revenge, I cannot help giving to them what I owe on this occasion, which, had I only considered the gratification of a

indictment oppressive, illegal, unfit to come before a court of justice, or which affords any motive whatsoever for granting the noli prosequi; the reason, therefore, if any, must arise from the matters set forth by the defendant's affidavit. The affidavit states, that the defendant is one of the messengers of the House of Commons; that the Speaker's warrant for apprehending the prosecutor was issued by order of the House, and that, in consequence thereof, the defendant, to whom the warrant was delivered, did make the arrest with which he is charged in the indictment, and that he used no violence in so doing, other than seizing Mr. Miller by the arm, as is usual in

arrests.

"I apprehend it is not incumbent upon me here to consider, as I submit it is not competent for you, Sir, to determine in this summary manner, whether the matters here set forth do or do not amount to a good defence, or legal justification. We are not now to try the cause; but you, Sir, I am confident, will not interpose the prerogative of the King to prevent our trying it in the regular course before the proper jurisdiction, unless the prosecution, as it now appears before you, is so clearly and manifestly groundless, and unfit for discussion in a court of law, that it would be an abuse and mockery of public justice to bring it to a trial. If the authority under which Mr. Whittam alleges himself to have acted was not competent to authorize the fact which he committed, or if that authority never was in fact delegated to him, in either of those cases the prosecution is well founded in law. If any doubt or question can be raised on either of these points, it is not so clearly groundless as to justify the putting a stop to it by prerogative before those questions are legally determined.

"It might well be questioned, whether the House of Commons has any power, by the laws or constitution of this kingdom, to authorize the issuing of such a warrant as that under colour of which Mr. Miller was apprehended.

"It might be said, and supported too by the greatest authorities, that they cannot, by any act of theirs singly, create any new power or privilege to themselves; that there was a time when they evidently neither possessed nor claimed any such power as that in question; and when the authority of an Act of Parliament was thought necessary to punish even so undeniable a breach of privilege as the assaulting the person of a member attending upon his duty in parliament. The statute, Sir, which I here allude to, is the 11th of H. VI. c. 11, which was made to extend the provisions of 5th H. IV. c. 6, for punishment of assaults on the servants of members of parliament when attending on their masters in their duty, to the persons of the members themselves. It might be urged, that the power in question has never been given them by any Act of Parliament, and that if there ever was a time when they did not possess it, they can by no other means have legally acquired it. All this and much more might be said, if it were necessary to dispute the authority of the House of Commons to issue the warrant for the commitment of Mr. Miller; but it is sufficient for me at present to contend, that whether they had or had not the power, they never did in

passion, I should have sooner done.

I own I now do it with

some distrust of my own abilities, in doing justice to the un

fact give the defendant any authority whatsoever to make the arrest in question.

"The warrant, Sir, under colour of which Mr. Whittam acted, is a warrant purporting to be issued in pursuance of an order of the House of Commons, and signed Fletcher Norton, Speaker. But, Sir, the order of the House, as it is recited in the warrant itself, is for taking Mr. Miller into the custody of the serjeant-at-arms or his deputy; and Mr. Whittam is described in the direction of the very same warrant to be neither the one nor the other of these. No authority whatsoever can be conveyed to Mr. Whittam, by virtue of an order in which he is not named, and which particularly points out certain persons, in contradiction from all others. This warrant, therefore (so far as it relates to Mr. Whittam), appears to be issued by the Speaker, merely of his own authority, unauthorized by any order of the House of Commons. Has the Speaker any power to commit, unless he derives it from the orders of the House? If he has not, which must be granted, he is bound strictly and literally to pursue that order which creates his authority: as far as he exceeds it, he acts without authority himself, and most clearly can convey none to any other person. Mr. Whittam therefore, in this case, acting without any legal authority whatever in the arrest of the prosecutor, a prosecution grounded upon that cannot be considered as totally void of foundation. But supposing for a moment that the prosecution was frivolous and ill-grounded, I submit that that alone would not be a reason for the extraordinary interposition of the crown. If it would in this case, it must in every other; every defendant who fancied himself unjustly prosecuted would apply for protection to the crown, and almost every indictment must first be tried by the attorneygeneral before it could come regularly into a court of justice. I presume you will conceive it was not for these purposes that this prerogative was vested in your hands, and that there must appear some strong reasons peculiar to the case to show why it is improper and unfit for public discussion, besides merely that of the prosecution being ill-grounded to induce you to make this extraordinary interposition. I submit to you, Sir, with great deference, that there appears no such reasons in this case. Every motive of policy and prudence seems to weigh on the other side. The question to be tried is the most important that can well be conceived. The privileges of the House of Commons on the one side, and the liberties of the people of England on the other, are said to be materially affected. Perhaps, indeed, it might have been wished that this great question had never been started, or brought to the public view, by issuing the warrant in question. But when it has been already so much agitated, and has engrossed the attention of the public, it seems necessary, for the satisfaction and quiet of the kingdom, that it should proceed to a solemn and legal determination in a court of justice. If, therefore, Sir, the House of Commons had no authority by law to authorize Mr. Whittam to make the arrest upon the prosecutor, or if, in fact, no authority was delegated to him, in either of these cases he has illegally assaulted an innocent man, and deprived him of his liberty; and the entering a noli prosequi would be an obstruction of public justice. If, on the other hand,

dertaking. Your Lordship must be aware that it is generally a matter of some degree of delicacy to undertake the discussion

the House of Commons had a legal authority, and regularly delegated the execution of it to Mr. Whittam, the public should be convinced of it by a discussion and determination in a court of law; and the granting the noli prosequi in that case would tend to mislead many people into an opinion that it was done to screen an offender from the laws, who had no legal justification in a court of justice: I therefore submit to you, Sir. for these reasons, that you, as Attorney-General, will not think proper in this case to grant a noli prosequi."

Mr. Attorney-General.-" Do you produce any evidence?"

Mr. Adair." We offer no other evidence than what appears in the affidavit of the defendant himself, and the warrant to which it refers."

Mr. Attorney-General.-" You are extremely right in this, that it is not at all a fit thing for the Attorney-General to try either the fact upon which the defendant is indicted, or to determine the law. The only question is this, whether it is fit for the King to interpose as the prosecutor of this offence? That, I take it, should be the ground of your argument, and the point upon which I expected satisfaction. The affidavit itself states the messenger of the House of Commons to be acting under the authority of the House of Commons; and if this was the only way in which that question could be brought before a court of law, I should be obliged to give an opinion whether it ought or whether it ought not.

"The only point I have to consider is, whether it be fit for the name of the crown to appear in prosecuting one who appears to be the messenger of the House of Commons, and to be armed by the authority of that House for doing the very thing he has done under the orders of the House? I don't mean to pass over the objection which has been made, that the Speaker of the House, by orders of the House, directing the warrant to a person not named in such order, whether that order extends only to arresting the prosecutor, and taking him into the custody of the serjeant-at-arms, or his deputy: I dare say I take Mr. Adair's objection perfectly right; the order of the House is for taking him into the custody of the serjeant-at-arms, or his deputy; and the objection is, that the person in whose custody the prosecutor was originally taken is neither the serjeant-at-arms or his deputy. And the doubt you raise upon it is, whether the Speaker of the House of Commons can authorize another person to arrest and bring him into the custody of the serjeant-at-arms or his deputy; for the serjeant-at-arms, or his deputy, is the proper and the only custody I know of belonging to the House; and the gentleman's argument is, that in point of the arrest it cannot be made without the serjeant, or deputy-serjeant, with respect to the orders of the House of Commons, and the direction of the warrant by the Speaker, which is a question of law to be sure. It has been constant in point of practice for the messengers to be employed (in the orders of the House, and for other than messengers to be employed) upon the very same occasion. There is nothing so constant as the messengers all to be employed; there are some few instances where more than the messengers have been employed upon these occasions. The difficulty upon it was, whether they should or not be

of any part or system of politics, as it is of some difficulty to avoid the share of imputations which are indiscriminately

inserted in the warrant ; or whether, if they were not inserted in the warrant, it could be construed under the general description of the serjeant-at-arms or his deputy; or whether that authority could go to warrant those which might be appointed by the serjeant-at-arms or his deputy upon that occasion. It was thought more proper to make a warrant directed to the person to be employed, though it was mentioned in the orders of the House that the custody was to be that of the serjeant-at-arms, or his deputy, according to the usual form of their orders.

"But the only point for me to consider is, how far it is fit the King should be the prosecutor of a servant of the House of Commons, in the execution of a privilege which they now claim, which they have claimed for ages, and have been in the possession of for ages; and that the King should be brought into a proceeding against the servant of the House as a prosecutor. The noli prosequi is called a prerogative right of the crown; it amounts to no more than this, that the King makes his election whether he will continue or not to be the prosecutor upon an indictment, and the noli prosequi is entered in the same words in case of the crown as of a private person. The entry upon the record is exactly the same by the Attorney-General as by a private plaintiff upon record in any civil suit.

"I did expect that you would have given me some reason for entertaining an opinion that it was decent and fit for the crown to continue and stand forth as a prosecutor of the messenger of the House of Commons, acting under their direction, in maintenance of a privilege they have claimed and held so long. That is the only point I put it upon. The affidavit, as made by the defendant, makes it necessary to consider him as an officer of the House.

"I did not indeed expect any disputes upon it, or that it would be put upon so small a ground; the reason I expected was, that it was becoming an officer of the crown, in the name of the crown, to continue a prosecution by the crown, against the messenger of the House of Commons, acting under the authority of the House of Commons."

Mr. Adair, expressing a doubt whether it would be proper for him to make any reply to this, the Attorney-General said he should be glad to hear him.

То

Mr. Adair.-"With regard to what you have suggested, it is true the entry upon record is the same in the case of the crown as of a private person; yet in a prosecution by indictment the crown is not solely concerned. make the case exactly similar, it should be an information ex officio, or any other really and truly a crown prosecution; and then the entering noli prosequi upon that would be the same as upon private actions. But in the case of indictments, the King being in fact a nominal prosecutor, though his name is necessary, yet the injured party being the true prosecutor (who applies to the laws of his country for justice against the offender, who has violated those laws and particularly injured him), if in that case the King puts a stop to the prosecution by withdrawing his name from it, it is the same in effect, though not in form, as if he sent his mandate and said that prosecution should not go

thrown on all who submit their anonymous opinions to the public. Though these reproaches may fall on those whose names would give some credit to their assertions, yet while they adopt the common method of hirelings, their writings must expect the same treatment. With whatever circumstances

on; because if he withdraws his name from it, that prosecution cannot, by the laws, go any further-the prosecutor himself cannot proceed in his own name; the withdrawing that name has the same effect as the actual interposition of prerogative by the Attorney-General, and operates the same as a pardon. Mr. Whittam being alleged to have acted under the authority of the House of Commons, to have had a warrant directed to him, the question is not whether the warrant is legal or not, but whether it is proper for the crown to put a stop to that prosecution, and whether, the privileges of the House of Commons being said to be concerned, any interposition of the crown be necessary to support their authority. If Whittam has acted in pursuance of the order of the House, if those orders are such as the House has a compe tent authority to make, I submit that it cannot be a doubt that that matter, pleaded or brought in a regular manner before a court of justice, would be a sufficient defence. If the courts of law are of opinion that the House has that authority, and that it was regularly delegated to Whittam, they would necessarily be of opinion to acquit him; and upon that ground there appears to be no necessity for the crown withdrawing itself from a prosecution which by no possible means can prove oppressive or injurious to the defendant. If he has acted under a legal authority, he must be legally acquitted in a court of justice. But if the authority is not sufficient, or not regularly conveyed, it is proper, for the sake of justice and the liberty of the subject, that judgment should be pronounced upon it in a court of law. I believe the prosecutor does not contend that the defendant has been guilty of that kind of offence for which he means to prosecute him with any rigour; he don't mean to oppress him, or proceed for the sake of punishment only. Whether it is five pounds or five thousand is indifferent to him; the only thing he wishes, is to have the question decided by a legal competent jurisdiction. If it comes regularly before the court, though perhaps upon this indictment it could not, but if it does, the question is, whether the Speaker of the House of Commons had a sufficient legal authority to authorize that arrest, or whether the defendant has actually acted under that authority, such as it was. And I submit to your consideration whether, upon that point, such interposition appears to be necessary in this case, either upon behalf of the defendant, or of the privilege of the House of Commons."

Mr. Attorney-General." I don't put it upon the tenderness to Mr. Whittam, or the point of privilege of the House of Commons, but merely upon the foot of decency, as the circumstance of the crown taking a part in the prosecution (which they must do if they go on with it) against the messenger of the House of Commons, acting under the authority of the warrant of the Speaker, pursuant to an order of the House."

Mr. De Grey, the Attorney-General, was afterwards Chief Justice of the Common Pleas, and Mr. Adair subsequently Recorder of London.