3 (Page 275)
Section 4 (Page 535)
Section 5 (Page 693)
Section 6 (Page 733)
Section 7 (Page 815)
Section 8 (Page 845)
Section 9 (Page 885)
Section 10 (Page 981)
Section 11 (Page 1001)
Section 12 (Page 1075)
Section 13 (Page 1137)
Section 14 (Page 1153)
Section 15 (Page 1177)
Section 16 (Page 1235)
Section 17 (Page 1341)