124 JOHN WILKES. CH. IV. of opposition. The leader of the host of libellers was John Wilkes, a man of that audacity and self-possession which are indispensable to success in the most disreputable line of political adventure. But Wilkes had qualities which placed him far above the level of a vulgar demagogue. Great sense and shrewdness, brilliant wit, extensive knowledge of the world, with the manners of a gentleman, were among the accomplishments which he brought to a vocation, but rarely illustrated by the talents of a Catiline. Long before he engaged in public life, Wilkes had become infamous for his debaucheries, and, with a few other men of fashion, had tested the toleration of public opinion by a series of outrages upon religion and decency.* Profligacy of morals, however, has not in any age or country proved a bar to the character of a patriot. The favourites of the people seem to be chosen with as little regard to merit as the favourites of the Court; but in the one case they are commonly selected by caprice; in the other, they are almost always the accidental representatives of a grievance or a principle. The North Wilkes' journal, which originated with the administration of Lord Bute, was happily entitled Briton. The North Briton,' and from its boldness and personality soon obtained a large circulation. It I need only allude to the orgies of Memdenham Abbey, an old Monastic building on the banks of the Thames, where Wilkes and his friends assumed the habits of Franciscan monks, and amused themselves by a mockery of religious rites. It is said that they went through the form of administering the Eucharist to an ape. Sir Francis Dashwood, the late Chancellor of the Exchequer, was one of this party. The historian of the Roman Empire, who was his contemporary, thus speaks of Wilkes: He is a thorough profligate in principle, as in practice; his life stained with every vice, and his conversation full of blasphemy and indecency. These morals he glories in, for shame is a weakness he has long surmounted. He told us himself that, in this time of public dissension, he was resolved to make his fortune.'-GIBBON'S Miscellaneous Works. 1763. THE NORTH BRITON.' 125 is surpassed in ability though not often equalled in virulence by the political press of the present day; but at a time when the characters of public men deservedly stood lowest in public estimation, they were protected, not unadvisedly perhaps, from the assaults of the press by a stringent law of libel. While a latitude of invective, which the parliamentary decorum of the present time would not tolerate, was permitted and even encouraged by applause in the Great Council of the nation, the law of privilege, as well as the law of the land, was strictly enforced against a printer who should venture to divulge or comment on the proceedings of either House of Parliament. It had been the practice Criticism on the since the Revolution, and it is now ac- royal speech. knowledged as an important constitutional right, to treat the Speech from the Throne, on the opening of Parliament, as the manifesto of the minister; and in that point of view, it had from time to time been censured by Pitt, and other leaders of party, with the ordinary license of debate. But when Wilkes presumed to use this freedom in his paper, though in a degree which would have seemed temperate and even tame had he spoken to the same purport in his place in Parliament, it was thought necessary to repress such insolence with the whole weight of the law. A warrant was issued from the office of the Secretary of State to seize-not any person named -but the authors, printers, and publishers of the seditious libel, entitled the North Briton, No. 45.' Under this warrant, forty-nine persons were arrested and detained in custody for several days; but as it was found that none of them could be brought within · the description in the warrant, they were discharged. Several of the individuals who had been so seized, brought actions for false imprisonment validity of against the messengers; and in one of these general warrants. actions, in which a verdict was entered for the 126 ARGUMENTS USED CH. IV. plaintiff under the direction of the Lord Chief Justice of the Common Pleas, the two important questions as to the claim of a Secretary of State to the protection given by statute to justices of the peace acting in that capacity, and as to the legality of a warrant which did not specify any individual by name, were raised by a Bill of Exceptions to the ruling of the presiding judge, and thus came upon appeal before the Court of King's Bench. The case was argued on behalf of the plaintiff in error (the defendant in the action) by the Solicitor-General De Grey; and on behalf of the plaintiff below, by Dunning, one of the greatest Banc lawyers ever known in Westminster Hall. He showed that a Secretary of State was not a conservator of the peace within the meaning of any act of Parliament, and had no authority to issue a warrant for the seizure of persons and papers except in the case of high treason; and that even if he had such authority, the warrant under which the defendant justified, was altogether invalid. He argued if author, printer, and publisher,' without naming any particular person, be sufficient in such a warrant as this, it would be equally so to issue a warrant generally to take up the robber or murderer of such a one.' This is no description of the person, but only of the offence; it is making the officer to be judge of the matter in the place of the person who issues the warrant. Such a power, he contended, would be extremely mischievous, and might be productive of great oppression. He concluded by citing the principal text-writers on Crown Law to show 'that there must be an accusation; that the person to be apprehended must be named, and that the officer is not to be left to arrest whom he thinks fit.' 6 The counsel for the Crown seems to have made little more than a colourable show of maintaining the efficacy of the warrant, either as intrinsically good, 1763. BEFORE THE COURT. * 127 or as emanating from competent authority. He relied rather upon an inferior, but much more tenable position, that the officer, the defendant on the record, was at all events bound to act in obedience to his warrant, and was, therefore, justified in what he had done. An act of the last reign had given protection to officers for anything done in obedience to any warrant,' notwithstanding any defect of jurisdiction in the justice by whom it was issued. And it might well have been argued that the officer was not to concern himself with a question as to the legal sufficiency of the instrument which he was ordered to enforce; still less to raise a doubt as to the title of the great functionary from whom, in this instance, the authority proceeded. The Decision of the Court of King's Bench, however, intimated a King's Bench. strong opinion against the Crown upon the important constitutional questions which had been raised, and directed the case to stand over for further argument; but when the case came on again,† the AttorneyGeneral Yorke prudently declined any further agitation of the questions, and submitted to the judgment of the Court upon the bye-point that the defendants had not acted in 'obedience' to the warrant, inasmuch as the plaintiff did not come within the description of author, printer, or publisher,' therein mentioned. These proceedings were not brought to a close until the end of the year 1765, long after the administration under which they were instituted had ceased to exist. It would be unfair, however, to charge the Government over which Grenville presided with any design of invading the liberty of the subject by issuing this general warrant; since it was an unquestionable fact, and, indeed, it had been expressly found by the Bill of Exceptions, that several * 24 Geo. II. c. 44. 3 Burrow's Reports, p. 1706. 128 QUESTION RAISED ON PART OF THE CROWN. CH. IV. of the like warrants had been granted at different times, from the time of the Revolution to the present time, by the principal Secretaries of State, and had been executed by the messengers in ordinary for the time being.' Such a warrant might, therefore, have been issued in the ordinary course from the office of the Home Department, without any sinister design; but as there could be no question as to its illegality, it was the duty of the Crown lawyers to have withdrawn it, and made amends to the parties against whom it had been enforced, as soon as their attention was directed to the defect which rendered it a nullity. Nor was this illegal practice a mere topic for declamation. Such a power, as had been argued by Dunning, might be productive of great oppression ; and in this case had actually led to the apprehension and detention of a great number of persons who never could have been molested, had the process been confined to certain individuals against whom a probable cause of complaint could have been made out. The question really left The question of the validity of general warrants, though deliberately raised by the Crown lawyers in their Bill of Exceptions, was undecided. not decided, in consequence of the case being determined on another point. But no warrant of this description has since been issued; and no writer has since attempted to maintain the legality of such a proceeding. But the The prosecution of Wilkes himself was pressed with the like indiscreet vigour. The privilege of Parliament, which extends to every case except treason, felony, and breach of the peace, presented an obstacle to the vengeance of the Court. Crown lawyers, with a servility which belonged to the worst times of prerogative, advised that a libel came within the purview of the exception, as having a tendency to a breach of the peace; and upon this |