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the house had done. And then even this judgement might have been carried" by "appeal to the Lords, who in their judi "cial capacity might think fit to declare

the legality of" the paper in question, "to confirm the practice" of difcuffing without doors the truth of the fpeech from the throne, and to affirm the judgement, of the King's Bench. Notwithstanding therefore, this matter was in a way of trial below, and notwithstanding the Lords, both as a house of parliament and a court. of judicature, might have differed from the commons, yet they determined both the law and the fact; without being afraid as the attorney is for them "either that the "courts of law must be divided and con"founded in their opinions, or that the "dignity of the house of commons must "fuffer in the neglect and contempt of "their refolution." According to the attorney's doctrine, a house of commons should not venture to declare that two and two make four, before a court of law has told them fo. But, this has never been their practice. They have even come to a refolution in point of law, contrary to the judgement of a court of law, and to the opinion of ten out of twelve judges*.

As to what he has faid with regard to

the infignificance of a mere refolution of the

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the legality of the proceeding. When the honourable Alexander Murray was fo committed, a late great patriot, Sir John Phi lips, put on his gown, and came into the court on purpose " to make a motion," as he phrased it," in the cause of liberty," and prayed a Habeas Corpus for the faid Mr Murray; which was accordingly granted of courfe. The caufe of his impritonment, returned by the goaler, was only an order of the house of commons, without any crime alleded. The judges faid they could not question the authority of that house, or demand the cause of their commitment, or judge the fame; and therefore refufed to discharge the prifoner, mangre all the patriot's arguments to the contrary, and fo remanded him.

The attorney, however adds, that even the refolution contended for would have been of no utility, because it might have been easily evaded: And then ftates two C or three cunning devices as "evaliong "which he conceives would fruftate the "refolution, and confequently render it, "in effe, no fecurity at all." A change of a word only in the "torm, he fays, would "fubject us to the fame evil." To evince this, he fuppofes a fecretary of state was to grant a particular warrant, deDfcribing the perfon, for the feizing the

house of commons, I do recollect that fo-neth ng of a like fort, was flung out by one learned gentleman, who, indeed, closed the whole of his argument on this point, by faying, that had he the henour of prefi"ding in any court of law, he should re"gard fuch a refolution no more than he "would that of fo many drunken porters "in Covent Garden." It would not, perhaps be a judicial deter nination of the "law, which might be pleaded in a court "of judicacure, and would only be a de-. "claration of the fenfe of the law" by all the commons of England. And, without doubt, if the refolution of one house would be of no weight with this gentleman, the refolutions of both houses would

be of none. Nothing but the concurrence of king, lords and commons will do for him. And yet, I dare fay, he would be contoundedly fright ned with a fingle vote of her house, thould be live to experi

ence it.

The parliament was, I know, anciently called, commune confilium regni, communis reipubica jponfio. And I cannot even yet regard a refolution of the commons, in the fame light with the a'torney, as a mere amufement;" because, if by virtue of any resolution of theirs, whether the fame may be picaded in a regular plea or not, a man be committed to Newgate, the court of King's Bench will never venture to question

*The great caufe of flampden against the crown about this money.

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papers; and a general warrant for ap "prehending the authors, printers and "publishers:" and thereupon (ays," he "hould be glad to know whether either ❝ of thefe warrants would fall under

this refolation ;* and then, taking advantage of the ground he has got, rifes in his demands, and ventures to ask. "Whether, if the words treasonable "practices were inferted (and endeavour

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ing to excite to treafon, he should fuf

pect to be a treasonable practice) a ge"neral warrant might not, in that cafe, "pals uncenfured, including both perfons F "and papers?". Now, I will fairly tell him my thoughts of the matter. Had the refolution been agreed to, on purpose ro exprefs the indignation of the house against the outrage, in order to deter all men from doing the like for the future, hardy as the attorney is, I believe, he would not venture, on any quirk grounded in the change of a word, to have attempted aught against the fpirit or words of the refolution, by the seizure of any member, or indeed, of any man; or, if he did, that the vengeance of the houfe, which he had fo trifled with, would have fwiftly purlued, overtaken, and punished him.

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franchise of the fubject has been broken, Where the birthright and immemorial why should not the commons, when affenibled, come to a refolution; after a complaint made to them, the lact appient, the law certain ?

What thould make a free,

conftitutional

and

22

On Libels, Warrants, and the Seizure of Papers.

and independent part of the legislature,
when apppealed to by one of its own
members, refuse to come to a decifive re-
folution in favour of their own and every
other Englishman's boasted inheritance ?
The point was fo great, that never were
the eyes of mankind more fixed upon their
never faw
reprefentatives. Indeed, I
more flir in the house itself, every body
the
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preffing his friend to stay and vote
fecretaries of the treasury, and other men
of confequence, were remarkably active;
she crowd and agitation of people about
the houfe was inexpreffible; fubftantial
old citizens, who could not fleep from
concern, stopped members as they paffed
in their chairs, to know the event; in
fhort, the face of mankind could not thew
more diftrefs, if the constitution had been
actually giving up to a Stuart, in one of
its most effential and vital parts, by a Tory
and paffively obedient parliament. And
why no refolution was come to on this
great and important occafion, I never
could learn, and am curious to know: I
conjure, therefore, those who do know, to
give the public their reasons for the fame.

What "neceffity of peculiar circum-
"Atances," the attorney may think there
fhould be "abfolutely to require their
"interpofition," I know not; but I
hould imagine thefe few circumstances
would be fully fufficient; namely, that
the act complained of was committed in
time of public tranquility, without a co-
lour of law, by a king's minister, upon
one of the reprefentatives of the people,"
in a free country, on a charge of the most
difputable of all crimes, which is at moft
but a misdemeanor; when too, however
apparently libellous the words might feem
without doors, perbaps (to borrow a com-
mon word with the attorney) no man
would fay, they would have been deemed libel-
tous, bad they been uttered by any member in his
place within doors, fince the memorable cafe
of the five members.

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Precedents of the conduct and interpo-
fition of the commons under the house of
Stuart, both father and fon, with respect
to the law of this kingdom, when invaded
by great officers of ftate, are innumerable;
and yet thefe were princes who claimed a
right of governing the kingdom, para-
mount the laws, jure divino; whereas it
is the honour of his present majesty's fami-
ly to derive their fole title from the choice
of the people, from an English act of par-
liament. There is not, therefore, the least
divinity that can now be poffibly imparted
from the throne to any of the present minif-
try; they are mere men and creatures of
civil polity, and their actions may be judg-
ed by the common law of the land, without
either blafphemy, or any extraordinary or
occafional statute for the purpose.

This being fo, I am amazed that the attorney should think a bili neceffary; becaufe, if there be no law now existing, that authorizes general warrants in any cafe whatever, it really feems to be ridiculous to bring in a bill to regulate what does "not exist," an argument, I find, which he affects not to comprehend, merely because he is unable to answer it.

The attorney (eems to think, he has fo fufficiently defended the majority, that he may fwagger a little, and therefore aiks, Is this all that you bave to complain of? I really thought you could bave made out a more moving tale? What is capable of moving him, I know not; but I can affure him, that peoplé in general, think the plain story so bad, it is not well capable of being exceeded: and, all he has convinced me of, is, that there is nothing fo bad, but fome man or other, for the present penny, may be found hardy enough to undertake either the execution or the defence of. When I hear a man call an actual arreft of a member of parliament, on the mere charge of a libel ex officio, and the feizure of his papers, "phantom of imagination ;" and rememFber to have heard the fame man declare at his outlet upon this question to a very great affembly, "that he had long been a "member of it, but had rarely attended, "because he did not think it worth his "while before, having more valuable busi"nefs elsewhere;" and recollect fcarcely Gever to have seen him in that affembly, or at least to take any part in it, except when the confirmation of "another pillar of the "conftitution, the Habeas Corpus law," was in agitation, and that he then gave an earneft of his patriotifm by being the champion of the oppofition to it; when all this I fay, prefents itfelf to my mind, I want

As to the instances quoted and ridiculed by the attorney, it feems to me that they directly apply to the main hinge of the difpute. The four cafes are perfectly ap pofite to the great queftion of parliaments interpofing by refolution, where the known law has been broken by the hand of power. And, I thould think too, that if a cafe confifts of four points, and a precedent can be found for each point, that cafe would be fully proved by thofe four precedents, according to my notion of logic. At least, a man who denies the reasoning on this head, has no right to accufe his antagonist of “unfairness and quibling," as the attor-nothing more for forming a decifive opinion ney does throughout; and, from what I fee of his performance, thould therefore imagine he could only do to in order to forestall the charge, and to prevent its being applied to himfelt. See Fol.xxxiv.p.439.

of the attorney as a public man. By cal

Several are previousy quoted by the author, that are incontrovertible, which we omit for want of room.

ling

ling him the champion, I do not mean to forget, that a certain candid lawyer united his beft endeavours to ftrangle this Habeas Corpus bill; but then, he did it in fo delicate and qualified a manner, that furely he cannot expect to have bis pafs for a firstTicklish rate part upon the occafion, 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 pleafe; or to real great parts, a found judgment, and true noble fpirit. People of the latter clafs, become for ever more confiderable by oppofition; whereas the former by degrees fink to common men in it, and fhould therefore never quit for one moment a court, or, if by connection and chance they are obliged fo to do, should return to it again as fast as they can.

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impracticable, ftill went on, and at last, brought about the glorious revolution; I fancy I hear old Britannia call out to thefe tame, temporizing spirits, these scholars of mere worldly caution and œconomy, thefe Honaurian tories: You do me more harm than good upon every real trial; your parts are not extraordinary, nor your learning fingular; your fpeech is long, but neither forcible or perfuafive, and you have not a grain of true patriotic refolution: "Law "in fuch mouths is, in fact, like a fword “in the hand of a lady, the sword may be "there, but, when it comes to cut, Bit is perfectly aukward and useless;* depart in peace, leave me to myself, and return whence you came; I never afked your affiftance, and had been better without it.

Being one of thofe men, who think that "the heart blood of the commonwealth "receives life from the privilege of the C "houfe 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 leaft incident that feems to me to break in upon it at all, and endeavouring from the conduct of men, even in fuch little matters, to find out a clue that

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may unravel their difpofition in concerns
of much greater moment, not judging of
politicians in the leaft, from the profeffi-
ons they make, but from their actions, as
the genuine expofitor of their hearts.
Univerfal civility and a fmiling counte-
nance, do not neceffarily imply friendship
and fincerity, or candid difcourfe a real
difintereftedness; and I have remarked that E

There is of late fuch a lack of what are called public men, that I am perfuaded there are many gentlemen who would deem Locke on government a libel, were it now published for the first time. The Tory doctrines feem to be eftablishing themselves every day; and Tories (pring up every hour, like toadstools in the soot of an old oak, that is sprinkled by accident with a little water. I really fhall not wonder foon to hear hereditary right talked of again, and then it is but one step more to the old doctrine of jus divinum, and paffive obedience. Now, I chufe to have his Majefty's throne remain fixed upon its only folid foundation, an act of parliament. I desire to fteer thro' the tempe rate channel of a legal conftitution. I am jealous I confefs, of all innovations, and heartily with the prefent conftitution may laft; without going so far as a late greas Financier, who is reported in his very la momen to have faid, "for God's fake, "let my fon have a tutor who is a gen

tleman and a fcholar, and above all "things a true whig: This poor country, Fries, Scot/men and Jacobites." Now, "I am afraid, will be over-run with To

where a defire of pleafing others operates more strongly than the defire of doing what is right, men now and then flip into strange abfurdities. They betray the true bottom of their conduct, when they leaft intend it. No training or education will enable a little mind intirely to hide its littleness. Indeed, too much refpect cannot be shewn to the crown by any man as an individual; but, it ill fuits with the duty of representatives to be swayed, by any motives of perfonal refpe&t, to part with a jot of their own in dependency and dignity in their corporate capacity. I do not, however, mean to fay, that fuch men may not be of ufe about a court; but, being formed in a prerogative mogld, they can never be brought to a fairly by the people, for they cannot find in their hearts to speak what may be capa ble of the leaft interpretation to their dif advantage, and every now and then will drop fuch expreffions of candor and moderation, and lo qualify what they say, for the fake of being civilly reported elsewhere, H that they enervate all oppofition. Being an old fellow, and recalling to mind the other guife fpirits that ftruggled firft for an exclusion bal, and when that proved

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altho' I am perfuaded that gentlemen of the Laft defcription, fhould they change their idol, yet will never quit idolatry itfelf, but transfer their proftrate worship, and implicit adoration, to the golden image they adopt; yet I fear them not, in this kingdom, at least, under the present fovereign, who is by all men most justly esteemed for the excellence both of his public and private character in war and peace,

Of this, however, I think every Englibman may be affured, that the two real pillars of our conftitution are parliaments and juries, and that, in order to be what they ought to be, the former must be independent of the crown, and the latter of the judges.

I have thrown out my loofe thoughts from a true conftitutional regard for Majesty, whofe crown can never fi

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when his people are difcontented; and if, where all men allow the grievance, no remedy is applied, I am really afraid that the time may come, which a great orator once painted, when his M.jefty will not be able to fleep at St James's for the cries. of his injured people.

The attorney, indeed, allows the people, in general, were very unealy and alarmed but then he declares, that, til he had informed himself better, he "expected to

hear a regular fyftem laid open, by which an arbitrary administration had "endeavoured to overthrow the bulwark

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"of our liberties; that the privil ges of В "parliament had been daringly violated;

that fome innovations had been attempt"ed to annihilate Magna Charta, the Har **beas Corpus, or some other pillar of the "conftitution; in hert, that fome man "had been oppreffed by arbitrary vio

lence, tyranny, and perfecution." (His expreffion indeed is, innocent man, but I c bave left out thrt word as perfectly unneceflary, because a man in this country is deemed innocent till he is proved guilty by due courfe of law.) Now, need fay no. thing more upon the cafe of the man he points to, than I have done already; but, as to the other parts of law which he men. tions, I will very frankly tell him fome few of my thoughts; without launching out into all that the fubject or the times fuggeft.

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I have ever regarded the Habeas Corpus, as the great remedial writ for the delivery of a treeman from unjuft imprisonment, and even from juft imprisonment in every bailable cafe. For which reafon I hope E never to fee fach a writ trifled with; and that if any lawyer should advife an officer of state to make a fallacious return, by faying the prifoner quas not in bis cuftody, when in truth he had been feized by his order, and in his hands, and was but just gone from thence, by bis having fent him to elefe continement, where no perfon could afterwards poffibly get at him, in order to ground an application for a fecond Habeas Corpus; I thould hope to tee the vengeance of parliament, fo foon as the fact was known, lay hold of fuch lawyer, and by its order commit his body to the fame fort of durance, and then come to a refolution, G that fuch return was a deliberate mockery ef justice, and a moit audacious perverfion of the great law of Hab, Corpus, and make the fame the groundwork for a new declaratory and explanatory act, compelling the man who was ferved with the writ, to fet forth what he had done with the prifoner, or what was become of him, if he had at any time been in his cuftody, and happened not to be fo at the time that the writ was ferved Upon him, and likewile compelling a judge (as fome fort of remedy againit claje confijement) to award a Hubcus Corpĝli upon

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I hope we shall never fee any chief juftice, especially in that great court of criminal procefs, the King's Bench, who shall deny, or delay, the iffuing one of these writs to any man who applies for it, being a writ of right to which the fubject is intitled for afking, without any affidavit whatsoever. In many cafes, as, for example, in that of close confinement, it may be impoffible for the party either to speak to a friend, fend a letter, or make an affidavit, and confequently, if either be required by the court, it will be a virtual denial of the writ, and a means of defeating the Habeas Corpus act. An application to the King's Bench for an Habeas Corpus in term-time, uled to be esteemed, I remember, a mere motion of courfe. "Our inheritance is "right of procefs of the law, as well as in "judgment of the law." The condition of the fubject would be still worse, if any chief justice, instead of granting the writ prayed for, fhould force the party into the taking of a rule upon the imprisoner, to fhew caufe why he detained the perfon imprifoned; and this last miferable remedy would ftill be rendered lefs adequate, if the perfon applying was obliged to give notice of fuch rule to the folicitor of the treasury, as well as to the perfon imprisoning; and even this again would be still made more grievous, tedious, and precarious, if the judge fhould be critical upon the affidavit of the fervice of notice, and be extremely rigid in its being most punctually fet forth, in every the minutest circumstance. What a noble field for delay, evafion and final difappointment, would this open to every committer of violence; and how eafy would it be, in the mean time, to dodge the man imprisoned from place to place, and from hand to hand, fo as to render it utterly impracticable for any friend to procure his enlargement. A bold and daring minifter, might thus eafily transport a troublesome prating fellow, to either India, long before any caule could be shewn upon fuch a rule.

Whilt our laws continue unprofaned, lawyers will of courfe be confiderable, their profeffion honourable. But when Civil liberty dies, by foreign or domeftic invafion, the vocation of a lawyer will foon become equally mean among us, to what it actually is now in all foreign countries, where the monarch by the fword and the army lays down his will for law, Hand breaks through the forms of courts and their rules of justice whenever he pleases. The true language in this country is that of a late famous minifter, whe faid he would have it be known throughout

his majesty's dominions, that all men were
ftill to be fubordinate to the civil power.
For which reafon no greater misfortune
can befall a nation than to have a versatile,
temporizing, unprincipled grand jufticiary,
nor any more general bleffing than an able,
uniform, firm, and incorruptible chief
juftice. The goodness of his prefent ma- A
jefty will prevent any great excefs in his
time; but who can answer for his fuccef-
fors? It will not be difficult, when once
the law can be rendered fubfervient to a
miniftry, for any cúnning and felfish prince
to find out a folicitor for his treasury, an
attorney general for himfelf, and a chief B
juftice for England, who shall devife means
for grinding the face of the fubjects.

It is an inglorious, a disheartening, and a difadvantageous thing, to have a fuccefsful war followed by an inadequate or infecure peace; but, the prefervation of conquefts is not by any means of fo home a concern to any common wealth, as the prefervation of its conftitution, Breaches of the latter, are the most melancholy and fatal forerunners of abfolute slavery and ruin. And nothing can aggravate the mi fery of fuch a view, but to see the fame men the invaders of domestic liberty, who have been the ceders of foreign acquifitions;

Confiderations on the Legality of General Warrants bas appeared; in a poftfcript to which, the Author who is no ordinary writer, takes upon bim to fet the doctrine of juries and libels in a quite different light, What be bas faid in anfwer to the defence of the Minority, must be referred to another month ; be has added on the two important beads juft mentioned, take as follows:] MAny of the notions and obfervations in

but what

this book, fays the author of the Confiderations, might be juft, if the enquiry was, what ought to be the law on those subjects? yet they are totally without foundation, as applicable to that which the wifdom of our ancestors has tranfmitted to us, & which is, at this day, the law of the land.

With respect to the rights of juries, the writer of the letter on libels, &c. lays it down as a maxim, that they are judges of law as well as fact; to which I answer, that it is an undoubted maxim, that the C jury is the fole judge of all matters of fact; and fo far as to determine on the fact, it is neceffary alfo to pronounce on the law. The old rule of law, therefore, quod ad quæftionem fatti refpondent juratores, ad quœestionem juris refpondent judices, muft of neceffity contain that exception: Thus, when Da jury finds a man guilty of murder, or of a libel, they pronounce him gulty of that fact which the law calls a murder or a libel; That beyound those bounds, the jury have nothing to do with the law, is a propofition almoft felf-evident from the nature of it, and which has been the conftant doctrine of all the judges and fages of the law from the earliest down to the latest E times.

The attorney himself has forced me to thefe reflections, for he concludes with intimating, that we are "threatened with.

evils, which our united strength can "fcarce avert;" by which he must mean another war. Now, if this be fo, I am heartily forry for it, from the bottom of my foul, and do therefore moft fincerely concur with him in afking" In this "fituation, is it a time for private jea"loufies and private interefts to confume

Agreeably to this it is that the oath of the jurors is, that they will well and truly try, and a true verdi& give, according to the evidence; they are not fworn, therefore, to any thing but what appears in evidence before them; fo that whatever is not matter of evidence is not within the oath, and, confequently, not within the duty of jurors.

the interval that peace affords us to "fow the feeds of diffidence; to revive "the diftinctions of party; and wantonly "to found the alarm of priviledge and pre**regative" In my confcience it is not, and what minifters can mean by fo doing, if they really intend the fervice of their royal mafter, I cannot conceive. I vow. In those very cafes, where, to determine to God I am aftonished at it!

Nor should I have thought of saying one half fo much upon the fubjects of this letter, were it not to vlicate the laws and the conftitution from the attack made upon both by The Defence of the Majority. G The main intent of which is," a plot and "practice, to alter and fubvert the frame " and fabric of this commonwealth. "labours to infufe into the confcience of

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his majesty, the perfuafion of a power "not bounding itfelf with laws. He endeavours to perfuade the confcience of the fubjects, that they are bound to obey commands illegal."

[Since the publication of the pamphlet from oberce the foregoing pages are extrated, Gent, Mag. JAN. 1705. ·

upon the fact, they must neceffarily pronounce upon the law, they are not at liberty to form a judgment of what is the law from any notions of their own. It is the duty of the judge to declare to them what is the law. He is to them the voice of the lowo itself; it is their duty, therefore, to receive the law implicitly from the judge, and adapting that to the fact to pronounce accordingly; if they have any doubt with respect to the truth of thofe directions, they are at liberty to take the matter out of the hands of the judge, and by a Special Hure deliberation, before the courts of law.. verdiet to carry it for full argument, and ma

I cannot therefore approve of any inftance where the jury, contrary to the directions of the judge in point of law, proD

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