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feited and lost by the attainder for treason, of the persons possessed of them, and can never again be revived but by a reversal of the ta

upon the scaffold, until his execution, was about
eight minutes; during which his countenance
did not change, nor his tongue faulter :-The
prospect of death did not at all shake the com-tainder." § 68.
posure of his mind.

Whatever were his lordship's failings, his be-
haviour in these his last moments, which
created a most awful and respectful silence
amidst the numberless spectators, cannot but
make a sensible impression upon every hu-
mane breast.

The accustomed time of one hour being past, the coffin was raised up, with the greater decency to receive the body, and being deposited in the hearse, was conveyed by the sheriffs, with the same procession, to Surgeons-Hall,* to undergo the remainder of the sentence (viz. dissection). Which being done, the body was on Thursday evening, the 8th of May, delivered to his friends for interment.

He was privately interred at St. Pancras near London, in a grave dug 12 or 14 feet deep, under the belfry.

It appears by the Lords' Journal, that on May 19, 1760, Washington earl Ferrers first sat in the House after the death of his brother Lawrence. Concerning the operation of attainders upon peerages, a profusion of learning has been collected and applied by Mr. Hargrave in his very able Opinion and Argument,' in the Stafford Barony Case. (See vol. 7, p. 1571.)

Mr. Cruise, in his "Treatise on the Origin and Nature of Dignities, or Titles of Honour, &c." ch. 4, § 68, et seq. (see also his Digest of the Laws of England, respecting real property, title 26,) has succinctly stated several fundamental points of law upon the same branch of the effects of attainder as follows:

"All dignities or titles of honour, whether held in fee simple, fee tail, or for life, are for

*The statute made in the 25th year of his late majesty's reign for preventing the crime of murder, enacts, "That the body of every person convicted of murder shall, if such conviction and execution shall be in the county of Middlesex, or within the city of London, or the liberties thereof, be immediately conveyed by the sheriff or sheriffs, his or their deputy or deputies, and his or their of ficers, to the hall of the Surgeons' Company, or such other place as the said company shall appoint for this purpose, and be delivered to such person as the said company shall depute or appoint, who shall give to the sheriff or sheriffs, his or their deputy or deputies, a receipt for the same; and the body so delivered to the said company of surgeons, shall be dissected and anatomized by the said surgeons, or such persons as they shall appoint for that purpose; and that in no case the body shall be suffered to be buried, unless after such body shall have been dissected and anatomized." Foster.

"A dignity descendible to heirs general, is also forfeited by attainder of felony, of the person possessed of it." § 72.

"But an entailed dignity is not forfeited by attainder of felony, for the stat. 26 H. 8 does not extend to attainders for felony." § 73. And he then refers to this case as follows:

"Lawrence earl Ferrers, to whose ancestors the dignity had been granted by letters patent in 1711, to hold to him and the heirs male of his body, was convicted and executed for murder in the year 1760. The dignity however was not forfeited, but descended to his brother Washington Ferrers, (Lawrence having left no issue) who took his seat soon after the execution of his brother." § 74.

"In the case of a dignity descendible to heirs general, the attainder for treason or felony of any ancestor of a person claiming such dignity, through whom the claimant must derive his title, though the person attainted was never possessed of the dignity, will bar such claim; for the blood of the person attainted being corrupted, no title can be derived through him." § 75.

Corruption of blood was abolished in the reign of queen Ann, but has been revived by the statute 39 George 3, c. 93." § 78.

"In the case of entailed dignities, no corrup tion of blood takes place, and therefore a dignity in tail may be claimed by a son, surviving an attainted father, who never was possessed of the dignity: for the son may claim from the first acquirer of the dignity, per formam doni; as heir male of his body, within the description of the grant; and the attainder of a father, or other lineal or collateral ancestor, who was never possessed of an entailed dignity, will not prevent the descent to his issue." § 79.

"In all cases where a person has been attainted of high treason by act of parliament, or hy judgment on an indictment for high treason, petty treason or felony, the corruption of blood can only be removed by act of parliament." § 81.

be

"Where a person is outlawed on an indictment for high treason, petty treason or felony, bis blood is also corrupted; but it may be restored by act of parliament, or by a reversal of the outlawry, by writ of error, which may done during the life of the person outlawed, or at any time after. A writ of error to reverse an outlawry is not however ex debito jus titie, and therefore can only be obtained by the favour of the crown." § 84.

"The House of Lords resolved [Journ. vol. 17, p. 119,] in 1702, that they would not in future receive any bill for reversing outlawries, or restitution in blood, that should not be first signed by her majesty or her successors, kings and queens of the realm, and sent by her or them to their House first, to be considered there." § 85.

539. The Case of JOHN WILKES, esq. on a Habeas Corpus, Common Pleas, Easter Term: 3 GEORGE III. A. D. 1763.

[The following Case is from the late Mr. Serjeant Wilson's Reports, 2 Wils. Rep. 150. But we have added another report of the Judgment from a book, intitled, "A Digest of the Law of Libels;" as on comparison it appeared to supply some defects in the Ser. jeant's account. It was attempted to obtain a fuller report of the Judgment than either of the two notes we lay before the reader But we were unsuccessful.

The great point of the case, namely, Whether the privilege of parliament extended to a prosecution for a seditious libel, was the chief inducement to our inserting it. Hargrave.]

MR. SERJEANT WILSON'S REPORT.

ON Saturday April 30, 1763, in the morning, be defendant Wilkes was arrested by two of he king's messengers, by virtue of a warrant rom the secretary of state; the tenor of which varrant is in the words following:

member of arliament ischarged, tithout bail, eing coma Snitted for #riting a seitious libel.

who then had Mr. Wilkes in their own custody, and an affidavit being made of the truth of such of two of the above messengers at bis house in copy, and that Mr. Wilkes was then in custody Great George-street, in Westminster, the same were produced in the court of Common Pleas the same 30th day of April at twelve o'clock at noon, or a few minutes before or after that hour; whereupon, at the same time, it was moved by my learned brother Glynu, that a writ of Habeas Corpus might be allowed to issue instantly, returnable forthwith. The lord chief justice Pratt was pleased to say, that this was a most extraordinary warrant; and the Court ordered an Habeas Corpus to be issued instantly, returnable forthwith. It being now about one o'clock, the rule of court for the issuing the Habeas Corpus could not possibly be drawn up and entered, nor could the writ be made out, signed and passed under the seal of the Court before four or five o'clock in the afternoon: and although it was certainly known by the officers under the crown, particularly by Mr. Webb, then solicitor to the treasury, that this writ had been ordered to issue by the Court Wilkes was in the custody of the messengers between twelve and one o'clock, while Mr. at his house in Great George-street, yet, before the coming of the writ to the messengers, (the same afternoon about five o'clock) Mr. Wilkes was hastily (I had almost said in contempt of the king's high court) committed to the Tower

of London.

George Montague Dunk, ear! ' of Halifax, viscount Sunbury and 'baron Halifax, one of the lords of his majesty's most honourable 'privy council, lieutenant gene'ral of his majesty's forces, and principal secretary of state: these are in his majesty's name to authorize and require you (taking a constable to your assistance) to make strict and diligent search for the authors, printers and publishers of a seditious and treasonable paper, intitled, The North Briton, N 45, Saturday April 23, 1763, printed for G. Kearsley in Ludgate-street, London, and them, or any of them, having found, to apprehend and seize, together with their papers, and to bring in safe custody before me, to be examined concerning the premisses, and further dealt On Sunday May the first, the same gentlewith according to law and in the due execution thereof, all mayors, sheriffs, jus-hours of twelve and one, on the same occasion, men went again to the Tower, between the tices of the peace, constables, and all other but were again denied admittance to see or his majesty's officers civil and military, and loving subjects whom it may concern, are to speak with Mr. Wilkes; and soon afterwards, be aiding and assisting to you, as there shall several noblemen and gentlemen of the first be occasion; and for so doing this shall be distinction were refused admittance to see or your warrant. Given at St. James's the speak to Mr. Wilkes, and particularly his own brother was refused, ut audivi. 26th day of April, in the third year of his majesty's reign. DUNK HALIFAX.'

Mr. Wilkes's solicitor, and one of his counsel, soon after they heard of such commitment,

went to the Tower in order to consult and ad

vise with him, but were denied admittance to him; major Rainsford informing them, that he had received orders from the secretary of state (lord Halifax) not to admit any person whatsoever to speak with, or see Mr. Wilkes; and further informed them, that he had just before refused the right honourable earl Temple such admittance, ut audivi.

To Nathan Carrington, John Money, James Watson, and Robert 'Blackmore, four of his majesty's 'messengers in ordinary.'

The same morning, a copy of the above warrant having been obtained from the messengers,

After such denial, Mr. Wilkes's solicitor demanded of major Rainsford a copy of the war. rant of commitment of Mr. Wilkes to the Tower, which was readily granted by the major, the tenor whereof is in the words following: Charles earl of Egremont and George Dunk 'earl of Halifax, lords of his majesty's most honourable privy council, and principal se

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'cretaries of state: these are in his majesty's name to authorize and require you to receive into your custody the body of John Wilkes, esq. herewith sent you, for being the author and publisher of a most infamous and sedi'tious libel, intitled, The North Briton, N° 45, 'tending to inflame the minds and alienate the 'affections of the people from his majesty, and 'to excite them to traitorous insurrections against the government, and to keep him 'safe and close, until he shall be delivered by 'due course of law; and for so doing this shall be your warrant. Given at St. James's the 30th day of April 1763, in the third year of 'his majesty's reign.

'EGREMONT, DUNK HALIFAX.'

To the right honourable John lord 'Berkley of Stratton, constable of his majesty's Tower of London, or to the lieutenant of the said Tower, or his deputy.'

Mr. Webb, solicitor to the treasury, being present in major Rainsford's room when the copy of the said warrant of commitment was granted, Mr. Wilkes's counsel and solicitor applied to Mr. Webb for admittance to Mr. Wilkes; whereupon (it is true) Mr. Webb desired the major to allow such admittance, and said he would be answerable, and indemnify the major: but the major, with the true spirit

of an excellent officer, answered, He would not, or he could not disobey orders.' Mr. Webb replied and said, he imagined, or he believed, there must have been some mistake in the orders, and that if either of the secretaries of state were in town, he would apply and endeavour to obtain the desired admittance; and that if he could succeed therein, he would send or bring an order for that purpose in the afternoon of the same Sunday, May the 1st; whereupon Mr. Wilkes's counsel and solicitor departed from the Tower, for some bours, and between the hours of eight and nine in the evening of the same day, returned again to the Tower, and applied for admittance to Mr. Wilkes; but the major not having received any orders or message from either of the secretaries of state, or from Mr. Webb, refused admittance, as he had done before, ut audivi.

On Monday the 2nd day of May, at the sitting of the Court of Common Pleas in the morning, the messengers returned the writ of Habeas Corpus which had issued and had been delivered to them on the 30th of April in the afternoon, after Mr. Wilkes was out of their custody, and committed to the Tower as above; the tenor of which return indorsed on the same writ returns thus, viz. In obedience to the within command, we humbly certify to his majesty's justices of the court of Common Pleas at Wesminster, that at the time of the coming of this writ to us, the within named John Wilkes was not, nor at any time since hath been in our custody, or in the custody of either of us; signed by

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two of the messengers to whom the writ was directed.

Upon reading the writ and the return thereof, it was moved by the king's serjeant, that the same might be affiled of record.

To which serjeant Glynn for Mr. Wilkes objected, and insisted that the return was too general in this particular case, (although it might be a good return in another case not circumstanced like the present) for that it clearly appeared to the Court by sufficient evidence, viz. the affidavit and warrant of arrest and seizure of Mr. Wilkes, upon which the writ was founded and granted last Saturday at noon, that Mr. Wilkes was then in the custody of the messengers, and therefore they ought to have returned and certified to the Court in what manner, when and by what authority he was taken out of their custody, and what was become of his body.

Some of the king's serjeants replied, that all the precedents of returns of writs of Habeas Corpus in the Crown-office, where the party therein named was not in the custody of the messengers (to whom the writ was directed) at the return in the present case; which assertion, the time of the coming of the writ, were like at first seemed to have weight with the lord chief justice and two others of the judges, who whereupon thought the return well enough; but Mr. Justice Gould was pleased to say he much doubted, whether the

In the case of

Sir William
Morris, Bu

had a ha. cor.

for his wife,
the return
was like the
present.
The like in
Holmes's case

B. R. about Michaelmas term 1756.

precedents in the Crown-office of returns to writs of Habeas Corpus for his wife. were like the present return, as had been asserted by the king's serjeants; and said if the precedents were not so, he should be of opinion, that this was an insufficient return, because he thought, from what appears in evidence in the case, the Court has a right to know what is be come of the king's subject Mr. Wilkes, since he was in the messenger's custody last Saturday at noon; whereupon (hæsitante curia) the writ and return were not permitted to precedents were ordered to be looked into, and be affiled of record upon this motion; aud

the matter of the return was ordered to be debated at another day; but I never heard that it was.

Afterwards the same Monday, May 2, a motion was made to the Court grounded upon a copy of the aforesaid warrant of commitment of Mr. Wilkes to the Tower, and an affidavit of the truth thereof, for another Habeas Corpus to be directed to the constable, &c. of the Tower of London, which was granted returnable without delay.

(which was crowded to such a degree as I Tuesday, May 3. At the sitting of the Court never saw it before) in the morning Mr. Wilkes was brought to the bar, and sat among the serjeants (next to the reporter on his left hand,) when the lieutenant of the Tower returned upon this second writ of Habeas Corpus the warrant of commitment of Mr. Wilkes to the

Tower by the two secretaries of state (before
set forth); which being read, serjeant Glynn
moved the Court that Mr. Wilkes might be
discharged out of custody without bail, and
grounded his motion on three points, two
whereof were objections to the legality of the
warrant of commitment (the reader will ob-prisonment in the Tower, without bail.
serve that the general warrant of arrest and
seizure was not now before the Court, and
therefore the legality of that could not now be
debated); the third point was, that Mr. Wilkes
was a member of parliament, and therefore was
privileged from being arrested for any crime
except treason, felony, and breach of the peace;
and that supposing him the author of the pre-
sent supposed libel (which he absolutely de-
nies) it is only a misdemeanor, and none of the
three above-mentioned crimes and misde-

an actual breach of the peace; and it was said
that it is universally agreed, a libel is not an
actual breach of the peace; therefore it was
insisted for Mr. Wilkes, that upon this point
alone (although the others should be over-
ruled) he ought to be discharged from his im-

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so sure of finding protection and support, and where the law (the principle and end of which is the preservation of liberty) is so perfectly ⚫ understood. Liberty, my lord, hath been the governing principle of every action of my life; and actuated by it, I always have en'deavoured to serve my gracious sovereign and his family, knowing his government to be founded upon it; but as it has been his mis'fortune to have employed ministers who have ' endeavoured to cast the odium and contempt ' arising from their own terrible and corrupt ⚫ measures on the sacred person of their sove⚫reign and benefactor, so mine has been the daring task to rescue the royal person from ill-placed imputations, and fix them on the 'ministers, who alone ought to bear the blame and the punishment due to their unconstitu'tional proceedings. For the proof of my zeal and affection to my sovereign I have been ' imprisoned, sent to the Tower, and treated with a rigour yet unpractised even on Scottish rebels. But however these may strive to destroy me, whatever persecution they are now meditating against me, yet to the world I shall proclaim, that offers of the most advantageous and lucrative kind have been 'made to seduce me to their party, and no ' means left untried to win me to their connections. Now, as their attempts to corrupt me have failed, they aim at intimidating me by 'persecution. But as it has pleased God to 'give me virtue to resist their bribes, so I doubt not but he will give me spirit to surmount their threats in a manner becoming an Englishman who would suffer the severest trials ' rather than associate with men who are enemies to the liberty of this country. Their bribes I rejected, their menaces I defy; and I think this is the most fortunate event of my life, when I appear before your lordship and this Court, where innocence is sure of protection, and liberty can never want friends and 'guardians.'

Then the Court took time to consider, and appointed Friday following to give their opinion, and ordered Mr. Wilkes to be remanded to the Tower, and to be brought up again to the bar on Friday the 6th of May; and upon that day, Mr. Wilkes being again at the bar, the Lord Chief Justice delivered the opinion of

the whole Court.

L. C. J. Pratt, after stating the warrant of commitment, said, There are two objections taken to the legality of this warrant, and a third matter insisted on for the defendant, is privilege of parliament.

The first objection is, that it does not appear to the Court that Mr. Wilkes was charged by any evidence before the secretaries of state, that he was the author or publisher of the North Briton N° 45. In answer to this, we are all of opinion, that it is not necessary to state in the warrant that Mr. Wilkes was charged by any evidence before the secretaries of state, and that this objection has no weight.

Whether a justice of peace can, ex officio, with. out any evidence or information, issue a warrant for apprehending for a crime, is a different question. If a crime be done in his sight, he may commit the criminal upon the spot; but where he is not present, he ought not to commit upon discretion. Suppose a magistrate hath notice, or a particular knowledge that a person has been guilty of an offence, yet I do not think it is a sufficient ground for him to commit the criminal; but in that case he is rather a witness than a magistrate, and ought to make oath of the fact before some other magistrate, who should thereupon act the official part, by granting a warrant to apprehend the offender; it being more fit that the accuser should appear as a witness, than act as a magistrate. But that is not the question upon this warrant. The question here is, whether it is an essential part of the warrant, that the information, evidence or grounds of the charge before the secretaries of state should be set forth in the warrant? And we think it is not. Thomas Rudyard's case, 2 Vent. 22, cannot be applied to this case; for in the case of a conviction it is otherwise. It was said that a charge by witness was the ground of a warrant; but we think it not requisite to set out more than the offence, and the particular species of it. It may be objected, if this be good, every man's liberty will be in the power of a justice of peace. But Hale, Coke and Haw. kins, take no notice that a charge is necessary to be set out in the warrant. In the case of the Seven Bishops, their counsel did not take this objection, which no doubt but they would have done, if they had thought there had been any weight in it. I do not rely upon the determination of the judges who then presided in the King's-bench. I have been attended with many precedents of warrants returned into the King's-bench; they are almost universally like this; and in sir William Wyndham's case, 1 Stra. 2, 3, this very point before us is determined. And Hawkins, in his 2 Pl. Coron. that the party is charged upon oath; but this 120, sect. 17, says, "It is safe to set forth is not necessary; for it hath been resolved, that a commitment for treason, or for suspicion of it, without setting forth any particular accusation, or ground of suspicion, is good ;" and cites sir William Wyndham's case, Trin. ? Geo. Dalt. cap. 121, Čromp. 233, b.

The second objection is, that the libel ought to be set forth in the warrant in hæc verba, or at least so much thereof as the secretaries of state deemed infamous, seditious, &c. that the Court may judge whether any such paper ever ex isted; or if it does exist, whether it be an infamous and seditious libel, or not. But we are all of a contrary opinion. A warrant of com mitment for felony must contain the species of felony briefly, "as for felony for the death of J. S. or for burglary in breaking the house of J. S. &c. and the reason is, because it may appear to the judges upon the return of an Habeas Corpus, whether it be felony or not."