16. R. Whitefild, Esq; in Ironmonger-row. Walter Hammond. Efq; at Croydon. 17. John Vardy, Efq; clerk of the works at Chelfea-hofpital.

Wm Wynne, Efq; ferjeant at law. 18. Mill Bagfter, Efq; atA hton, Hertfordfh. 19. Wm Thomlinfon of Lincolnshire, Efa. Tho. Thornton, Efq; in Mark-land Lady Long at Bath, mother of Sir Robert Long, of Draycot. Wilts, Bart.

James Naifh, Efq; clerk of the treasury in the court of common pleas.

Major Frazer at Newcale

21. Arthur Afgill, Efq; at Warley, in Effex Lady Jane Murray, in New Norfolk-Areet. Mark Tooke of Oxfordshire. Eiq; 22. Mr Clark, one of the bridge mafters. Wm Willy, Efq; member for the Devizes. 23. Capt. Morrison, an officer at the battle of Dettingen.'

Capt. Hind, in the E. India fervice, at Efher 24. Geo. Willey, Efq; vinegar merchant, at Rotherhithe.

Lady Berney, at Hoddesdon, Hertfordshire. John Williamfon of Truro, Cornwall, Efq; M. Alexis Claude Claraut, at Paris; he was a member of every confiderable academy in Europe. (See p. 201.)

Lady Clifton at Chudleigh, near Exeter.
Allen Pincock, Efq; at Liverpool.

Lis of PROMOTIONS for the Year 1765. ORD Vife. Weymouth,-lord-lieutenant of Ireland.

With a Reprefentation of the Improvements in the Wheel Barometer; and a Perfpective View of the Chapel at Market Harborough, neatly engraved on Copper Plates.

By SYLVANUS

LONDON: Printed by D. HENRY, at St JOHN's GATE.

THE

Gentleman's Magazine;

For JUNE 1765.

Lord Chief Juflice PRATT's Argument on delivering Mr WILKES from the Tower.

OHN WILKES, Efq; was commit- A ted to the Torver by the Lords Egremont and Halifax, the two prin ipal Secretaries of State, for refufing to enter into a recognizance to appear before the Court of King's Bench; B and being brought into the Court of Common Pleas, by the Deputy Lieutenant of the Tower, upon an Habeas Corpus to him directed, the return was read, which Mr Serjeant Glyn (the defendant's council) prayed might be filed; was ordered accordingly; and then he took two exceptions, and fubmitted further, that the defendant being a member of parliament was entitled to his privilege, and ought for that reafon alone to be discharged.

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After folemn argument at the bar, and taken for confideration, the Chief D 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, council for MrWilkes, made two objections to it; and tho' thofe fhould fail him, he infifted that Mr Wilkes, from the E nature of his particular ftation and character, as being a member of the Houfe of Commons, was entitled to privilege of parliament, and ought for that reafon alone, to be difcharged from his prefent imprifonment.

To

begin with the objections. The first was, That it did not appear by the F warrant that Mr Wilkes food charged upon any evidence with being the author of the libel defcribed in the warrant. The true queftion arifing upea this objection is, whether flat

ing 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 Juftices of the Peace; they, no more than any common juftices, can iffue warrants merely ex efficio, er for offences within their private knowledge, being, in thofe cafes, rather witneffes than magiftrates; but tho' this be admitted, it will not affect the prefent queftion. 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 council to fhew it. Rudyard's cale in Ventr. 22. was indeed referred to; but upon examing that cafe, it does not apply. The commitment there was a commitment in execution, and therefore it was neceffary in that cafe to state the evidence. It was urged farther, that the ground of the justices jurifdiction refted in the charge by witneffes; and if it were otherwife, every man's liberty would be in the power of the juftices. The objection deferves an anfwer; and if it had not been determined before, I should have thought it very weighty and alarming; but it has been fettled. Before

I mention the cafe where it was folemnly adjudged, I would take notice, that neither Lord Coke, Lord Hale, nor 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 seven Bishops, tho' they were committed upon a fimilar warrant, their council did not take the fame objection. In referring to that great cafe, I am not to be understood as intending to give any weight to the determination of the judges who fat upon the Bench in that caufe: I rely only on the filence of the defendant's council, who were all of them

A

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ftated, we could have no other meafure of bailing than this; befides, there has been no case fhewn to warrant this reason, and it was not urged in the cafe of the feven Bifhops; but then it remains to be confidered, whether Mr Wilkes ought not to be dif charged; the King's Council 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 seven Bishops, the Court took notice of their privilege from their defcription in the warrant; in the prefent cafe there is no fuit de pending; here no writ of privilege can therefore iffue; no plea of privilege can be received; it refts, and must reft on the admiffion of the council of the crown; it is fairly before us upon that admiffion, and we are bound to determine it. In Lord Coke, 4 Inft. 24. 25. after fhewing that privilege of parliament is conulable at 'common law, he fays, that privilege generally holds, unless it be in three cafes, viz. treafon, felony, and the peace.

lovers of liberty, and the greatest lawyers of that age. We have seen 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, 555. Stra. 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. fect. 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 fet forth in bec verba; but upon that point too, we are all of opinion that the warrant is good. It was urged, that the fpecific caufe of the detention ought to C be ftated with certainty; and therefore, if a man be committed for felony, the warrant must briefly mention the fpecies of felony. Now the fpecies of every offence must be collected by the magiftrate out of the evidence, but he is not bound to fet forth the evidence, he is anfwerable D only for the inference he deduces from it. As to a libel, the evidence is partly internal and partly external. The paper itfelf may not be compleat and conclufive evidence, for it may be dark and unintelligble without the inuendos, which are the external evidence. There is no other name but E that of libel applicable to the offence of libelling, and we know the offence fpecifically by that name, as we know the offences of horse stealing, forgery, &c. by the names which the law has annexed to them. But two reafons were urged why the libel 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 li- G hel be stated, the Court cannot be able to determine on the quanity of bail. I answer, That regard to the nature of the offence, is the only neceffary rule in bailing. As to the offence of a libel, it is an high mildemeanor, and good bail (having regard to the quality of the offender) thould be required; but if the libel irself was

We

have not been able to have recourse to the original 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 Hen. VI. who being a member's fervant, and taken in execution for debt, was delivered by the privilege of the Houfe of Commons; the book adds (and for that purpose I refer to it) wherein is to be noted, that there is no cause to arrest any fuch man; but for treason, felony, and the peace. In the trial of the feven Bifhops, the words, "the Peace," are explained to mean "Surety of the Peace." In the cafe of The King against Sir Thomas Culpepper, reported in 12 Mod. 108. Ld Holt fays, that whereas it is faid in our books, that privilege of Parliament F was not allowable in Treafon, Felony, or Breach of the Peace, it must be intended where furety of the peace is defired, that it shall not protect a man against a fupplicavit, 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 confirullive, and not an actual breach of the peace, should not out him of his privilege; there is no difference between the two Houfes of Parliament in refpect of Privilege. The statutes of 12 and 13 Will. II. c. 3., and 2 and 3 Ás. c. 18.