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must be called in. Some late statutes, however, (I should ju observe) in particular instances, have given a summary and final jurisdiction to Justices of the Peace, in matters of Excise, Game, &c. where the proceedings and decisions are arbitrary, vexatious, and partial enough I believe; but this does not reach to such a length, as to endanger, perhaps, the Constitution itself.'
He then remarks, that there is no offence which is oftener prosecuted by an inforination, ex officio, than a Libel : and he contends, that the exercise of such an unnecessary and grievous prerogative, lays a strong foundation for a Jury's retaining the privilege of determining both the Law and the Fact, with respect to Libels. He next shews, that by the law of the land they are entrusted with this privilege: and he observes, that it is now become more necessary than ever, that they should retain it, because it has been lately declared, that Privilege of Parliament does not extend to the case of a Libel.
< I had, says he, I must confess, been always in an error upon this head before, which I was led into by old cases. My notion was not lately taken up, in confequence of the construction niade of those old cases by the present Court of Common Pleas, in determining the same point, nor did I, indeed, entirely build upon my own construction of the matter; but I was fixed in the opinion by the authority of that great Lawyer Lord Chancellor Egerton, who, after having held the great seal for fourteen years, with greater reputation than any man before him, in a solemn argument, which he delivered in the case of the Poft-Nati, and which he afterwards published himself, upon a strict review, and with great deliberation, (so that it is uncontrovertibly his opinion) has laid down the same doctrine, and cites particularly the determination made by the Judges in the case of Thorpe. His Lordship there says,
" Then let us fee what the wisdom of Parliaments, in times past, attributed to the Judges opinions declared in Parliament, of which there may be many examples; but I will trouble you but with two or three. In the Parliament anno 31 H. 6, in the vacation (the Parliament being continued by prorogation) Thomas Thorpe, the Speaker, was condemned in a thousand pounds damages, in an action of trespass brought against him by the Duke of York, and was committed to prison in execution for the same. After, when the Parliament was re-afsembled, and the Commons made suit to the King and the Lords, to have Thorpe, the Speaker, delivered, for the good exploit of the Parliament; whereupon the Duke of York's Counsel declared the whole cafe'at large. The Lords demanded the opi
nion of the Judges, whether, in that case, Thorpe ought to be delivered out of prison by Privilege of Parliament: the Judges made this answer, That they ought not to determine the Privilege of that High Court of Parliament; but, for the declaration of proceeding in lower Courts, in cases where writs of supersedeas for the Privilege of the Parliament be brought unto them, they answered, That if any person that is a Member of Parliament be arrested, in such cases as be not for treason or felony, or for surety of peace, or condemnation had before the Parliament, it is used that such persons be released, and may make Attorney, so as they may have their freedom and liberty freely to attend the Parliament."
• Now what my reasoning from such premises must be, may be easily guessed. It was thus : Members are clearly intitled to Privilege in all misdemeanors, for which sureties of the peace cannot be demanded. But, sureties of the peace cannot be demanded but in actual breaches of the peace. The writing of any thing quietly in one's study, and publishing it by the press, can certainly be no actual breach of the peace. Therefore, a Member who is only charged with this, cannot thereby forfeit his Privilege. This was my course of argument. For, I thought that no common man would allow any quiet writing or publilhing, especially where extremely clandestine, to be in the Editor any breach of peace at all; and that it could be none but in Lawyers, who, on account of the evil tendency fometimes of such writings, had first got them, by construction, to be deemed so. Nevertheless, I had no idea myself, that it was possible for any Lawyer, however subtile and metaphysical, to proceed so far as to decide mere authorship, and publication by the press, to be an actual breach of the peace, as This last seemed to express, ex vi termini, some positive bodily injury, or some immediate dread thereof at least; and that, whatever a challenge, in writing, to any particular might be, a general libel upon public measures, could never be construed to be so. As this was inconceivable to me, and I knew it was not required of any one, in matters of law, to come up to the faith of an orthodox Divine, who, in incredible points is ready to say, Credo quia impofsible eft; so I believed as a Lawyer, that is, as my own understanding would let me. But, I now find, I have been all along my own dupe in the matter.
Indeed, I had originally conceived, upon a much larger scale of reasoning, that freedom from arrelt for Libel, was a privilege incident and necessary to a House of Commons, because it was a safe-guard against the power of the Crown, in a matter that was almost always a dispute between the Minister and the Subject, and no more than a natural security of person for
an independent part of the Legislature, of a Deputy and Embailador from the People, against the arbitrary proceeding of a King's Officer, in the least ascertained of all imputable offences. But this point has, I know, been lately cleared up to the contréry in St. Stephen's chapel, upon a debate of two successive days, the last of which continued from three in the afternoon till two in the morning. Nevertheless, the Commons of England at large, having come to no new compact or surrender of ancient privileges, ftill possess their old right of being Judges of the law in libel.
• I cannot help adding too, with regard to pledges for keeping the peace or good behaviour, that, in my apprehension, they are not demandable by law, in the case of any Libel, before conviction ; for this species of misdemeanor is only made a breach of the peace at all by political construction, nothing being an actual breach of the peace, but an assault or battery, the doing, or attempting to do, some bodily hurt: and for that Teason, articles of peace can only be demanded from a man, who by fome positive fact has already broke the peace, and therefore is likely to do so again; or where any one will make positive oath, that he apprehends bodily hurt, or that he goes in danger of his life from him. Surety, therefore, for the peace, is calculated as a guard from personal injury.'
Had not this point been determined by so solemn a Resolution, these arguments might certainly have carried with them great weight and authority. At the same time it must be observed, that it might, in many instances, prove highly injurious to the public, if so numerous a body were privileged in all cases, except actual breaches of the peace. Though it is true, that such privilege in the case of Libels, seems, of all others, the least likely to be of public prejudice. But non fic vijum Superis : and it does not become us to be wiser than our Betters.
In the ensuing pages, the Writer takes into consideration the proceedings had against Mr. Wilkes, on which he animadverts with great fpirit and propriety; and argues with irresistible cogency, against the legality of issuing general Warrants in any cases whatever. This leads him to take a retrospect of the memorable Debate in Parliament concerning such Warrants; he enters into the merit of the question, fand into the motives of the adjournment of it, with great freedom and acuteness : neither does he spare some distinguished characters, who figured on that occasion. After throwing out some keen reproofs against a great Lawyer, noted for candour and moderation, he adds—I fancy I hear old Britannia call out to thefe tame, temporizing Spirits, these Scholars of mere worldly caution and economy,
these Hanoverian Tories: “You do me more harm than good upon every real trial; your parts are not extraordinary, nor your learning singular ; you speech long, not forcible or perTuafive; and you have not a grain of true patriotic relolution: “ Law in such mouths is, in fact, like a sword in the hand of a Lady, the sword may be there, but, when it comes to cut, it is perfectly aukward and useless," depart in peace, leave me to myself, and, like Mr. Hide of old, return from whence you came , I never asked your affistance, and I had been better without it ;
Non tali auxilio, nec defenforibus iflis Tempus eget." ' A man may, in truth, write moderately and meritoriously, in behalf of Government, enforcing new laws of forfeiture on the subject, who never will, no more than any of his name, summon up resolution enough to speak plainly and boldly against a Court, at the hazard of all his interest in it, let Liberty in general be ever so much concerned, or his own fortune be ever so great, fo certain and independent.'
The Writer then steps aside, and after taking a view of some late proceedings on the Habeas Corpus act, which he cenfures with becoming severity, he closes this part of his subject with a number of curious and striking Ifs, which we do not think proper to transcribe; but which we recommend to the Reader's perusal. We cannot, however, pass over the following just and interesting reflections on the profession of the Law, lo far as it regards public Liberty.
• I know,' says this animated Writer, it is a common reproach to the profession, that there is generally as much wit used by Lawyers to pervert laws, as there is by the Legislature to frame them. This, however, is no reproach to the Bar, but is undoubtedly the highest imputation on the Bench. Nothing, indeed, induces me to dwell so much upon Lawyers, but a thorough conviction of the incapacity of other men to discuss points of civil polity; for which reason the great Lawyers have always been, and must ever be, the principal men in Parliament on constitutionable debates, which are the most material of all to the happiness of the subject. The Constitution, in truth, arises entirely out of the common law and acts of parliament, they constitute the bonds of society, and circumscribe both the Power of the Crown, and the Freedom of the Individual. It is the preservation of this system in iis due order, which must continue us Freemen; nothing else can. And such a horror have I of the introduction of any new criminal law into this country, that, were it to happen, rather than submit thereto, I should be even
for accompanying a noble Law-Lord to ultima Thule; which, by the shiver with which he spoke it, I guess must be Scotland, the very northern scrag, or bleakest barebone of the land. A man would Ay any where in such case. Whilft our laws, however, continue unprofaned, Lawyers will of course be confiderable, their profeffion honourable; and the sons of the noble and best private families in the kingdom will be members of it. But, when civil Liberty dies, by foreign or domestic invasion, the vocation of a Lawyer will soon become equally mean among us, to what it actually is now in all foreign countries, where the Monarch, by the sword and the army, lays down his will for law, and breaks through the forms of Courts and their rules of justice whenever he pleases, and where, therefore, the profession of arms is alone held very distinguished, and indeed the only profefsion for Gentlemen of honourable birth. But, as I never defire to see this sort of Government take place here, so whatever I have said to the disreputation of Lawyers, must be applied to particulars, and not to the calling in general ; for, as I know no greater public bleffing than a wise and incorrupt supreme Judge, so I cannot form to myself a more detestable being than a false, artful, and unprincipled chief Magistrate of this fort. The true language in this country is, that of a late famous Minifter, who said, he would have it be known throughout his Majesty's dominions, that all men, even the greatest Generals, were still to be subordinate to the Civil Power. What therefore must be the weakness, or the thoughtlessness, of any civil Minister who should endeavour, in public discourse, to leffen the reverence and respect of every Englishman towards his Judges, by treating their most solemn expositions of the law, delivered upon oath, as he would the profigate proceedings, or abandoned votes, of a motley crew of uniworn and ignorant election-men; or who should wantonly, in a great and ceremonious assembly, start a vulgar idea that tended to degrade any one of their judicial determinations to a level with the scoun. drelly conversation of the liverymen of Peers. I will venture to say, that by debafing the reverend Judges, you help to raise a contempt for all civil Government; and when the veneration for Judges and Laws shall once fall to the ground, neither Juries nor Parliaments will long survive, but they will all be delivered up to the mere discretion of the Prince, who will soon find it much easier and shorter, to govern by his own will and pleafure, that is, by a privy-council and a standing army, and thus levy, without doubts or difficulties, whatever money, or execute whatever orders, he shall in his wisdom prescribe, One principal drift, therefore, of this my Letter, is to let mankind fee, from facts, who are, and who have been, when in power, in their several departments, the defenders of this noble and an