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On Libel:, Warrants, and the Seizure of Papers* 2$

tha house had done. And than even this the legality of riae proceeding. When »he judgement might have been carried " by honourable A'txfirMr Murray was so com'i appeal to the Lords, who in their judi- mitteri, a late great patriot, Sir Jab*. Phi •. '1 cial capacity might think fit to declare iy>i, put on bis gown, and came into tint 'I the legality of" the paper in question, court on purpose " to mate a motion," ". to confirm the practice" of discussing A as lie phrased it, " jn the causoof liberty,M without doors the truth of the speech from and prayed a Hibeas Corpus fur the (n4 the throne, and to affirm tlie judgement. Mr Murray ; winch was accordingly gr*nt> oif the King's Bench. Notwithstanding ed of course. The cause of his. imprison-? therefore, this matter was in a way of mem, returned by the goaler, was only an, trial b.Jow, and notwithstanding the Lords, order of the house of common?, without boJi as a house of parliament and a court. any crime alledged. The judges said theft of judicature, might have differed from the could not question the authority of 'tn» commons, yet they determined both the „ house, or demand the cause of their com. Taw and the fact j without being afraid as rnitnicnt, or judge the fame j and there, tbe attorney is for them " either that the fore icsused to discharge the prisoner, Ohm-, "courts of law must be divided and con- Bri; a" 'he patriot's arguments to the coo's faunded in their opinions, or that the trary, and so remanded him. "dignity of the house of commons must The attorney, however adds, that even *« suffer in the neglect and contempt of the resolution contended for wouid have ". their resolution." According to the been of no utility, because it might have attorney's doArine, a house of commons _ been easily evaded: And then states two should not venture to declare that two and or three cunning devices as *' evasion*, two make four, befoie a court of law has "which lie conceives would fruflate tlia told them so. But, this has never been "telolu'ion, and consequently, render it, thtir pra:tice. They have even come to a ", in effect, no security at ^11." Ach'angeo{ resolution in point of law, contrary to the a word only in the " torm, he says, would judgement of a couit of law, and to the "subject us to the fame evil," To eopinion often out of twelve judges*. line* this, he supposes a secretary of staio

As to what he has said wit'i regard to _ " w** lo giant a particular warrant, de

thetniignificaoce of a mere rthlutiin of the "* scribing ihe person, lor the seising tbe

house (»f commons, I do recollect that '* papers j and a general warrant for ap?

so ncih n,r of a like sort, was fljn<outby "ptrhending the authors, printers and

op.e learned genrIemiti, win, indeed, closed "publishers:" and thereupon fays, " fur

tb= whole of his argument on this point, by "should be glad to know whether eithe*

faying, that " had he the henour of presi- ", "I these warrants would fall under.

"ding in any court of law, he should re- '" this resolution j" and then, taking

"gard such a resolution no more than he g advantage of .the ground he has got, rife*

"would that of so many drunken porters in his nemands, and ventures to atk.

"in Ctvint Garden," It would not, per- "Whether, if the words treasonably

haps be " a judicial determination of the "practices were inserted (and endeavoux

"law, which might be pleaded in a court "mg U> excite to treason, be should (us

"of judicature, and would only be a de- "pn t to be a treasonable piactice) a ge

*' ciaration of the sens* of the law" by "neral warrant misfit not, in that case,

ajl the commons of England. And, with- „ " pals uncensuied, inr.lu.lmg both persons

tut doubt, if the rtfoUtien of one house "and papers?" Now, I will fairly tell

would be of no wtipht with this gentle- htm my thoughts of the muter. Had thq

roan, the resolutions < i both bouses would resolution been agreed to, on purpose to

he os none. Nothing but the concurrence express the indignation of the house, against

of king, lords and comm >ns will do for the outrage, in order to dtster all men from

hun. And yet, 1 dare fay, he would he doing the like lor the future, hardy i

confoundedly fright ned w.ti a single vote the attorney is, I beiieve, he would not

of ulier hoqye, should he live to expert- venture, on any quirk grounded in the ence it. G change of a woid, to have attempted aught

The parliament was, I know, anciently attaint the fpirir or woids of the lel'oluti

called, tsmmune ctnji.ium regni, ttmmunn rci- on, by the teizuic of any member, or in

ftb H<t jponjn. And 1 cmnot even yet deed, of any man j or, if he did, that the

regard a resolu/ion ot the commons, in the Vengeance of the house, which he had so

fame lig'it with the a'toiney, as " a mere tufted with, would have swiftly pursued,

a/nusement;" because, .f by virtue of any overtaken, and punished him. reioiution of theirs, whe. her the same may rj Where the birthright and immemorial

be piraded in a regular plea or not, a man franchise of (he subject has been brr.krn,

b= committed to New/art, the court of why should not the commons, when as.

lOng'i Beixb will never venture to question sen.r-.Je't, come to a resolution; asinr a

. — complaint made to them, the- lact app.icm,

» The great cause of llamfdtn against the law certain?

the crown abeut uVp money. What ihouid make a free;, constitutional

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and independent part of the legislator, Precedents of the conduct »nd) interpowhe* apppealed to by one of it« own fition of the commons under the house of member*, refuse to come to a decisive re- Stuart, both father and son, with respect solution in favour of their own and every to the law of thii kingdom, when invaded other Bngl'/hman't boasted inheritance r by great officers of state, are innumerable;* The point was so great, that never were and yet these were pftnces who claimed a the eyes of mankind more fixed upon their Aright of governing the kingdom, pararepresentarivet. Indeed, I never saw mount the laws, jure divino; whereas it snore stir in the house itself, every body it the honour of hit present majesty's famU pressing his friend to stay and vote j the ly to derive their sole title from the choice secretaries of the treasury, and other men of the people, from an English act of pares consequence, were remaikably active) liaroent. There is not, therefore* the least site crowd and agitation of people about divinity that can now be poffibly imparted the house was inexpressible; substantial from the throne to any of the present minisold citizens, who could not sleep from B try; they are mere men and creatures of concern, stopped members at they passed civil polity, and their actions may be judgin their chairs, to know the event; in ed by the common law of the land, without short, the face of mankind could, not (hew either blasphemy, or any extraordinary or more distress, if the constitution had been occasional statute for the purpose. actually giving up to a Stuart, in one of This being so, I am amazed that the atHi most essential and vital parts, by a Tory torney should think a bill necessary; be* and passively obedient parliament. And cause, il there be no law now existing, that why no resolution was come to on this Q authorizes general warrants in any cafe great and important occasion, I never whatever, it really seems to be ridiculous could learn, and am curious to know t I to bring in a bill " to regulate what does conjure, therefore, those who do know, to "not exist;" an argument, 1 find, which give the public their reasons for the same. he affects not to comprehend, merely be

What "necessity cf peculiar circum- cause he is unable to answer it,

• stances," the attorney may think there The attorney seems to think, he has sa>

should be "absolutely to require their sufficiently defended the majority, that he

"interposition," I know not; but I rj may swagger a little, and therefore aslts,

should imagine these few circumstances litbiiaU that you have to cms tain off Ireally

would be fully sufficient; namely, that thought you could bavi made out a more moving

the act complained of was committed in tale f What is capable of moving him, I

time of public tranquility, without a co- know not j but 1 can assure him, ihat peo

lour of law, by a king's minister, upon pie in general, think the plain story fo bad,

one of the representatives of the people, it is not well capable of being exceeded:

in a free country, on a charge of the most and, all he has convinced me of, is, that

disputable of all crimes, which is at most " there is nothing so bad, but some manor

but a misdemeanor; when too, however other, for the present penny, may be found

apparently libellous the words might seem hardy enough to undertake either the exe

without daors, perhapt (to borrow a com- cution or the defence of. When 1 hear a

tnon word with the attorney) no man man call an actual arrest of a member of

would fay, they would bavebten deemed liiel- parliament, on the mere charge of a libel

foul, bad they keen uttered by any member in bit '* ojjicio, and the seizure oi his papers, "a

place xiritbin dton, since the memorable cafe "phantom of imagination ;" and remem

ofthe five members. TM ber to have heard the fame man declare at

A» to the instances quoted and ridiculed his outset upon this question to a very by the attorney, it seems to me that they great assembly, "that tie had long been a directly apply to the main hinge of the "member of it, but had rarely attended, dispute. The four cases are perfectly ap- "because he did not think it -wcrtl his pofite to the great question ol parliaments "while before, having more valuable bufiinterposing by resolution, where the known "ness elsewhere;" and recollect scarcely law has been broken by the hand of power. Q ever to have seen him in that assembly, or And, 1 should think too, that isa cafe con- at least to take any part in it, except when fists of four points, arid a precedent can be the confirmation of "another pillar of the found for each point, that cafe would be "constitution, the iljbeaiCrpui law," was fully proved by those four precedents, ac- in agitation, and that he then gave an earcording to my notion of logic. At least, a nest of his patriotism by being the chamman who denies the reasoning on this he;id, pion of the opposition toil ; when all this has no right to accuse his antagonist of 1 fay, presents itftlf to my mind, I want "unfairness and quiblin*," as the attor- u nothing moie for forming a decisive opinion pey does throughout; and, from what I of the attorney as a public man. By cal

fee of his performance, (hould therefore ■ ■ ■ '

imagine lie could only Jo to in order to • Several are previously quoted by the au

soreftall the charge, an'l io prevent its be- thor, that sre incontrovertible, which we o

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On Libels > Warrants, and the seizure of Papers. 2$

ling him' the champion, I do not mean to forget, that a certain candid lawyer united his best endeavours to strangle this Habtat Corf m bill ; but then, he did it in so delicate and qualified a manner, that surely he cannot expect to have bit pass for a firstrate part upon the occasion. Ticklish ^ times or political struggles always bring to light the real abilities of men, and let one fee whether a man owes his reputation and rank to family, learning, and an attention to please; or to real great parts, a found judgment, and true noble spirit. People of the latter class, become for ever more considerable by opposition j whereas B the former by degrees sink to common men in it, and mould therefore never quit for one moment a court, or, if by connection and chance they are obliged so to do, should return to it again as fast as they can.

Being one of those men, who think that "the heart blood of the commonwealth "receives life from the privilege of the C *' house of commons,* that is, in all matters where a dispute is likely to lie between the crown and the people, I cannot help noticing any the least incident that seems to me to break in upon it at all, and endeavouring from the conduct of men, even in such little matters, to find out a clue that nay unravel their disposition in concerns ** •f much greater moment, not judging of politicians in the least, from the professions they make, but from their actions, at th« genuine expositor of their hearts. 'Universal civility and a smiling countenance, do not necessarily imply friendship and sincerity, or candid discourse a real disinterestedness j and I have remarked that ** where a desire of pleasing others operates more strongly than the desire of doing what if right, men now and then (lip into strange absurdities. They betray tac true bottom 01* their conduct, when they least intend it. No training or ecSocation willenablca little mind intirely to hide its littleness. Indeed, — too much respect cannot be shewn to the crown by any man as an individual; but, it ill suits with the duty of representatives to be swayed, by any motives of personal respect, to part with a jot of their own in* dependency and dignity in their corporate capacity. I do not, however, mean to say, that such men may not be of use about a _, court; hut, being formed in a prerogative mould, they can never be brought to act fairly by the people, for they cannot find an their hearts to speak what may be capable of the least interpretation to their disadvantage, and every now and then will drop such expressions of candor and moderation, and so qualify what they say, for rfce sake of being civilly reported elsewhere, H Chat they enervate all opposition. Being am old fellow, and recalling to mind the ayiUex guise spirits that struggled first for' "j and whan that proved

impracticable, still went on, and at last, brought about the glorious revolution j I fancy I hear old Britannia call out to these tame, temporizing spirits, these scholars of mere worldly caution and ceconomy, these Htmavrhn tories i You do me more barm than good upon every real trial; yourparts are not extraordinary, nor your learning singular; your speech is long, but neither forcible or persuasive, and you have not a grain of true patriotic resolution: "Law "in such mouths is, in fact, like a sword "in the hand of a lady, the sword may be "there, but, when it comet to cut* "it it perfectly aukward and useless;" depart in peace, leave me to myself, and return whence you came; I never asked your assistance, and had been better with* out it.

There is of late such a lack os what are called public men, that lam persuaded there arc many gentlemen who would deem Luki on government a libel, were it now published for the first time. The Tory doctrines seem to be establishing themselves every day; and Tories spring; up every hoqr, like toadstools in the toot of an old oak,' that is sprinkled by accident with a little water. I really shall not wonder soon to hear hereditary right talked as again, and then it ia but otic step more to the old doctrine of jut divinum, and passive obedience. Now, 1 chuse to have hie Majesty's throne remain fixed upon it* only solid foundation, an act of parliament. I desire to steer thro' the temperate channel of a Ural constitution. I am jealous I confess, of all innovations, and heartily wish the present constitution may last; without going so far at a late great Financier, who is reported in his very last moments- to have said, "for Cod's fake. "let my son have a tutor who is a gen"tleman and a scholar, and above all "things a true whig: This poor country, *' I am afraid, will be over-run with To"riet, Stttjmun and Jacobites." Now, altho' I am persuaded that gentlemen of the last description, should they change their idol, yet will never quit idolatry itself, but transfer their prostrate worship, and implicit adoration, to the golden inja.e they adopt; yet I fear them not, in ttu> kingdom, at least, under the present sovereign, who iad>y all men most justly esteemed for the excellence both of his public aod private character in war and peace.

Of this, however, I think every £>;bjbman may be assured, that the two real pillars of our constitution are parliament* and Junes, and that, in order to be what they ought to he, the former must be independent of the crown, and the latter at the judges.

I have thrown out my loose thought* sram a true constitutional regard for hiMajecty, whose uowa can never sit

when his people are discontented; and if, the suggestion or motion os any man, who

where all men allow the grievance, no re.- should only say, that he believed hit friend

medy is applied, lam really afrailtbat might he (hut up in such a place, and that

the time may come, which a great orator it Wjs impossible for him to have admission

once painted, when his M .jelly will not to ascertain the fist. • .. . i

fee able to sleep at St James'a for the cries . I hope we (hall never fee any chief jus

of his injured people. A tice, especially in that great court of cri

The attorney, indeed, allows the people, minal process, the Atib/'i Bench, who (hall

in general, were very uneasy and alarmed; deny, or delay, the ilfuim; one of thefe

but then he declares, that, till lie had in- writs to any man who appue» for it, being

formed hiniicit better, he "expected to a writ c fright to vrK wh the sul.ject is ire

'• hear a tegular system laid open, by tilled for a!kin£, without any affidavit

** which an arbitraiy administration had whatsoever. In many cases, as, for exarh

*• endeavoured to overthrow the bulwark ,ple, in t'lat of dole confinement, it maybe •• of our liberties; that the privilgri us B impossible for the pany either to speak to

** parliament had been daringly violated; -a Iriend, send a letrer,or make an affidavit,

*' that some inr.uvaiioi.s had been atteoipt- and consequently, if either be required by

•* ed to annihilate Magt.j Cbana, the Ha, rhecourt, it will be a virtual denial of the •f bias Corpus, or some oilier pillar ot the' writ, and a means of deflating the Habeat

"constitution j in (h»rt, that feme man Corpus ad. An application to the King's

"had been oppressed by aihitrary vin- Bench for an Habeas Corpus in term-time,

•' lence, tyranny, and persecution." (His used to be esteemed, 1 remember, a meie expression indeed is, innocent man, but I Q motion of couife. "Our inheritance lj

bave left out thrt word as perfectly unnt- "right of process of the law, as well as in

ceflaty, because a man in this country ia "judgment of the law." The condition

deemed innocent till he is proved guilty by of the subject would be still worse, if any

due course of law.) Now, 1 need fay no- chief justice, instead of granting the writ

thing more upon the case of the man he prayed for, should force Hio pany into the

points to, than I have done already; but, taking of a rule upopirt? imprifoner, to

as to the other parts of law which he men- shew cause why he detained the person tions, I will very frankly tell him some few £) imprisoned; and this last miserable remedy

of my thoughts j without launching out would still be rendered left adequate, if the

into all that the subject or the times fug- person applying was obliged to give notice

gest. . of such rule to the solicitor of the treasury,

1 hive ever regarded the Habeas Carpus, a» well as to the person imprisoning; and

as the ureat remedial writ for the delivery even this again would be still made more

cf a freeman from unjust imprisonment, grievous, tedious, and' precarious, if the

iridevv-n from j.st imprisonment in every judge should be critical upon the affidavit bailable case. For which reason 1 hope E of the service of notice, and be extremely

never io lee mch a writ trilled with; and. rigid in its being most punctually let forth,

rliat if any lawyer should advise an officer in every the minutest circumstance. What

t)f state to make a fallacious return, by a noble si.Id for delay, evasion and rinaj

fayin< the fr.jer.cr was net in bit custody, when disappointment, would this open to every

in truth lie had been stized by his order, commuter of violence; and how easy

and in his hands, and was but just gone would it be, in the mean time, to dodge the

from thence, by bis having sent him to man imprisoned from place to place, and iii.fe coiitinemtn;, where no person could F from lu'nd to hand, so as to render it ut

airerwards poslibly get at him, in order to tcrly impracticable for any friend to pro*

ground an application for a second Habeas cure his enlargemt nt A bold and daring

Corpus, I should hope to lee the vengeance minister, muru thus easily transport a

os parliament, so soon as the fact was troublesome piating fellow, to either India,

Inown, lay huld of such lawyer, and by long before any cause could be shewn upon

»ts order commit his body to the same sort such a rule.

t,f durance, and then come toa resolution, Q Whilst our laws continue unprofaned,.

that such return was a deliberate mockery lawyers will of course be considerable,

ef;ustrce, and a most audacious perversion their pr* session honourable. But when

cf thegreatlaw if Hub.Corpus, and makethe Civil liberty dies, by lo.eign or domestic

lame the groundwork for a new declaratory invasion, the vocai.cn os a lawyer will

and explanatory act, compelling the man soon become equally mean among us, to

who was served with the writ, to set (ortlt what it actually is now in all foreign coun

v hat he I ad done with the prisoner, or what tries, where the monarch by the fwoid

was become cfliim, if he hai at any time and the army lays down his will for law, fccen in his custody, and happened not to Jj and breaks ihiough (he forms of courts

fee/b at the'time that the wtit was served and their rules of justice whenever he

liptm him; and likewise compelling a pleases. The true language in ibis coun

"iu"1y,e (as I..me son of remedy atcainlt chjjt tiy is that of a late famous minister, who

a.n'hr,»mi;nt', to award a lUi.ai Ci'ils uooa said he would have it bo known thtouithouc

The Law if Jurits and Libels, 25

his majesty's dominions, that all men were Considerations on the Legality of General still 10 be subordinate to the civij power. Warrants bat appeared; in a postscript to For which reason no greater misfortune wbicb, the Author who it no ordinary writer, an befall a nation than to ha*e a versatile, "bet upon him to set the doctrine of junet and temporizing, unprincipled grand justiciary, tilth in a quite different light, What he bat nor any more general blessingthan an able, Jtid in qjtfwer to the defence of the Minority, uniform, firm, and incorruptible chief mufti* referred to another month; hut what justice. The goodness of his present nu- A be bat added on the two important beads jfst jesty will prevent any great excess in his mentioned, take aifolkrut:] time j but who can answer fur his succes- JlssAny of the notions and observations in sors? It will not be difficult, when once this b< o>, fays the author ot the Confide

the law can be rendered subservient to a rvtimt, might be just, if the enquiry was, ministry, for any cunning and selfish prince what ought to be the law on those subto find out a solicitor for his treasury, an j'cts ■' yet they are totally without foundaattorney general for himself, and a chief JJ t'on, as applicable to that which the wifjustice for England, who lhall devise means domof our ancestors has transmitted to us, for grinding the lace of the subjects. * which is, at this day, the law of the, land.

It is an inglorious, a disheartening, and With respect to the rights of juries, the

a disadvantageous thing, to have a success- writer of the letter on libels, &c. lays it ful war followed by an inadequate or in- down as a mrxim, that they are judges of secure peace; but, tN preservation of con- law at well as fact ; to which I answer, quests is not by any means of so home a p that it is an undoubted maxim, that the concern t« any common health, as the ^* jury is the sole judge of all matters of fact j preservation of its constitution. Breaches »nd so far as to determine on the fact, it of the latter, are the most melancholy and ■* necessary also to pronounce on the law. fatal forerunners of absolute slavery and The old rule'of law, therefore, quod ad ruin. And nothing can aggravate the mi- fiutfticmem facti respondent juratores, ad queefseryof such a view, but to see the same tismemjurit respondent judices, mustofnecesmen the invaders of domestic liberty, who flty contain that exception: Thus, when have been the ceclersof foreign acquisitions. D* )ury finds a man guilty of murder, or of The attorney himself has forced me v< a libel, they pronounce him gulty of that these reflections, for he concludes with fact which the law calls a murder or a libels intimating, that we are" threatened with • That beyound those bounds, the jury have "evils, which our united strength can nothing KKdo with the law, is a propo"scarce avert;" by which he must mean fition almost self-evident from the nature another war. No*", rs this, be so, I am of it, and which has been the constant dooheanily sorry for it, fiom the bottom of trine of all the judges and sages of the my foul, and do theiefore most sincerely n '*w from the earliest down to the latest

concur with him in asking "In this times.

"i.tuation, is it a time for private jea- Agreeably to this it is that the oath of

"lousies and private interests to consume she jurors is, that they will well and truly '• the interval that peace affords us! to try, and a tnt verdict give, according to tbe "sow the feeds of diffidence; to revive evidence; they are not sworn, therefore, to "the distinctions of party; and wantonly anything but what appears in evidence *' to sound the alarm of pn'viledgt and pre- before them; so that whatever is not "rxgativtr"' In my conscience it is not, p matter of evidence is not within the oath, and what minister* can mean by so doing, 'nfl> consequently, not within the duty of if they really intend the service of their jurors.

royal master, I cannot conceive. 1 vow . In those very cafes, where, to determine

to Cod I am astonished at it! upon the fact, they must necessarily pro

Mor should I have thought essaying one nounce upon the law, they are not at li

halsso much upon the subjects of this let- berty to form a judgment of what is the

ter, were it not to v - licate trie laws and law from any notions of their own. It is

the constitution from the attack made the duty of the jud^e to declare to them

upon both by The Defence of tbe Majority. Q what is the law. He is to them lie voict

The main intent of which is, " a plot and nftbe low itself'; it is their duty, therefore,

"practice, to slier and subvert the frame lo receive the law implicitly from the judge,

"and fabric of this commonwealth. He tnd adapting that to the fact to pronounce

"labours to ir, fuse into the conscience of accordingly; if they have any doubt with

"his majesty, the persuasion of a power respect to the truth of those directions,

*' not bounding itself with laws. He en- they are at liberty to take the matter ouc

"deavours to persuade the conscience of of the haods of trie judge, and by ajfifial

"the subjects, that they are bound to obey ^.verdiO to carry it for full argument, and ma

"commands illegal." "ture deliberation, before the nnrti of law.

[Since the publication of the pamphlet from I cannot therefore approve of any in

.; lie frtgomg fagtt are extracted, stance where the jury, contrary to the di

Gent, Mdg. Jan. 1785.- r»ction»-of the judge to..point of laWj pro

D neunces

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