CXLIIL He an nounces his constitu tional principles on a point of practice. Imprisonment of Wilkes. Question of privilege. sufficient profit, ease, and dignity; and I believe that I am a much happier man than the highest post in the law could have made me." He then little expected that before long the prophet might have exclaimed to him, “Thou hast it now, King, Cawdor, Glamis - all!" Lest he should never have a better opportunity, in the Court of Common Pleas, of proclaiming his adherence to constitutional principles, a question of practice arising during his first term, viz., "whether the Judges could refuse a plea puis darrein continuance," the Chief Justice said, "Such discretion is contrary to the genius of the common law of England, and would be more fit for an Eastern monarchy than for this land of liberty. Nulli negabimus justitiam.” * But, ere long, he had to adjudicate upon a case that excited more interest in the public mind than any that had occurred in a court of law since the trial of the Seven Bishops. In the morning of Saturday, 30th of April, 1763, John Wilkes, then member for the borough of Buckingham, was arrested, under Lord Halifax's general warrant to "seize the authors, printers, and publishers of the North Briton, No. XLV., together with their papers." As soon as a copy of the warrant could be obtained, while he was still in his house in Great George Street, in custody of the messengers, Serjeant Glyn, in the Court of Common Pleas, moved for, and obtained for him, a writ of Habeas Corpus, returnable immediately, the Chief Justice observing, "that this was a most extraordinary warrant." The Solicitor to the Treasury, who was present, having reported what had passed to the Secretary of State, Mr. Wilkes, before the writ could be served on the messengers, was committed a close prisoner to the Tower, and the officers of the Secretary of State returned, that "he was not in their custody." On the Monday a Habeas Corpus was obtained, directed to the Lieutenant of the Tower. The metropolis was now in a state of almost unparalleled excitement. At the sitting of the Court, on the Tuesday morning, Mr. Wilkes was brought into Court by the Lieutenant of the Tower, who, without noticing in his Return the "general * 2 Wilson, 137. Paris v. Salkeld. CHAP. CXLIII. warrant" under which the arrest took place, merely set out the commitment to the Tower of Mr. Wilkes, as "the author and publisher of a most infamous and seditious libel, entitled the North Briton, No. XLV., tending to inflame the minds, and to alienate the affections of the people, from his Majesty, and to excite them to traitorous insurrections against the government." Thus the question of the legality of general warrants was for the present evaded: but Serjeant Glyn moved, that Mr. Wilkes should be set at liberty, "first, on the ground that it did not appear that there had been any information on oath against him before his commitment; secondly, that no part of the libel was set forth to enable the Court to see whether any offence had been committed; and, thirdly, that he was privileged from arrest as a member of Parliament." After a learned argument by Lord counsel, and a vapouring speech from Mr. Wilkes himself, Camden's judgment the Court took time to consider; and, on the Friday follow- for liberating, the Lord Chief Justice Pratt delivered their unanimous ing Wilkes. opinion, overruling the first two objections, and thus dealing with the last: "The third matter insisted upon for Mr. Wilkes is, that he is a member of Parliament, (which is admitted by the King's Serjeants,) and so entitled to privilege to be free from arrests in all cases, except treason, felony, and actual breach of the peace; and we are all of opinion that he is entitled to that privilege, and that he must be set at liberty. The Seven Bishops were most unjustly ousted of their privilege, three of the Judges deciding that a seditious libel was an actual breach of the peace. 4 Inst. 25. says, 'the privilege of Parliament holds, unless it be in three cases, viz., treason, felony, and the peace. Privilege of Parliament holds in informations for the King, unless in the cases before excepted.' The case of an information against Lord Tankerville for bribery (4 Anne) was within the privilege of Parliament. We are all of opinion, that a libel is not a breach of the peace: it tends to a breach of the peace, and that is the utmost. But that which only tends to a breach of the peace cannot be an actual breach of it. In the case of the Seven Bishops, Judge Powell, the only honest man of the four Judges, dissented, and I am CHAP. CXLIII. Considera bound to be of his opinion, and to say that case is not law but it shows the miserable condition to which the state was then reduced. Let Mr. Wilkes be discharged from his imprisonment." A great part of the population of London being in Westminster Hall, Palace Yard, and the adjoining streets, a shout arose which was heard with dismay at St. James's.* As the authorities then stood, I think a court of law was tion of the bound to decide in favour of privilege in such a case; but question of privilege. although I must condemn the servile desire to please the Nov. 1763. King and his ministers, by which both Houses were actuated on the re-assembling of parliament, I cannot but approve the resolution to which they jointly came, and which, I presume, would now be considered conclusive evidence of the law, "that privilege of parliament does not extend to the case of writing or publishing seditious libels." † I do not think that privilege of parliament should, in any respect, interfere with the execution of the criminal law of the country. Little inconvenience arises from the immunity of members of parliament from arrest for debt, and this is necessary to protect them in the discharge of their public functions. Lord immense The immense popularity which Lord Chief Justice Pratt Camden's now acquired, I am afraid, led him into some intemperance of popularity. language, although his decisions might be sound. Many actions were brought in his Court, and tried before him, for arrests under general warrants, and the juries giving enormous damages, applications were made to set aside the verdicts, and to grant new trials. It might be right to refuse to interfere, but not in terms such as these: "The personal injury done to the plaintiff was very small, so that if the jury had been confined by their oath to consider the mere personal injury only, perhaps twenty pounds would have been thought damages sufficient; but the jury saw before them a magistrate exercising arbitrary power over all the King's subjects violating Magna Charta, and attempting to destroy the liberty His inflammatory language to uries. 2 Wilson, 151-160.; 19 St. Tr. 982-1002. † 15 Parl. Hist. 1365.-I am not aware whether the privilege was claimed in cases of libel after conviction, so as to prevent sentence of imprisonment. The Earl of Abingdon, and other members of parliament, have since been sentenced to imprisonment for libel without question. of the kingdom by insisting on the legality of this general CHAP. warrant; they heard the King's counsel, and saw the CXLIII. Solicitor to the Treasury endeavouring to support and maintain the legality of the warrant in a tyrannical and severe manner. These are the ideas which struck the jury on the trial, and I think they have done right in giving exemplary damages. To enter a man's house under colour of a nameless warrant in order to procure evidence, is worse than the Spanish inquisition-a law under which no Englishman would wish to live an hour; - it was a most daring attack on the liberty of the subject. Nullus liber homo capiatur vel imprisonetur, nec super eum ibimus-nisi per legale judicium parium suorum vel per legem terræ.' An attempt has been made to destroy this protection against arbitrary power. I cannot say what damages I should have given if I had been upon the jury." 6 1763. Wilkes's Camden. Mr. Wilkes's own action being afterwards tried before Dec. 6. Lord Chief Justice Pratt, he said, "The defendants claim a right, under a general warrant and bad precedents, to force action for persons' houses, break open escritoires, seize papers where no tried before damages inventory is made of the things taken, and no persons' names Lord specified in the warrant, so that messengers are to be vested with a discretionary power to search wherever their suspicions or their malice may lead them. As to the damages, I continue of opinion that the jury are not limited by the injury received. Damages are designed not only as a satisfaction to the injured person, but likewise as a punishment to the guilty, and as proof of the detestation in which the wrongful act is held by the jury." The jury having given 10007., a bill of exceptions was tendered to the direction - but the Chief Justice refused to receive it, as it came too late after verdict. In Leach v. Money +, however, the question as to the legality Legality of general of general warrants was regularly raised. There Lord Chief Justice Pratt, having given a similar direction, a bill of exceptions was duly tendered and carried by writ of error into the King's Bench. It was in arguing this case that Dun * 2 Wils. 206, 207. Huckle v. Money. † Ib. 244.; Beardmore v. Carrington. warrants. CHAP CXLIII. Legality of warrants to search for papers. ning laid the foundation of his splendid fame. Lord Mansfield having, in the course of the argument, thrown out an opinion against the legality of the warrant, the Attorney General Yorke contrived to be beaten on a bye point; but, without a formal judgment, general warrants have ever since been considered illegal, although they were sanctioned by a uniform usage of ancient standing in the office of the Secretary of State.* Another very important case was brought before the Court of Common Pleas while Pratt presided there, in which the question was distinctly raised, whether, "on a charge of libel, the Sccretary of State may grant a warrant to search for, seize, and carry away papers ;" and in support of this practice too a long course of precedents was proved. But after protracted arguments the Chief Justice said, "The warrant was an execution in the first instance without any previous summons, examination, hearing the plaintiff, or proof that he was the author of the supposed libels, -a power claimed by no other magistrate whatever (Scroggs, C. J., always excepted); it was left to the discretion of the defendants to execute the warrant in the absence or presence of the plaintiff when he might have no witness present to see what they did, for they were to seize all papers, bank bills, or any other valuable papers they might take away if they were so disposed. If this be lawful, both Houses of parliament are involved in it; for they have both ruled that, in such matters, they are on a footing with all the rest of the King's subjects. In the case of Wilkes, a member of the House of Commons, all his books and papers were seized and taken away: we were told by one of these witnesses, that he was obliged by his oath to sweep away all papers whatsoever.' If this be law, it would be found in our books, but no such law ever existed in this country; our law holds property so sacred, that no man can set his foot on his neighbour's close without his leave. The defendants have no right to avail themselves of the usage of these warrants since the Revolution,-that usage being contrary to law. The Secretary of State cannot make that law which is not to be found in our books. It must have been |