The defendants upon this occasion have stopped short at the Revolution. But I think it would be material to go further back, in order to see, how far the search and seizure of papers have been countenanced in the antecedent reigns. First, I find no trace of such a warrant as the present before that period, except a very few that were produced the other day in the reign of king Charles 2. But there did exist a search-warrant, which took its rise from a decree of the Star-Chamber. The decree is found at the end of the 3d volume of Rushworth's Collections. It was made in the year 1636, and recites an older decree upon the subject in the 28th of Elizabeth, by which probably the same power of search was given. By this decree the messenger of the press was empowered to search in all places, where books were printing, in order to see if the printer had a licence; and if upon such search he found any books which he suspected to be libellous against the church or state, he was to seize them, and carry them before the proper magistrate. It was very evident, that the Star-Chamber, how soon after the invention of printing I know not, took to itself the jurisdiction over public libels, which soon grew to be the peculiar business of that court. Not that the courts of Westminster-hall wanted the power of holding pleas in those cases; but the attorney general for good reasons chose rather to proceed there; which is the reason, why we have no cases of libels in the King's-bench before the Restoration. The Star-Chamber from this jurisdiction presently usurped a general superintendance over the press, and exercised a legislative power in all matters relating to the subject. They appointed licensers; they prohibited books; they inflicted penalties; and they dignified one of their officers with the name of the messenger of the press, and among other things enacted this warrant of search. After that court was abolished, the press became free, but enjoyed its liberty not above two or three years; for the Long Parliament thought fit to restrain it again by ordinance. Whilst the press is free, I am afraid it will always be licentious, and all governments have an aversion to libels. This parliament, therefore, did by ordinance restore the Star-Chamber practice; they recalled the licences, and sent forth again the messenger. It was against the ordinance, that Milton wrote that famous pamphlet called Areopagitica. Upon the Restoration, the press was free once more, till the 13th and 14th of Charles 2, when the Licensing Act passed, which for the first time gave the secretary of state a power to issue search warrants: but these warrants were neither so oppressive, nor so inconvenient as the present. The right to enquire into the licence was the pretence of making the searches; and if during the search any suspected libels were found, they and they only could be seized. This act expired the 32d year of that reign, or thereabouts. It was revived again in the 1st year of king James 2, and remained in force till the 5th of king William, after one of his parliaments had continued it for a year beyond its expiration. I do very much suspect, that the present warrant took its rise from these search-warrants, that I have been describing; nothing being easier to account for than this engraftment; the difference between them being no more than this, that the apprehension of the person in the first was to follow the seizure of papers, but the seizure of papers in the latter was to follow the apprehension of the person. The same evidence would serve equally for both purposes. If it was charged for printing or publishing, that was sufficient for either of the warrants. Only this material difference. must always be observed between them, that the search warrant only carried off the criminal papers, whereas this seizes all. When the Licensing Act expired at the close of king Charles 2's reign, the twelve judges were assembled at the king's command, to discover whether the press might not be as effectually restrained by the common law, as it had been by that statute. 4 I cannot help observing in this place, that if the secretary of state was still invested with a power of issuing this warrant, there was no occasion for the application to the judges: for though he could not issue the general searchwarrant, yet upon the least rumour of a libel be might have done more, and seized every thing. But that was not thought of, and therefore the judges met and resolved: First, that it was criminal at common law, not only to write public seditious papers and false news; but likewise to publish any news without a licence from the king, though it was true and innocent. Secondly, that libels were seizable. This is to be found in the State Trials; and because it iş a curiosity, I will recite the passages at large. "The Trial of Harris for a libel. Scroggs Chief Justice. "Because my brethren shall be satisfied with the opinion of all the judges of England what this offence is, which they would insinuate, as if the mere selling of books was no offence; it is not long since that all the judges met by the king's commandment, as they did some time before: and they both times de. clared unanimously, that all persons, that do write, or print, or sell any pamphlet that is either scandalous to public or private persons, such books may be seized, and the persons punished by law; that all books which are scandalous to the government may be seized, and all persons so expounding may be punished: and further, that all writers of news, though not scandalous, seditious, nor reflective upon the government or state; yet if they are writers, as they are few others, of false news, they are indictable and punishable upon that account." [See vol. 7, p. 929.] It seems the chief justice was a little incorrect in his report; for it should seem as if he meant to punish only the writer of false news. But he is more accurate afterwards in the trial of Carre for a libel. "Sir G. Jefferies, Recorder. All the judges of England having met together to know, whether any person whatsoever may expose to the public knowledge any matter of intelligence, or any matter whatsoever that concerns the public, they give it in as their resolution, that no person whatsoever could expose to the public knowledge any thing that concerned the affairs of the public, without licence from the king, or from such persons as he thought fit to intrust with that power." "Then Scroggs takes up the subject, and says, The words I remember are these. When by the king's command we were to give in our opinion, what was to be done in point of regulation of the press, we did all subscribe, that to print or publish any news-books or pamphlets, or any news whatsoever, is illegal; that it is a manifest intent to the breach of the peace, and they may be proceeded against by law for an illegal thing. Suppose now that this thing is not scandalous, what then? If there had been no reflection in this book at all, yet it is illicitè done, and the author ought to be convicted for it." [See vol. 7, p. 1127.] These are the opinions of all the twelve judges of England; a great and reverend authority. Can the twelve judges extrajudicially make a thing law to bind the kingdom by a declaration, that such is their opinion?—I say No.-It is a matter of impeachment for any judge to affirm it. There must be an antecedent principle or authority, from whence this opinion may be fairly collected; otherwise the opinion is null, and nothing but ignorance can excuse the judge that subscribed it. Out of this doctrine sprang the famous general searchwarrant, that was condemned by the House of Commons; and it was not unreasonable to suppose, that the form of it was settled by the twelve judges that subscribed the opinion. The deduction from the opinion to the warrant is obvious. If you can seize a libel, you may search for it: if search is legal, a warrant to authorize that search is likewise legal: if any magistrate can issue such a warrant, the chief justice of the King's bench may clearly do it. It falls here naturally in my way to ask, whether there be any authority besides this opinion of these twelve judges to say, that libels may be seized? If they may, I am afraid, that all the inconveniences of a general seizure will follow upon a right allowed to seize a part. The search in such cases will be general, and every house will fall under the power of a secretary of state to be rummaged before proper conviction.-Consider for a while how the law of libels now stands. Lord Chief Justice Holt and the Court of King's-bench bave resolved in the King and Bear*, that he who writes a libel, though he neither composes it nor publishes, is criminal. In the 5th Report, 125, lord Coke cites it in the Star Chamber, that if a libel concerns a public person, he that bath it in his custody ought immediately to deliver it to a magistrate, that the author may be found out. In the case of Lake and Hutton, Hobart 252, it is observed, that a libel, though the right way is to discover it to some magistrate contents are true, is not to be justified; but the or other, that they may have cognizance of the cause. In 1st Ventris 31, it is said, that the having a Jibel, and not discovering it to a magistrate, was only punishable in the Star Chamber, un less the party maliciously publish it. But the Court corrected this doctrine in the King and Bear, where it said, though he never published it, yet his having it in readiness for that purpose, if any occasion should happen, is highly criminal: and though he might design to keep it private, yet after his death it might fall in such hands as might be injurious to the govern ment; and therefore men ought not to be al lowed to have such evil instruments in their keeping. Carthew 409. In Salkeld's repert of the same case, Holt chief justice says, if a libel be publicly known, a written copy of it is evidence of a publication. Salk. 418. If all this be law, and I have no right at present to deny it, whenever a favourite libel is published (and these compositions are apt to be favourites) the whole kingdom in a month or two becomes criminal, and it would be diffi cult to find one innocent jury amongst so many millions of offenders. I can find no other authority to justify the seizure of a libel, than that of Scroggs and his brethren. If the power of search is to follow the right of seizure, every body sees the consequence. He that has it or has had it in his custody; be that has published, copied, or maliciously re ported it, may fairly be under a reasonable suspicion of having the thing in his custody, and consequently become the object of the search-warrant. If libels may be seized, it ought to be laid down with precision, when, where, upon what charge, against whom, by what magistrate, and in what stage of the prosecution." All these particulars must be explained and proved to be law, before this general proposition can be established. As therefore no authority in our books can be produced to support such a doctrine, and so many Star-Chamber decrees, ordinances, and acts have been thought necessary to establish a power of search, I cannot be persuaded, that such a power can be justified by the com mon law. I have now done with the argument, which * Reported Carth. 407. 1 L. Raym. 414. 12 Mod. 299. 2 Salk. 417. 646. has endeavoured to support this warrant by the | practice since the Revolution. It is then said, that it is necessary for the If, however, a right of search for the sake ends of government to lodge such a power of discovering evidence ought in any case to be with a state officer; and that it is better to pre- allowed, this crime above all others ought to vent the publication before than to punish the be excepted, as wanting such a discovery less offender afterwards. I answer, if the legisla-than any other. It is committed in open daytion be of that opinion, they will revive the Li-light, and in the face of the world; every act of censing Act. But if they have not done that, publication makes new proof; and the solicitor I conceive they are not of that opinion. And of the treasury, if he pleases, may be the witwith respect to the argument of state neces- ness himself. sity, or a distinction that has been aimed at between state offences and others, the common law does not understand that kind of reasoning, nor do our books take notice of any such distinctions. Serjeant Ashley was committed to the Tower in the 3d of Charles 1st, by the House of Lords only for asserting in argument, that there was a law of state' different from the common law; and the Ship-Money judges were impeached for holding, first, that state-necessity would justify the raising money without consent of parliament; and secondly, that the king was judge of that necessity. If the king himself has no power to declare when the law ought to be violated for reason of state, I am sure we his judges have no such prerogative. The messenger of the press, by the very constitution of his office, is directed to purchase every libel that comes forth, in order to be a witness. Nay, if the vengeance of government requires a production of the author, it is hardly possible for him to escape the impeachment of the printer, who is sure to seal his own pardon by his discovery. But suppose he should happen to be obstinate, yet the publication is stopped, and the offence punished. By this means the law is satisfied, and the public secured. I have now taken notice of every thing that has been urged upon the present point; and upon the whole we are all of opinion, that the warrant to seize and carry away the party's papers in the case of a seditious libel, is illegal and void. Lastly, it is urged as an argument of utility, Before I conclude, I desire not to be underthat such a search is a means of detecting of stood as an advocate for libels. All civilized fenders by discovering evidence. I wish some governments have punished calumny with secases had been shewn, where the law forceth verity; and with reason; for these composievidence out of the owner's custody by process. tions debauch the manners of the people; they There is no process against papers in civil excite a spirit of disobedience, and enervate the causes. It has been often tried, but never pre-authority of government; they provoke and vailed. Nay, where the adversary has by force excite the passions of the people against their or fraud got possession of your own proper rulers, and the rulers oftentimes against the evidence, there is no way to get it back but by people. action. After this description, I shall hardly be conIn the criminal law such a proceeding was sidered as a favourer of these pernicious pronever heard of; and yet there are some crimes, ductions. I will always set my face against such for instance as murder, rape, robbery, them, when they come before me; and shall and house-breaking, to say nothing of forgery recommend it most warmly to the jury always and perjury, that are more atrocious than li- to convict when the proof is clear. They will belling. But our law has provided no paper-do well to consider, that unjust acquittals bring search in these cases to help forward the conviction. Whether this proceedeth from the gentleness of the law towards criminals, or from a consideration that such a power would be more pernicious to the innocent than useful to the public, I will not say. It is very certain, that the law obligeth no man to accuse himself; because the necessary means of compelling self-accusation, falling upon the innocent as well as the guilty, would be both cruel and unjust; and it should seem, that search for evidence is disallowed upon the same principle. There too the innocent would be confounded with the guilty. an odium upon the press itself, the consequence whereof may be fatal to liberty; for if kings and great men cannot obtain justice at their hands by the ordinary course of law, they may at last be provoked to restrain that press, which the juries of their country refuse to regulate. When licentiousness is tolerated, liberty is in the utmost danger; because tyranny, bad as it is, is better than anarchy; and the worst of governments is more tolerable than no government at all. [A great change of the king's ministers happened in the July before the judgment in the preceding case; particularly the marquis of RockObserve the wisdom as well as mercy of the ingham was placed at the bead of the treasury. law, The strongest evidence before a trial, The judgment was soon followed with a resobeing only ex parte, is but suspicion; it is not lution of the House of Commons, declaring the proof. Weak evidence is a ground of suspi-seizure of papers in the case of a libel to be ilcion, though in a lower degree; and if suspi- legal. Journ. Com. 22 April, 1766. At the cion at large should be a ground of search, same time the Commons passed a resolution VOL, XIX, 87 condemning general warrants in the case of libels. The latter resolution was afterwards extended by a further vote, which included a declaration, that general warrants were uni versally illegal, except in cases provided for by act of parliament. Journ. Com. 25th April, 1766.-All these resolutions were in consequence of Mr. Wilkes's complaint of a breach of privilege above two years before. Journ. Com. 15th November, 1763. Two prior attempts were made to obtain a vote in condemnation of general warrants and the seizure of papers, one in 1764, the other in 1765. Journ. Com. 14th and 17th February, 1764; 29th January, 1765. [S [See, too, New Parl. Hist.] But they both had miscarried, and one of the reasons assigned for so long resisting such interposition of the House was the pendency of suits in the courts of law. This objection was in part removed by the solemn judgment of the Common Pleas against the seizure of pa pers, and the acquiescence in it. Whether the question of general warrants ever received the same full and pointed decision in any of the courts, it is not in our power at present to inform the reader. The point arose on the trial of an action by Mr. Wilkes against Mr. Wood; and lord Camden in his charge to the jury appears to have explicitly avowed his own opinion of the illegality of general war rants; but what was done afterwards is not stated. How a regular judgment of the point was avoided, in the case of error in the King'sbench between Money and Leach, by con ceding that the warrant was not pursued, we have observed in a former Note, see p. 1028. As to the action, in which Mr. Wilkes finally recovered large damages from the earl of Halifax, it was not tried till after the decla ratory vote of the Commons, which most pro bably prevented all argument on the subject, Hargrave.] $42. Proceedings in the Case of JOHN WILKES, esq. on two In. formations for Libels, King's-Bench and House of Lords: 4 GEORGE III.-10 GEORGE III. A. D. 1763-1770. [This Case is wholly extracted from sir James Burrow's Reports. 4 Burr. 2527.] Wednesday, February 7, 1770. As this cause, in the several branches of it, came several times before the Court, it seemed better to reserve a general account of it till a final conclusion of the whole, than to report the particular parts of it disjointedly, in order of time as they were respectively argued and determined. In Michaelmas Term 1763, the 4th year of his present majesty king George the 3d, sir Fletcher Norton, then his majesty's solicitorgeneral, (the office of attorney-general being then vacant,) exhibited an information against Mr. Wilkes, for having published, and caused to be printed and published a seditious and scandalous libel (the North Briton, N° 45.) And soon after, he exhibited another information against him, (the office of attorneygeneral still remaining vacant,) for having printed and published, and caused to be printed and published, an obscene and impious libel (an Essay on Woman, &c.) Mr. Wilkes having pleaded Not Guilty to both these informations, and the records being made up and sealed, and the causes* ready for trial, the counsel for the crown thought it expedient to amend them, by striking out the word purport,' and in its place inserting the word tenor.' The proposed amendments were in all those parts of the information where the They were tried on the 21st of February, 1764. charge was, that the libel printed and published by Mr. Wilkes contained matters to the pur port and effect following, to wit:' which the counsel for the crown thought it advisable to i alter into words importing that such libel con tained matters to the tenor and effect following, to wit.' Sir Fletcher Norton (then become himself attorney-general) directed Mr. Barlow, clerk in court for the crown, to apply to a judge for such an order; apprehending it (as he afterwards publicly declared) to be a matter of course. Mr. Barlow, in pursuance of these directions, applied to lord Mansfield, for a summons to shew cause why such amendment should not be made.' And his lordship issued a summons in each cause, dated 18th of February, 1764, for the defendant's clerk in court, agent, at torney or solicitor, to attend him at his house in Bloomsbury-square on Monday the 20th of February at eight o'clock in the morning; to shew cause why the information should not be amended, by striking out the word purport,' in the several places where it is mentioned in the said information, and inserting instead thereof the word 'tenor.' N. B. The summons in the cause relating to the seditious libel excepted the first place except in the first place.' On notice of this summons, Mr. Philips, agent and solicitor for Mr. Wilkes, and Mr. Hughes his clerk in court, and attorney for him upon the record, both attended his lordship, at his own house, upon the said 20th of February 1764, accordingly, (being now vacation time, and no court sitting;) and did not object to the proposed amendment: on the contrary, Mr. Hughes, upon being asked as a fair practiser, candidly acknowledged that it was amendable;' and Mr. Philips acquiesced t in it, though he said he could not consent to it. Lord Mansfield having, in the presence of these gentlemen, consulted and produced many precedents, and being fully satisfied that the amendment might be made, and that it might be made by a single judge at his house or chambers,' told Mr. Philips, that there was no need of his consent;' and immediately made the following order-"Upon hearing the clerks in court on both sides, I do order that the information in this cause be amended; by striking out the word 'purport' in the several places where it is mentioned, in the said information, and by inserting instead thereof the word tenor.' Dated this 20th day of February 1764." The orders in both causes were exactly alike; only that the words except in the first place' were added in that of the information for the seditious libel. Mr. Wilkes was at this time in France; whither he had voluntarily retired some time before, and from whence he did not return till towards the election of members for the new parliament (into which he was afterwards chosen.) The trial came on at the appointed time, and proceeded in the usual manner; Mr. Wilkes's counsel and agents making no objection there. to, nor declining to enter into his defence. Verdicts were found against him, upon both informations: after which, judgment was duly signed against him, in each cause; and writs of Capias were awarded and issued against him, as in ordinary cases of convictions upon informations for misdemeanours.-Upon his non-appearance, the proceedings were carried on to proclamation and exigents: and upon his not appearing on the fifth time of being exacted, he was, by the judgment of the coroners of the county of Middlesex, according to the law and custom of the realm, outlawed. On Wednesday the 20th of April 1768, (being the 1st day of Easter Term 1768,) soon after the sitting of the Court, and before any process had issued on this outlawry, Mr. Wilkes voluntarily made his personal appearance in it; accompanied by three or four friends, who probably meant to become his bail, in case of his being now admitted to bail. peated. He took notice, in it, that the record was altered, before the trial, by lord Mansfield's order: so that he was tried upon altered facts. This he particularly complained of, as country. Two verdicts have been found against me, one is for the republication of the North Briton, N° 45, the other for the publica tion of a ludicrous poem. As to the republication of the number of the North Briton, I cannot yet see that there is the smallest degree of guilt. I have often read and examined that famous paper, I know that it is in every part founded on the strongest evidence of facts. I find it full of duty and respect to the person of the king, although it arraigns, in the severest manner, the conduct of his majesty's then ministers, and brings very heavy charges home to them. I am persuaded that they were well grounded, because every one of those ministers has since been removed. No one instance of falsehood has yet been pointed out in that pretended libel, nor was the word 'false' in the information before this Court. I am therefore perfectly easy under every imputation respecting a paper, in which truth has guided the pen of the writer, whoever he was, in every single line; and it is this circumstance which has drawn on me as the supposed author, all the cruelties of ministerial vengeance. As to the other charge against me, for the publication of a poem which has given just offence, I will assert that such an idea never entered my mind. I blush again at the recollection that it has been at any time, and in any way, brought to the public eye, and drawn from the obscurity in which it remained under my roof. Twelve copies of a small part of it had been printed in my house, at my own private press: I had carefully locked them up, and I never gave one to the most intimate friend. Government, after the affair of the North Briton, bribed one of my servants to rob me of the copy, which was produced in the House of Peers, and afterwards before this honourable Court. The nation was justly offended, but not with me, for it is evident that I have not been guilty of the least offence to the public. I pray God to forgive, as I do, the jury who have found me guilty of publishing a poem I concealed with care, and which is not even yet published, if any precise meaning can be affixed to any word in our language. But, my lords, neither of the two verdicts could bave been found against me, if the records had not been materially He opened with a speech, which is already in print,* and therefore needs not be here re-altered without my consent, and, as I am in * It was printed in the public papers of the next day, 21st of April 1768. Burrow. It is also inserted in the Annual Register for the year 1768, Chronicle p. 93, and is as follows: "My lords; according to the voluntary promise I made to the public, I now appear before this sovereign court of justice, to submit myself in every thing to the laws of my formed, contrary to law. On the evening only before the two trials, the Lord Chief Justice Icaused the records to be altered at his own without my knowledge; for a dangerous illhouse, against the consent of my solicitor, and ness, arising from an affair of honour, detained me at that time abroad. The alterations were of the utmost importance; and I was in consequence tried the very next day on two new charges, of which I could know nothing: I will venture to declare this proceeding ungon |