a General Warrant for apprehending and seizing the authors, printers, and publishers, of a seditious libel, together with their papers, is not warranted by law: and also the proceedings of the House of the 17th of February last, when the House resumed the adjourned debate upon the said proposed question, were read. Then sir William moved, "That a General Warrant for apprehending the authors, printers, or publishers, of a libel, together with their papers, is not warranted by law, and is an high violation of the liberty of the subject."

It was supported with the same Arguments as before, with some retort upon the administration, that the question was not now sub judice, as in the action brought by Mr. Wilkes against lord Halifax; for Mr. Wilkes being outlawed, that action could not be tried. The ministry, however, still insisted that the question was sub judice: particularly in the cases between the printers and the messengers, where bills of exceptions had been brought, and which were not yet argued. There was fallacy in this argument, as those bills of exceptions did not touch the legality of the warrant. It is true, the court of King'sbench did, several months afterwards, when some of those bills of exceptions came to be argued, solemnly condemn the warrant; but that question was not strictly before them, and they need not have done it, had they not been so inclined. The ministry likewise insisted, that the delay in obtaining this determination in the courts below, was entirely owing to the solicitor for the prosecutors; and they dwelt particularly upon the impropriety, as they called it, of one House of Parliament only, coming to a resolution upon a point of law; that such resolution was no security to liberty, that it was ineffectual as to the purpose intended, and that it would be nugatory in a pleading in Westminster-hall, the judges there being bound to follow the law as made by the three estates, and not the sentiments of the House of Commons alone.

In the course of the Debate, Dr. Hay narrowed the question, by proposing an Amendment to the question, by prefixing thereto these words: "That in the particular case of libels, and of no other crime, it is proper and necessary to fix, by a vote of this House only, what ought to be deemed the law in respect of general warrants; and for that purpose, at the time

when the determination of the legality of such warrants, in the instance of a most seditious and treasonable libel, is actually depending before the courts of law, for this House to declare."

An Amendment was proposed to be made to the said proposed Amendment, by leaving out the words " and of no other crime." And the said Amendment was, upon the question put thereupon, agreed to by the House.

Then the question being put, That the said Amendment, so amended, be prefixed to the question first proposed: the House divided: Yeas 224; Noes 185. So it was resolved in the affirmative.

Then the main question, so amended, being put, "That, in the particular case of libels, it is proper and necessary to fix, by a vote of this House only, what ought to be deemed the law in respect of general warrants; and for that purpose, at the time when the determination of the legality of such warrants, in the instance of a most seditious and treasonable libel, is actually depending before the courts of law, for this House to declare, that a General Warrant for apprehending the authors, printers, or publishers of a libel, together with their papers, is not warranted by law, and is an high violation of the liberty of the subject;" it passed in the negative.

The decision, however, of this important question was not carried without a very long and warm Debate* concerning the nature of treason; the illegality of General Warrants in any case; the actual pendency, before the ordinary courts of justice, of a case similar to that upon which it was proposed the House should now pronounce; and, in fine, the propriety of the House's pronouncing, when it had itself allowed the existence of that circumstance; and as it was impossible, that it should hold out so long upon the arguments which before supported it, and the difference in the alteration was alone sufficient to give room to new ones, many new ones were made use of. For, as there was no law, totidem verbis, to determine any of these points, recourse was had to the spirit of the constitution. Parliamentary resolutions were brought against parliamentary

sation out of the House, and a hand-bill was circulated, in which an eminent lawyer was asserted to have said, I think it better to fall with the laws than to rise on the ruins of them."" Gentleman's Magazine, 1765, p. 94.

"This Debate caused a considerable sen

made public; that of this there had happened a most flagrant instance in the case of one of these persons, the apprehension of whom and of his papers had originally given rise to this debate; some letters of his, no way relative to the public, having transpired soon after the execution of the warrant against him and his papers.

That, great as the mischiefs might be, with which general warrants for seizing the persons and papers of those guilty of writing seditious, and even treasonable libels, must be attended to individuals, those attending general warrants against the printers and publishers of such libels, unless these libels carry something seditious or treasonable in the very title, or they have been legally declared such, must be still greater to the public, since in that case printers and publishers, to be safe, must read every thing that goes through their hands; and of course would print and publish very little; the consequence of which must be a suppression of the press; an evil more prejudicial to the public than almost any abuse of it can be; that such printers and publishers cannot be considered in as bad a light as talebearers, since it is impossible for a man to tell a thing without knowing what it is he tells, whereas no printer or publisher can be supposed to know what every thing is that he prints or publishes; and notwithstanding, by the laws of some of our wisest Saxon monarchs, the tale-bearer was to be kept in prison, only till he gave up his author, for that a printer or publisher of an offensive paper ought not to be seized and detained till he gave up the writer, was not in the least pretended by them.

That the cases, if any, in which it might be proper to endeavour to secure, by a general warrant, the persons, and by almost any warrant, the papers of those concerned in the writing, printing, and publishing of seditious, and what a minister might think proper to style treasonable libels, were so few, that they might be justly ranked amongst those very uncommon events, against which the legislature has not thought proper to make any provision; because the providing against all such uncommon events would swell the law to an intolerable degree; that, besides, it was almost impossible to imagine any case in which every evil, with which such practices could be attended, might not be seasonably enough remedied, and even prevented by the presentment of a grand jury; or, at worst, an information in the court of King's bench.

Such were the arguments now urged against ministers too freely attributing treason to libels, and their granting general warrants for seizing the persons and papers of the authors, printers, and publishers of seditious libels, and even such libels, as they might think proper to deem treasonable; and in both respects they must be allowed. to have great weight, considering how much more the scale preponderates at present towards the safety of the people than the grandeur of the prince. For there is great reason to think, that, in some periods of English history, the imputation not only of sedition, but even treason, might have stuck to the writings now stigmatized as such by the ministers, whose friends accordingly did not fail to make use of them.

There is, said they, in the statute called Westminster, chap. 24, a law against telling or publishing any false news or tales, whereby discord, or occasion of discord, or slander might grow between the king and his people, or the great men of the realm; and the so doing was reckoned sedition in the reign of that nursing mother of her people queen Elizabeth; and, as to the danger of hurting the reputation or fortune of innocent men, by encouraging an enquiry into the commitment of some offences, there is frequent mention made in the English records, of the king's sending orders to sheriffs or other magistrates to enquire into some particular sort of crime, then commonly committed within their district, and to seize and imprison the offenders; and at the time of issuing the general warrants that have given rise to this debate, what crime could be more common than that of telling or publishing false news and tales, whereby discord, or occasion of discord, or slander, might grow between the king and his people, and the great men of the realm?

That, in the case of offences not near so grievous, it has been an immemorial custom to disturb the peace of a whole country by that solemn alarm called hue and cry,' and thereby made it lawful for all inhabitants to stop, and all magistrates to enquire into the character of every stranger, for the sake of finding out one single delinquent.

That to question the legality of general warrants, would be impeaching the character of the highest and most respectable tribunal, next to the House of Lords, in the whole realm; a tribunal, whose judges for many years past, that general war

rants have been in use, have been allowed to be men of the soundest capacity and most unbiassed integrity; since it is not to be supposed, that they, who are always, even by the law, supposed to be of counsel for the prisoner, and cannot, therefore, but consider themselves as such, should overlook any flaw in an order to deprive a man of his liberty, though not taken notice of by the counsel of his own appointment; men, who have been not only so attentive to the spirit and letter of the law, as often to decide cases on motives never urged by the counsel of either plaintiff or defendant, but so watchful of the very shadow of it, as sometimes to dismiss causes for want of a scrupulous compliance with mere exterior forms.

That, besides, it could not but be supposed, that many of the counsel employed on these occasions were lovers of liberty and very able lawyers, and that the silence of such men is, alone, of great weight, in the opinion of a chief justice, whose capacity and integrity their adversaries themselves, they were sure, could not suspect; an Opinion solemnly delivered from the bench, and in that cause too, which originally gave rise to the present debate*. That, if a law, made at the revolution, in the reign of William 3, who is universally allowed to have been as jealous of the prerogative of the crown as was consistent with the security of his new acquired possession of it, required that warrants, granted during the suspension of the Habeas Corpus Act, for the detaining or apprehending of such persons as his majesty should suspect were conspiring against his person or government, should be signed by six of the privy council; the last act passed for the same purpose required, that such warrants should be signed, either by six of the privy council, or one of the secretaries of state, by which the high authority of that office, which so many persons affected to consider in a mean light, is, if not recognized, at least established, since it is thereby made equal to that of six members of the privy council, six men, whose persons, next to those of the royal family, are held most sacred, a bare at tempt upon their lives being felony with out benefit of the clergy.

That it must appear very extraordinary, if not ridiculous, that a House of Commons, which had made no law for the re

• Lord chief justice Pratt's Argument on delivering Mr. Wilkes from the Tower.

lief of the most innocent persons even in domestic life, closely confined and cruelly treated in private mad-houses, without any judicial proofs of insanity, and merely at the instigation of persons no way related to them, or only related to them enough to have an interest in their confinement and death, and could overlook so great an evil notwithstanding the flagrant proofs of its actual existence, should now take so much pains to declare illegal the comparatively most, mild detention of supposed offenders against the public, by orders of persons so high in dignity, and in the confidence of the prince, and even of the legis lature, as appears by the above law to make the opinion of one of them equal to that of six privy counsellors; men of such justice and humanity, that, in dismissing the persons confined in virtue of their warrants, they seldom or never failed to enquire of themselves, if they had received the full benefit of the ample allowance made for their support, and severely to resent any misapplication of it.

What the friends of the ministry might want in these arguments against the illegality of general warrants, &c. they made it up, perhaps, in those for the propriety of stating the question, as a question now depending before the ordinary courts of justice in Westminster-hall. They remarked, that, if the proceedings there against the secretaries of state met with any obstacle, it was entirely owing to the parties seeking redress; who, in an offence deemed even by the opposite party to be of a public nature, chose, from a principle of avarice, to be plaintiffs for themselves, rather than prosecutors for the public: and accordingly had recourse to a court established for the distribution of civil justice, merely because they saw that court give as damages to the plaintiffs, what, in a higher court established for the infliction of vindictive justice, would have been exacted as a fine to the public, though they could not but know, that, in the court to which they applied, their proceedings were liable to be stopt by privilege of peerage; that the giving of such heavy damages could not be deemed entirely the act of a jury independent of the bench, since, on a motion to have such damages reduced as exorbitant, they were confirmed by the bench, independent of a jury.

That, if any resolution was wanting, it seemed to be one for keeping distinct these departments of justice, and prevent

ing any court's giving as damages to plaintiffs, what had ever been considered as fines upon criminals; that, if this was to be done, the propriety of which they did not deny in many cases, where no justice could be expected without throwing some powerful temptation in the way of the plaintiff, as in cases of usury and smuggling, it ought to be by an act of the legislature, and not the determination of any particular tribunal, whose decisions in such cases must be considered by all sober men as little less arbitrary and unconstitutional than those of a Starchamber.

As to the propriety of the House's coming to any resolution upon this affair, when stated by the House itself as actually depending in the ordinary courts of justice, it was urged, that it was no more than what had been lately done in the case of Mr. Wilkes; when writings were voted libellous by the House, and he the author of them, and all without any proof upon oath, though at the very same time that gentleman was under a prosecution for them as libellous in the court of King'sbench; and consequently, both judges and jury might have been influenced by such resolution in their determinations concerning the nature of the offence and the person of the offender.

To this answer was made, that it was impossible for the House not to come to some resolution on that occasion, since the person accused was a member of it, and by claiming privilege as such, could not but be construed to have voluntarily submitted to the jurisdiction of the House; that this, besides, was a particular case, in which the House acted more like an inquest or grand jury, whose decision was not to influence the petty jury, than as a court of justice, whose decisions were to be final and conclusive, and only claimed that jurisdiction over its own members, which so many inferior bodies of men have been always allowed over theirs; whereas the proposed declaration against the legality of general warrants is very general in its tendency; so general, as, in some respects, to be liable to the same objections with the general warrants of secretaries of state, merely as such.*

Proceedings in the Commons on the Bill to vest the Isle of Man in the Crown.+] * See Annual Register, 1765, p. 27. +"It was found expedient for the prevention of frauds committed by smugglers, to

January 21. The Chancellor of the Exchequer presented to the House, "A Bill for more effectually preventing the mischiefs arising to the revenue and commerce of Great Britain and Ireland, from the illicit and clandestine trade to and from the Isle of Man ;" and the same was read the first time.

Feb. 13. A Petition of the most noble John duke of Athol, and Charlotte duchess of Athol, his wife, baroness Strange, was presented to the House, and read, setting forth,

"That the Isle of Man, with its dependencies, was originally granted by king Henry the 4th, by letters patent under the great seal of England, dated the 6th of April, in the 7th year of his reign, to sir John Stanley, under whom the petitioner, the duchess, claims by lineal descent, his heirs and assigns; that family disputes having arisen many years subsequent to the grant, which were determined by an amicable adjustment, in consequence of a large pecuniary consideration paid by William, earl of Derby, king James the 1st, in order to effectuate the accommodation, and to extinguish the claims of the contending parties, who had been satisfied, was graciously pleased to make a new grant and settlement of the island, with its appurtenances, by letters patent under the great seal of England, dated the 7th of July, in the 7th year of

annex the Isle of Man to the realm. This small territory formed a domain of a singular tenure; it was part of the crown, but not of giance of the king, but governed by its own the realm of England: it was under the allelaws and customs. In these respects it resembled Jersey and Guernsey; but in those islands the king appointed governors, and retained the jurisdiction of the admiralty; the superintendance of civil justice vested in the king in council, and he could prosecute a suit in his own name in any of the courts of Engand jurisdiction of those islands vested in the land; in a word, the prerogatives, royalties, crown, and the writs from the superior courts at Westminster were allowed to operate in them. But in the Isle of Man the king had no courts, no officers; and no suits arising there, whether at the instance of the party or of the crown, were determinable in England. It was even doubted if the great prerogative or mandatory writs, which issue to all places under subjection to the crown of England, would be valid there. This singular inheritance had been for nearly four centuries vested by parliamentary charter, in the family of the duke of Athol." Adolphus.