66 Lake's Cafe. means Surety of the The King v. Culpepper. Peace' Peace. We have not been able to have Recourfe to the In what Caoriginal Record, but in Cotton's Abridgment, fol. 596. you of Pailiafes Privilege will find my Ld. Coke was right The Cafe I would refer ment holds. to is that of William Lake, 9th of Hen. 6. who being a William Member's Servant, and taken in Execution for Debt, was delivered by the Privilege of the Houfe of Commons; the Book adds, (and for that Purpofe 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 the Peace' to mean Surety of the Peace." In the Cafe of The King v. Sir Thomas Culpepper, reported in 12 Mod. 108. 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 Surety 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 though not reported in any Law Book, is upon Record in Parliament, it was held that Bribery, being only a constructive, and not an actual Breach of the A conftrucPeace, fhould not ouft him of his Privilege; there is no of the Peace Difference between the two Houfes of Parliament in re- does not out Privilege of Lord Tankerville's Cate. tive Breach refers to both Houtes. tends to, is the Peace. fpect of Privilege. The Statutes of 12 & 13 Wil. 3. c. 3. Parliament. and 23 An. c. 18. fpeak of the Privilege of Parliament in Privilege of Reference not to one Houfe in particular, but to both Parliament Houfes, what then is the prefent Cafe? Mr. Wilkes, a Member of the Houfe 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 Libel only Peace? Mr. Dalton in his Juftice of the Peace, fol. 289. not an actual defines a Libel as a Thing tending to the Breach of the Breach of, Peace. In Sir Baptift Hicks's Cafe, Hob. 224. it is called a Provocation to a Breach of the Peace. In Lev. 139. The King v. Summers, it was held to be an Offence conufable before Juftices, because it tended to a Breach of the Peace. In Hawk. Pl. Cor. 193. chap. 73. fect. 3. it is called a Thing directly tending to a Breach of the public Peace, Privilege of Now that which tends only to the Breach of the Peace, is Parliament not an actual Breach of it, is too plain a Propofition to ad- holds in a mit of Argument. But if it was admitted that a Libel Peace, uawas a Breach of the Peace, still Privilege cannot be exclu- lefs it re ded, unless it requires Surety of the Peace; and there has quies Sure Breach of the ties of the been Peace. required to give Surety Seven Bi- been no Precedent but that of the feven Bishops cited to fhops Cafe fhew that Sureties of the Peace are requirable from a Lionly Piecedent of Li beller; and as to the Opinion of the three Judges in that beliers being Cafe, it only ferves to fhew the miferable State of Juftice in thofe Days Allybone, one of the three, was a rigid and of the Peace, profeffed (a) Papift, Wright and Holloway, I am much Judge Allybone a Papilt; afraid, were placed there for doing Jobbs, and Powell, the Wright and only honest Man upon the Bench, gave no Opinion at all. Holloway Perhaps it implies an Abfurdity to demand Sureties of the placed there Peace from a Libeller; however, what was done in the for doing Cafe of the feven Bishops, I am bold to deny was Law. Jobbs. Powell the only honeft Upon the Whole, though it should be admitted, that SuJudge gave reties of the Peace are requirable from Mr. Wilkes, ftill his no Opinion. Seven Bi- Privilege of Parliament will not be taken away till Sureties fhops Cafe have been demanded and refused. Let him be difcharged. Privilege of Eafer Term 3 Geo. 3. 1763. C. P. MSS. The King v. John Parliament Wilkes, Efq. rot Law. holds tillSu recies have been de However fince the above Opinion of the Court of Com-manded and mon Pleas, the Refolutions of both Houfes of Parliament have determined, that Privilege does not lie in the fingle Cafe of a feditious Libel. Quod nota. refuled. Both Houses of Parliament have refolved,that Privilege does not lie in the Cate of a feditious Libel. An Affidavit in one Moti on cannot be С НА Р. XVIII. AFFIDAVIT S. T was refolved in this Cafe, that on a Motion for an Information against A. an Affidavit in a Motion against read in an- B. cannot be read; because the Swearer cannot be profecuted for it if falfe. Michaelmas Term 6 An. 1707. Q. B, 11 Mod. 141. pl. 9. The Queen v. Thetford Mayor. other. How Affidavits must be intitled. An Affidavit being intitled The King v. Lewis, it was objected there was no fuch Cause in Court; but the Court faid, it was enough that there was a Cause below between The King and Lewis, fo the Affidavit was read. Trinity Term 12 Geo. 1726. K. B. Stra. 704. The King v. Lewis. (a) Burn. Hift. O. T.745 3 Mod. 239. The The Affidavits on which an Information was moved for had no Title (which was agreed to be right), but the Affidavits for the Defendant on fhewing Caufe were intitled The King v. Jones; and upon Objection to the reading them, the Court faid, that there being a Rule in the King's Bench to fhew Caufe why there fhould not be an Information, that was a Proceeding in Court between The King and Jones, and warranted the intitiing the Affidavits in that Manner. Trinity Term 12 Gea. 1726. K. B. Stra. 704. 705. Andr. 313, 314. S. P. The King v. Jones. fhew Cause Information was moved for, and a Rule to fhew Caufe: On a Ruleto At the Day fresh Affidavits were produced, Part in Confir- against anInmation, and Part introductory of new Matter; and the formation, Queftion was, whether the Affidavits could be read accord- no fuppleing to the Courfe of the Court, it being objected, that no davits introfupplemental Affidavits but could be made in Confirmation ductive of only. mental Affi new Matter to be read The Court faid, that where Affidavits are produced, Part but in Conin Confirmation, and Part introductory of new Matter, it is firmation not a general Rule that they fhall be abfolutely rejected; only. but the Court will be pretty nice in diftinguishing what is new Matter, and what is Confirmation of the old. In Affidavits upon which the Rule was made, the Complaint was, that A. and B. and several other Perfons, &c. but no Perfon particularly charged; thefe Affidavits were not produced, in order to fix the Charge upon particular Perfons. The Affidavits now offered are intirely introductive of new Matter; for the Charge in the firft Affidavits being general, a general Anfwer would have been fufficient; but this is reducing it to a particular Charge, and therefore makes a particular Anfwer neceffary. Hilary Term 7 Geo. 2. 1734. K. B. 2 Kel, 178. pl. 142. The King v. Kinafton. CHAP. 56 1 King's CHA P. XIX. INFORMATIONS and INDICTMENTS. TH THE King's (a) Peace includes good Order and Government, and that Peace may be broken in maken without ny Inftances without an actual Force. 2 Kel. 230. pl. 103. Force, as as if it be an Act, May be b.o 1. Against Region. 2. Against Morality. 3. Against the Conftitution, 1. Against Religion. 2. Against Morality. And 3. Against the Constitution, or Civil Government, 1. Against Religion. Libel to re- It is a Libel if it reflects upon Religion, that great Bafis fect on Re- of Civil Government and Society, and it may be both a be a fpiritu- fpiritual and temporal Offence. ligion, may al and tem poral Of fence. Scandalous gion. Error brought by Defendant to reverfe a Judgment upWords a- on an Indi&ment, before Juftices of Peace for fcandalous gainit Reli- Words; That the Religion now profeffed was a new Religion within fifty Years, Preaching was but Prating, and hearing of Service more edifying than two Hours Preaching: And he Not inquir was thereof convicted. The Error affigned was, that this able before was not any Offence inquirable by Indi&ment, and before Juftices of Juftices of Peace, but only before the High Commiffioners; and it was referred to the King's Attorney to confider thereof; And the Attorney (b) General certified, that it was not inquirable before them; and of that Opinion was the Court, but they would advife. Eafter Term 15 fac. 2. 1617. K. B. Cro. Fac. 421. pl. 1. The King v. Atwood. Peace. (a) The Wisdom of the Law has filed it the King's Peace, because it is His Authority that commands it, it is His Juffice that fecures it. The Eail of Nottingham's Speech (as Lord High Steward) on Lord Cornwallis's Trial. See St. Tri. (b) Sir Henry Yelverton. Dugd. Chron. Ser. 105. Whitw. 167. afterwards fith Judge of the Common Pleas. Cro. Car. 4. Tab. Judg to Cro Car, and to Cro fac. Dugd. Chron. Ser. 16, Chron. Jur. 189. See Cro. Car. 2, 3. W. Jo. 63. Fortefc. Rep 383. N. B. This Judge is omitted in Whitw. and that Camb. Brit. 474. lays he was Lord Chief Juftice of England under King Charles the Firft. Απ An Information was exhibited against the Defendant in Blafphemy. the Crown Office, for uttering of divers blafphemous Expreffions, horrible to hear, viz. That Jefus Chrift was a Baftard, a Whoremafter, Religion was a Cheat; and that he neither feared God, the Devil, or Man Being upon his Trial, he acknowledged the fpeaking of the Words, except the word Baftard; and for the reft, he pretended to mean them in another Senfe than they ordinarily bear, viz. Whoremafter, i. e. That Chrift was Mafter of the Whore of Babylon, and fuch kind of Evasions for the reft. But all the Words being proved by feveral Witneffes, he was found guilty. And Hale faid, That fuch kind of wicked blafphemous Blafphemy not only an Words were not only an Offence to God and Religion; but Offence aa Crime against the Laws, State and Government, and gainst Relitherefore punishable in this Court. For to fay Religion is gion but aa Cheat, is to diffolve all thofe Obligations whereby civil gainst Law. Societies are preferved, and that Christianity is Parcel of the Chriftianity Laws of England; and therefore to reproach the Chriftian Parcel of Religion, is to fpeak in Subverfion of the Law. Hilary England. Term, 27 Car. 2. 1675. K. B. Ventr. 293, 3 Keb. Rep. 607. pl. 53. The King v. Taylor. the Law of Libel about There was a Special Verdict on a Libel about the Trini- the Trinity. ty, and it was not made a doubt of in that Cafe. Eafter Term 10 An. 1709. 2 Stra. 790. The Queen v. Clendon. «Sober ReDefendant was convicted for a Libel, intituled, "A ply to the fober Reply to the merry Arguments about the Trinity." merry Ar2 Stra. 189. See Id. 416. The King v. Hall. guments q bout the Tri marions for wherein the culed. Five feveral Informations were preferred against the De- nity.' fendant by the Attorney (a) General, for publishing five Five Inforblafphemous Libels wherein the Miracles of our Saviour five blafphewere turned into Ridicule, and his Life and Converfation mous Libels expofed and vilified. His Counsel offered to move three Miracles of Matters in Arreft of Judgment. One that the Book was our Saviour not writ against the Chriftian Religion, the other admitting were ridiit was, yet it could not be punished by the Temporal Courts, but was a Matter innocent in itself, and lawful for every Man to do. The third that the Statute of 9 &10 W. 3. c. 32. had appointed a lefs punishment for this Of-W. 3. c. fence, than was at the Common Law, and by that Means had taken away the Punishment at the Common Law. But the second of thefe Points the Court faid they would Court would Sir Philip Yorke, fsee Chap. 11. fol. 24.6in Notes. 'not Stat. 9 32. not fuffer it to be argued whether writing a gainft Reli gion was an Offence. |