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House of Commons is mean enough to take part in his caprices. Lord North, who had so lately rewarded the Reverend Mr. Scot with the best living in the King's gift, for heaping invectives equally dull and virulent upon some of the most respectable characters in this kingdom, is now shameless enough to support a motion against the liberty of the press with the whole influence of the crown. [That their practice might be every way conformable to their principles, the House proceeded to advise the crown to publish a proclamation universally acknowledged to be illegal. Mr. Moreton publicly protested against it before it was issued; and Lord Mansfield, though not scrupulous to an extreme, speaks of it with horror. It is remarkable enough that the very men who advised the proclamation, and who hear it arraigned every day both within doors and without, are not daring enough to utter one word in its defence, nor have they ventured to take the least notice of Mr. Wilkes for discharging the persons apprehended under it.]

The pretended trial of the Lord Mayor and Mr. Oliver resembled the dark business of a Spanish inquisition, rather than the fair proceedings of an English court of judicature. These gentlemen, as magistrates, had nothing to regard but the obligation of their oaths, and the execution of the laws. If they were convinced that the Speaker's warrant was not a legal authority to the messenger, it necessarily followed that, when he was charged upon oath with a breach of the peace, they must hold him to bail. They had no option. Yet how have they been treated? Their judges had been partially summoned by treasury mandates, pressing attendance, and demanding a vote of condemnation. They were tried and condemned at midnight, without being heard by themselves or their counsel, on the only point on which their justification could possibly depend. In short, Sir, a question, strictly of jurisdiction, was referred to numbers, and carried like a common ministerial measure. Their next step was to force the Lord Mayor's clerk, by the terror of a prison, to erase the record of a judicial proceeding, held regularly before the chief magistrate of the city. Lord North himself made constitution could not be

the motion, and declared that the safe, until it was carried into effect. They then resolved that all prosecutions for the assault (which, though charged upon

oath, they call a pretended one) should be stopped. I wish that grave and sober men would consider, independently of the other questions before us, how far this particular prece dent may extend. If the House of Commons may interpose in a single instance, between the subject who complains and the laws which ought to protect, I see no reason why they may not, at any time, by their vote, stop the whole course of justice through the kingdom. Besides the injury done to the subject, their granting a noli prosequi is in effect an encroachment upon the royal prerogative*.

Many circumstances of insult have been mixed with these measures of violence. Their pretended lenity to the Lord Mayor, which he nobly refused to accept of, amounted only to an offer of the garrets of the House for the place of his confinement instead of the Tower; and, though it be of less moment, it is still worth observing, that the indignity offered to the city is aggravated by the time expressly chosen for imprisoning their chief magistrate. Not content with interrupting all city business, they fixed upon Easter, because it is the chief city festival, and found a contemptible gratification in putting a stop to the amusements usual at this season, and depriving a public charity of the customary collections, which they knew must be reduced to nothing by the absence of the Lord Mayor.

Nothing remained but to keep up a terror and alarm through the kingdom by appointing committees of inquiry. This double star-chamber was moved for long after midnight, and lists partially sent round by the messengers of the treasury. Where will these arbitrary, iniquitous proceedings end? The ministry, I doubt not, have a plan prepared, but it is such a one as they neither dare openly avow nor uniformly adhere to. One day they appoint committees of inquisition to sit de die

The following is a copy of the minutes of the House of Commons, of March 20, 1771, here referred to:

"That James Morgan, clerk of the Lord Mayor, do at the table expunge the minutes taken before the Lord Mayor, relative to the messenger of this House giving security for his appearance at the next general quarter-sessions of the peace; and he accordingly at the table expunged the same.

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Motion made, and question proposed,

"That no other prosecution, suit, or proceeding, be commenced, or carried on for, or on account of the said pretended assault, or false imprisonment. 'It passed in the affirmative."

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in diem; the next thing we hear is that the committees are adjourned, and the members of them dispersed into the country. After advising the King, very unnecessarily, to go to parliament, they come to him while his equipage is in waiting, contradict their own advice, and endeavour to stagger his resolution at the moment when he has most occasion for it. They alone are answerable for all the indignities heaped upon the King's person, since they could not but foresee that the people would take the earliest opportunity of resenting the imprisonment of their magistrates.

When the Princess of Wales was named in the House of Commons, where was that zeal which some people boast of for their royal master? The mother of their Sovereign was branded by name as the authoress of all our calamities, and the assertion passed without censure or contradiction.

Sir, I most truly lament the condition to which we are reduced, and the more so, because there is but one remedy for it, and that remedy has been repeatedly refused. A dissolution of the parliament would restore tranquillity to the people, and to the King the affections of his subjects; the present House of Commons have nothing to expect but contempt, detestation, and resistance. This violent state of things cannot long continue. Either the laws and constitution must be preserved by a dreadful appeal to the sword, or (what probably is intended by the present system of measures) the people will grow weary of their condition, and surrender everything into the King's hands, rather than submit to be trampled upon any longer by five hundred of their equals.

A WHIG*.

*The passages in this letter which are placed within brackets, are retranscribed by the author, and added as notes to his Letter 44, vol. i. p. 328, published in his own edition, under the signature of Junius, where the reader will still find them.

The messengers were indicted in defiance of the resolutions of the House of Commons, and true hills were found against them, but further proceedings were stopped by the Attorney-General entering a noli prosequi. As the arguments urged by Mr. Adair, who was of counsel for the printers, on showing cause against this measure, are extremely curious, and not generally known, we shall subjoin them for the information of the reader, and for the better elucidation of this and other letters upon the subject of this important dispute.

Mr. Adair. in pursuance of notice, attended the Attorney-General, Mr. De

LETTER XCVI.

For the Public Advertiser..

April 15, 1771.

MY LORD,

HENRICUS TO THE EARL OF SUFFOLK.

THE singularity of your late conduct seemed to claim some attention from the public, which you do not, I presume, think

Grey, on the 17th of May, 1771, and after the indictment and an affidavit of the defendant had been read, spoke as follows::

"It requires no arguments to show, that though the entering a noli prosequi on prosecutions at the suit of the King only is an undoubted prerogative of the crown, yet, like all other prerogatives, it is intended for the general good of the subject, and not for the hindrance or interruption of public justice.

"It is indeed a discretionary power, but it is to be exercised, not according to an arbitrary, but a sound and legal discretion. It is for this reason, Sir, that it is not left to the wanton caprice of a favourite, or the arbitrary will of a minister, to be executed at pleasure, but it is deposited as a public trust in the hands of the Attorney-General, that the exercise of it may be directed by his knowledge of the laws and constitution of the kingdom.

"Many reasons may be suggested why this power should be most sparingly exercised in cases of prosecution by indictment.

"Though the King's name is necessarily used as the general guardian of the laws, there is another party concerned in indictments, the injured party, who is for the most part the real, as the King is the nominal prose

cutor.

"The practice, too, of entering a noli prosequi on indictments is but of modern date.

"In the case of Goddard and Smith in the 6th Mod. 262, Holt, Chief Justice, said, 'He had known it thought very hard that the Attorney-General should enter noli prosequi upon indictments, and that began first to be practised in the latter end of King Charles the Second's reign; and he ordered precedents to be searched, if any were, in Mr. Attorney Palmer, or Nottingham's time;' and at another day he declared, that in all King Charles the First's time there was no precedent of a noli prosequi on an indictment.'

"I therefore submit to you, that (sitting here to determine upon the application of a power so recent in its commencement, and of which we are told by so respectable an authority, that it has been looked upon as a hardship in itself,) you will require the most cogent reasons to induce you to exert it upon this or any other occasion.

you have entirely escaped; but since by their silence they either think you superior to shame or below the dignity of

"Those reasons must arise either from the conduct of the prosecutor, the personal situation and circumstance of the defendant, or the subject-matter of the prosecution.

"I do not find from the affidavit of the defendant, which is the only information I have had of the grounds of his application to you, that he complains of any particular hardships or oppression, arising either from unnecessary delay, unusual rigour, or any other misconduct in the prosecutor: he must therefore expect the extraordinary interposition of the prerogative in his behalf, in this instance, either from something peculiarly favourable in his personal situation, which entitles him to the protection of the crown, or from the charge against him being totally groundless and unfit to be discussed in a court of justice.

"As to the first of these points, if we consider Mr. Whittam not being a magistrate's constable, or any other officer intrusted with the execution of the laws, but acting merely in a private capacity, as wantonly assaulting one of the King's subjects, in his own house, who was not even accused of any crime, and violently attempting to deprive him of his liberty; if, I say, we consider him in this point of view, he can hardly be thought a fit object of the royal favour and protection; but if we view him in the light in which he has thought proper to place himself by his own affidavit, he will be found, if possible, still less entitled to that exertion of prerogative for which he has applied. He tells you, Sir, that he is a messenger of the House of Commons; that in that character, and acting under the express orders and authority of that House, he did the fact with which he is charged in the indictment. Does he mean, Sir, that you should consider this as a reason for granting a noli prosequi? When was it heard before that an exertion of prerogative was necessary to support the authority and privileges of the House of Commons? When was that House known to sue to the servants of the crown to screen their officers from the laws, or protect them from the indignation of an inconsiderable printer?

"I believe when any of their privileges have been really invaded, they have never been found wanting either in power or inclination to support them; and I am satisfied that if the House were now sitting, Mr. Whittam would not have dared to make an application so manifestly tending to expose their privileges and authority to ridicule and contempt. But, Sir, I am persuaded that the honour and dignity of the House of Commons are safe in your hands, and that you will suffer no act to proceed from you that can throw even an oblique imputation upon them.

"If there is for these reasons nothing in Mr. Whittam's personal situation or circumstances which can entitle him to an extraordinary interposition in his favour, it remains only to be considered whether any motive can be suggested from the subject-matter of the prosecution to induce you to put a stop to it by an exertion of the royal prerogative.

"The charge set forth in the indictment, and not denied by the defendant's affidavit. is for assaulting and imprisoning the prosecutor, Mr. Miller. It will not be contended that there appears anything upon the face of the

VOL. II.

B B

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