in the note.But notwithstanding this determination of the Court, he was a NOT E. On Mr. Wilkes's ceafing to fpeak, the Court proceeded to give their opinion: "The return being read, Mr. Serjeant Glyn (the Defendant's Counfel) prayed it might be filed, which was ordered accordingly; and then he took two exceptions to it, and submitted further, that the Defendant being a Member of Parliament, was intitled to his privilege, and ought for that reafon alone to be difcharged. After folemn argument at the bar, and time taken for confideration, the Chief Justice delivered the refolution of the Court (which was unanimous) to the following effect. Pratt Ch. Juft. "When this return was read, my brother Glyn, Counfel for Mr. Wilkes, made two objections to it; and tho' thofe fhould fail him, he infifted that Mr Wilkes, from the nature of his particular fation and character, as being a Member of the House of Commons, was intitled to privilege of Parliament, and ought for that reafon alone to be difcharged from his prefent imprisonment. To begin with the objections. The first was, that it did not appear by the warrant that Mr. Wilkes ftood charged upon any evidence with being the Author of the Libel defcribed in the warrant; the true question arifing upon this objection is, whether ftating the evidence be effential to the validity of the warrant, and upon this point we are all clearly of opinion that the warrant is good; we confider the Secretaries in the light of common Juf tices of the Peace, they no more than any common Juftices can iffue warrants merely ex officio, or for offences within their private knowledge, being in those cafes rather witneffes than magiftrates; but tho' this be admitted, it will not affect the prefent question. The prefent queftion is, whether the ftating the evidence be effential to the validity of the warrant; no authority has been cited by the defendant's Counsel to fhew it. Rudyard's cafe in 2 Ventr. 22. was indeed referred to, but upon examining that cafe, it does not apply. The commitment there was a commitment in execution, and therefore it was neceffary in that cafe to tate the evidence. It was urged farther, that the ground of the Juftices jurifdiction few days afterwards ferved with a Subpoena, requiring his appearance to an inNOTE. refted in the charge by witneffes, and if it was otherwife, every man's liberty would be in the power of the Juftices. The objection deserves an answer, and if it had not been determined before, I fhould have thought it very weighty and alarming; but it has been settled. Before I mention the cafe where it was folemnly adjudged, I would take notice, that neither my Lord Coke, Lord Hale, or Mr. Hawkins, all of them very able writers upon the Crown Law, have confidered fuch a charge as is contended for to be effential. In the trial of the feven Bifhops, tho' they were committed upon a fimilar warrant, their Counfel did not take the fame objection. In referring to that great cafe, I am not to be underftood as intending to give any weight to the determination of the Judges who fat upon the Bench, in that cause; I rely only on the filence of the Defendants Counfel, who were all of them Lovers of Liberty, and the greatest Lawyers of that age. We have feen precedents of commitments returned upon Habeas Corpus's, into the King's-Bench, where the warrants have been all in the fame form, and no fuch objection taken; but the very point was determined in the cafe of Sir W. Wyndham, 3 Vin. Abr. 530, 535, Sira. 2. who was committed for high treafon generally, and not on the charge of any body, ftated in the commitment. 2 Hawk, Pl. Cr. 120, Chap 17. Se&. 17. refers to the cafe of Sir W. Wyndham, and fays it is fafer to fet forth that the party is charged upon oath, but that is not neceffary. Thus ftands this point on authorities. The other objection was, that the Libel itfelf ought to have been set forth in hæc verba; but upon that point too, we are all of opinion that the warrant is good. It was urged, that the fpecific caufe of detention ought to be stated with certainty; and therefore, if a man be committed for felony, the warrant muft briefly mention the fpecies of the felony. Now the fpecies of every of fence must be collected by the Magiftrate out of the evidence, but he is not bound to fet forth the evidence, he is anfwerable only for the inference he deduces from it. As to a libel, the evidence is partly internal and partly external. The paper formation filed against him in the King's General. This was fuppofed to be anoBench by Mr. Yorke, the Attorney NOTE. NOT E. ther record, but in Cotton's Abridgment, fol, 596, you will find my Lord Coke was right. The cafe I would refer to, is, that of William Lake, 9th of Henry 6. who being a Member's fervant, and taken in execution for debt, was delivered by the Privilege of the House of Commons; the book adds, (and for that Purpose I refer to it) wherein is to be noted, that there is no caufe to arrest any fuch man, but for Treafon, Felony and the Peace. In the trial of the feven Bishops, the words "the Peace" are explained to mean "Surety of the Peace." In the cafe of the King v. Sir Thomas Culpepper, reported in 12 Mod. 158. Lord Holt fays, that, whereas it is faid in our books, that Privilege of Parliament was not allowable in Treafon, Felony, or Breach of the Peace, it must be intended where furety of the Peace is defired, that it fhall not protect a man against a Supplicavit, but it holds as well in cafe of Indictment, Information for Breach of the Peace, as in cafe of actions. In the cafe of Lord Tankerville, a few years ago, which, tho' not reported in any law book, is upon record in Parliament, it was held that bribery, being only a conftructive, and not an actual, breach of the peace, fhould not out him of his privilege; there is no difference between the two Houfes of Parliament in respect of privilege. The ftatutes of 12 & 13 Wil. 3. c. 3. and 2 & 3 An. c. 18. fpeak of the privilege of Parliament in reference not to one Houfe in particular, but to both Houses; what then is the prefent cafe? Mr. Wilkes, a Member of the House of Commons, is committed for being the Author and Publisher of an infamous and feditious Libel. Is a Libel ipfo facto in itself, an actual breach of the peace? Mr. Dalton, in his Juftice of the Peace, fol. 289. defines a Libel as a thing tending to the breach of the peace. In Sir Bap paper itfelf may not be compleat and conclusive evidence, for it may be dark and unintelligible without the innuendoes which are the external evidence. There is no other name but that of libel, applicable to the offence of libelling, and we know the offence fpecifically by that name, as we know the offences of horfeftealing, forgery, &c. by the names which the law has annexed to them. But two reasons were urged why the law ought to be stated. First, it was faid, that without it the Court cannot judge whether it be a libel or not. The answer is, that the Court ought not, in this proceeding, to give any judgment of that fort, as it would tend to prejudication, to take away the office of a Jury, and to create an improper influence The other reafon was, that unless the libel be ftated, the Court cannot be able to determine on the quantity of bail. I anfwer, that regard to the nature of the offence, is the only neceffary rule in bailling; as to the offence of a libel, it is an high misdemeanor, and good bail (having regard to the quality of the offender) fhould be required, but if the libel itself was ftated, we could have no other meafure of bailing than this; befides, there has been no cafe fhewn to warrant this realon, and it was not urged in the cafe of the feven Bishops, but then it remains to be confidered, whether Mr. Wilkes ought not to be discharged; the King's Counsel have thought fit to admit that he was a Member of the Houfe of Commons, and we are bound to take notice of it. In the cafe of the feven Bithops, the Court took notice of their privilege from their defcription in the warrant, in the prefent cafe there is no fuit depending; here no writ of privilege can therefore iffue, no plea of privilege can be received: It refts, and must rest on the admiffion of the Counsel for the Crown; it is fairly before us upon that admiffion, and we are bound to determine it. In Ld. Coke 4 Inft. 24, 25. after thewing that privilege of Parliament is cognizable at common law, he fays, that privilege generally holds, unleis it be in three cafes, viz. Treafon, Felony and the Peace. We have not been able to have recourfe to the original tift Hick's cafe, Hob. 224. it is called a ther breach of the privileges of Parlia ment. (To be continued.) NOTE. to the breach of the peace, is not an actual breach of it, is too plain a propofition to admit of argument. But if it was admitted that a libel was a breach of the peace, ftill privilege cannot be excluded, unless it requires furety of the peace; and there has been no precedent but that of the fe ven bishops cited to fhew that foreties of the peace are requirable from a libeller; and as to the opinion of the three judges in that cafe, it only ferves to thew the mi ferable ftate of justice in thofe days. Al. lybene, one of the three, was a rigid and profelled papit; Wright and Holloway, I am much afraid, were placed there for doing jobs; and Powell, the only honeft man upon the berch, gave no opinion at all. Perhaps, it implies an abfurdity to demand fureties of the peace from a libeller; however, what was done in the cafe of the leven bishops, I am bold to deny was law that came into my head was, that, if I could poffibly, I would get to London, as foon, if not fooner, than the news of our defeat could get thither: And, it be `ing near dark, I talked with some, especially with my Lord Rochefter, who was would be the best way for me to efcape, it then Wilinat, about their opinions, which being impoffible, as I thought, to get back into Scotland. I found them mightily dif tracted, and their opinions different, of the poffibility of getting to Scotland, but not one agreeing with mine for going to London, faving my Lord Wilmot, and the truth is, I did not impart my defign of going to London to any but my lord Wilmot. But we had fuch a number of beaten men with us, of the horfe, that I trove, as foon as ever it was dark, to get from them; and, though I could not get them to stand by me against the enemy, I could not get rid of them, now I frad a mind to it. to a place called White Ladys, hard by We went that night about twenty miles, Upon the whole, tho' it should be ad- where we ftopped, and got fome little reTong-cafle, by the advice of Mr. Giffard, mitted, that fureties of the peace are refreshment of bread and cheefe, fuch as we quitable from Mr. Wilkes, ftill his privi- could get, it being just beginning to be day.. lege of parliament will not be taken away 'till foretes have been demanded and refufed. Let him be difcharged. Mr. Wilkes's fpeech on this occation may be found in our Mag. 1763, p. 241. An Account of King Charles ad's Escape from Worcester, dictated to Mr. Pepys by the King bimfelf.- Juft published by W. Sandby, in Fleet-freet.This Narraiive, together with other Manuferipts of Mr. Pepys, Secretary to the Admiralty, was befored by him on Magdalen College, in the University of Cambridge; and the Character of Mr. Pepys is fo universally known, that his Single Afertion might be fufficient Proof of the Narrative having been faithfully taken down in the King's own Words; but, independent of an Authority fo reSpectable, the Form of the Narrative, at once minute and interefting, and its lively and careless Style, concur in proving it to be the Compofition of King Charles II. Juft as we came thither, there came in a country-fellow, that told us, there were three thoufand of our horfe juft hard by Tong-cafle, upon the heath, all in diforder, under David Leflie, and fome other of the General Officers: Upon which there were fome of the people of quality that fhould go to him and endeavour to go were with me, who were very earnest that into Scotland; which I thought was abfolutely impoffible, knowing very well that that men who had deferted me when they the country would all rife upon us, and were in good order, would never stand to, me when they have been beaten. putting myfelf into a difguife, and endeavoring to get a foot to London, in a country-fellow's habit, with a pair of ordinary and a green jerkin, which I took in the gray-cloth breeches, a leathern doublet, houfe of White Ladys. I allo cut my hair very short, and flung my cloaths into a privy-houfe, that no body might fee that any body had been stripping themselves. This made me take the refolution of So all the perfons of quality and officers who were with me (except my lord. Wilmot, with whom a place was agreed upon for our meeting at London, if we efcaped, efcaped, and who endeavoured to go on horfeback, in regard, as I think, of his be ing too big to go on foot) were refolved to go and join with the three thousand difordered horfe, thinking to get away with them to Scotland. But, as I did before believe, they were not marched fix miles, after they got to them, but they were all routed by a fingle troop of horfe; which fhews that my opinion was not wrong in not sticking to men who had run away. As foon as I was disguised, I took with me a country-fellow, whofe name was Richard Penderell, whom Mr. Giffard had undertaken to anfwer for, to be an honeft man. He was a Roman Catholic, and I chofe to trust them; because I knew they had hiding-holes for priests, that I thought I might make use of in time of need: I was no fooner gone (being the next morning after the battle, and then broad day) out of the houfe with this countryfellow, but, being in a great wood, I fet myfelf at the edge of the wood, near the high-way that was there, the Better to fee who came after us, and whether they made any fearch after the run-aways, and I immediately faw a troop of horse coming by, which I conceived to be the fame troop that beat our three thoufand horfe; but it did not look like a troop of the army's, but of the militia, for the fellow before it did not look at all like a foldier. In this wood I ftaid all day without meat or drink; and by great good fortune it rained all the time, which hindered them, as I believe, from coming into the wood to search for men that might be fled thither. And one thing is remarkable enough, that thofe with whom I have fince fpoken, of them that joined with the horse upon the heath, did fay that it rained little or nothing with them all the day, but only in the wood where I was, this con tributing to my fafety. As I was in the wood I talked with the fellow about getting towards London, and, atking him many questions about what gentlemen he knew, I did not find he knew any man of quality in the way towards London. And the truth is, my mind changed as I lay in the wood, and I refolved of another way of making my efcape; which was, to get over the Severn into Wales, and fo to get either to Swanfey, or fome other of the fea towns that I krew had commerce with France, to the end I might get over that way, as being a way that I thought none would suspect my taking; befides that, I remembered several honeft gentlemen that were of my acquaintance in Wales. So that night, as foon as it was dark, Richard Penderell and I took our journey on foot towards the Severn, intending to pafs over a ferry, half-way between Bridgenorth and Shrewsbury. But, as we were going in the night, we came by a mill where I heard fome people talking, and as we conceived it was about twelve or one o'clock at night, and the country-fellow defired 'me not to anfwer if any body fhould ask me any questions, because I had not the accent of the country. Just as we came to the mill, we coul fee the miller, as I believe, fitting at the mill door, he being in white cloaths, it being a very dark night. He called out, Who goes there?' Upon which Richard Penderell answered, Neighbours going home,' or fome fuch-like words. Whereupon the miller cried out, If you be neighbours, ftand, or I will knock you down.' Upon which, we believing there was company in the houfe, the fellow bade me follow him clofe; and he ran to a gate that went up a dirty lane, up a hill, and opening the gate, the miller cried out, Rogues! Rogues!" And thereupon fome men came out of the mill after us, which I believed were foldiers : So we fell a running, both of us, up the lane, as long as we could run, it being very deep, and very dirty, till at laft I bade him leap over a hedge, and lie ftill to hear if any body followed us; which we did, and continued lying down upon the ground about half an hour, when, hearing nobody cone, we continued our way on to the village upon the Severn's where the fellow told me there was an honeft gentleman, one Mr. Woolfe, that lived in that town, where I might be with great fafety; for that he had hiding-holes for priests. But I would not go in till I knew a little of his mind, whether he would receive fo dangerous a guaft as me? And therefore stayed in a field, under å hedge, by a great tree, commanding lith not to fay it was I; but only to afk Mr. Woolfe, whether he would receive an English gemleman, a perfon of quality, to hide him the next day, till we could travel again by night, for I durft not go but by night. Mr. Mr. Woolfe, when the country-fellow told him that it was one that had efcaped from the battle of Worcester, faid, that for his part, it was fo dangerous a thing to harbour any body that was known, that he would not venture his neck for any man, unless it were the king himself. Upon which, Richard Penderell, very indifcreetly, and without any leave, told him that it was I. Upon which Mr. Woolfe replied, that he should be very ready to venture all he had in the world to fecure me. Upon which Richard Pen. derell came and told me what he had done. At which I was a little troubled, but then there was no remedy, the day being just coming on, and I must either venture that, or run fome greater danger. So I came into the house a back way, where I found, Mr. Woolfe, an old gentleman, who told me he was very forry to see me there; because there were two companies of the militia foot, at that time, in arms in the town, and kept a guard at the ferry, to examine every body that came that way, in expectation of catching fome that might be making their efcape that way; and that he durft not put me into any of the hiding-holes of his houfe, because they had been difcovered, and confequently, if any iearch fhould be made, they would certainly repair to thefe holes; and that therefore I had no other way of fecurity but to go into his barn, and there lie behind his coin and hay. So after he had given us foine cold meat, that was ready, we, without making any buftle in the houfe, went and lay in the barn all the next day; when towards evening, his fon, who had been piifoner at Shrewsbury, an honest man, was releafed and came home to his father's houfe. And as foon as ever it began to be a little darkish, Mr. Woolfe and his fon brought us meat into the barn; and there we difcourfed with them, whether we might fafely get over the Severn into Wales; which they advised me by no means to adventure upon, because of the ftrict guards that were kept all along the Severn, where any pallage could be found, for preventing any body's escaping that way into Wales. Upon this I took the refolution of going that night the very fame way back again to Penderell's house, where I knew I should hear fome news, what was be come of my lord Wilmot, and resolved again upon going for London. We went on our way to one of Penderell's brothers, and, when I came to his house, I inquired where my lord Wilmot was; it being now towards morning, and having travelled these two nights on foot. Penderell's brother told me, that he had conducted him to a very honeft gentleman's houfe, one Mr. Whitgrave, not far from Woolverhampton, a Roman catholic. I asked him, what news? He told me, that there was one major Careless in the house that was that country-man; whom I knowing, he having been a major in our army, and made his escape thither, a Roman catholic alfo, I fent for him into the room where I was, and confulted with him what we fhould do the next day. He told me, that it would be very dangerous for me either to itay in that house, or to go into the wood, there being a great wood hard by; that he knew but one way how to pass the next day, and that was, to get up into a great oak, in a pretty plain place, where we might fee round about us; for the enemy would certainly fearch at the wood for people that had made their efcape. Of which propofition of his I approving, we (that is to fay, Careless and I) went, and carried up with us fome victuals for the whole day, viz. bread, cheese, small beer, and nothing else, and got up into a great oak, that had been lopt fome three or four years before, and being grown out again, very bushy and thick, could not be feen thro', and here we ftaid all the day. I having, in the mean time, sent Penderell's brother to Mr. Whitgrave's, to know whether my lord Wilmot was there or no; and had word brought me by him at night, that my lord was there; that there was a very fecure hiding-hole in Mr. Whitgrave's houfe, and that he defired me to come thither to him. While we were in this tree we saw soldiers going up and down, in the thicket of the wood, fearching for perfons efcaped, we feeing them, now and then, peep. ing out of the wood. That night Richard Penderell and I went to Mr. Whitgrave's, where I found the gentleman of the house, and an old grand-mother of his, and father Holeone, who had then the care, as gover nor, of bringing up two young gentle men, |