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. [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's bench 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.] 542. Proceedings in the Case of JOHN WILKES, esq. on two Informations 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, No 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. by Mr. Wilkes contained matters to the pur charge was, that the libel printed and published port and effect following, to wit:' which the counsel for the crown thought it advisable to alter into words importing that such libel contained 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, attorney 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 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 publication 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 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 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 in-part founded on the strongest evidence of facts. formation in this cause be amended; by strik. ing 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. He opened with a speech, which is already in print,* and therefore needs not be here re * 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 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 bas 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 have been found against me, if the records had not been materially altered without my consent, and, as I am informed, contrary to law. On the evening only before the two trials, the Lord Chief Justice caused 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 uncon being unconstitutional and illegal; and was advised, he said, that it rendered both the verdicts absolutely void. Mr. Attorney General (Mr. De Grey) prayed that Mr. Wilkes might stand committed; as he had been convicted of printing and publishing one of these libels, and of publishing the other; and had now avowed himself to be the person so convicted. Mr. Serjeant Glynn, of counsel for Mr. Wilkes, opposed this. He said, he had several objections to the outlawry; and that, till last night, they had expected a Fiat for a writ of error: but that, last night, Mr. Attorney General declined granting one, because he doubted 'whether it belonged to his office to grant it,' or whether it ought not to be granted by the lord chief justice.'* He said, Mr. Attorney General did not refuse his Fiat, from any doubt about the propriety of the application for it, or the sufficiency of the objections to the outlawry; but merely from a doubt to whom it belonged to allow the writ of error.' He said, he would propose some errors, which he hoped would satisfy the Court that a writ of error ought to be granted. They were of two sorts: first, errors in fact; 2dly, errors in law. 1st. An error in fact was, that Mr. Wilkes was absent and out of the kingdom, at the time of the award of the writ of Exigent.' It is 2dly. Three errors in law. First, that the sheriff has returned no proclamations.' only said, that he has obeyed the writ;' stitutional. I am advised that it is illegal, and that it renders both the verdicts absolutely void. I have stood forth, my lords, in support of the laws against the arbitrary act of ministers. This court of justice, in a solemn appeal respecting general warrants, shewed their sense of my conduct. I shall continue to reverence the wise and mild system of English laws, and this excellent constitution. I have been much misrepresented, but under every species of persecution, I will remain firm and friendly to the monarchy, dutiful and affec tionate to the illustrious prince who wears the crown, and to the whole Brunswick line. As to all nice intricate points of law, I am sensible how narrow and circumscribed my ideas are; but I have experienced the deep knowledge and great abilities of my counsel. With them I rest the legal part of my defence, submitting every point to the judgment of this honourable Court, and to the laws of England." It appears, that the omission of the word 'false,' noticed by the defendant, had been adopted by sir Fletcher Norton, for the purpose of contracting the scope for dispute between judges and juries; concerning which, see vol. 8, p. See also the Dean of St. Asaph's Case, A. D. 178. Concerning the words falsò et malitiosè' in indictments and informations for libels, see Emlyn's Preface inserted in vol. 1, p. xxx, xxxi. See Salk, 264, pl. 7, 504, pl. 2. whereas he ought to have returned particulars; that the Court might judge of them. Secondly, it is not stated in the return of the Exigent, |‹ that Mr. Wilkes was exacted in the county of Middlesex:' nor is it said to be at a countycourt.' It is only said to be at his countycourt at the Three Tons in Brook-street near Holborn, in the county of Middlesex:' which is no allegation that Brook-street is in the And though it is said county of Middlesex.' at my county-court,' yet he might be sheriff of two counties. He cited 2 Roll's Abr. 802, title utlagaire, error utlagarie.' Thirdly, no judgment of the coroner is here stated; but only a mere fact, that he was outlawed by the coroner.' In support of which objection, he He cited 1 Brown's Entries 361, as in point. therefore prayed that his lordship would grant Mr. Wilkes an allowance of his writ of error, in order to his getting this erroneous outlawry reversed. He said it was improper at this time to enter into any litigation about the validity of the convictions upon which these judgments are founded. Mr. Wilkes's present circumstances under the outlawry are more penal than Therefore it is the convictions themselves. incumbent upon him, first to get rid of the outlawry. And he prayed that Mr. Wilkes might be, in the mean time, admitted to bail. Mr. Recorder of London, [Eyre, afterwards successively baron and lord chief baron of the Exchequer, and lord chief justice of C. B.] on the same side, enforced what the Serjeant had urged; and observed, that by 4, 5 W. and M. c. 18, § 4, Mr. Wilkes was not compellable to appear in person; but might have appeared by attorney, and reversed the outlawry without bail (unless otherwise ordered by the Court.) He therefore proposed, that he should either appear by attorney, to reverse it ; or give bail And he cited Earto prosecute a writ of error. bury's case in this court, in Easter and Trinity Terms 1723, 9 Geo. 1.* Mr. Mansfield, on the same side, argued that Mr. Wilkes was clearly intitled to be admitted to bail, under this statute. The convictions cannot at this time be proceeded upon; as the sentence of outlawry is standing out against him. He has done all that is in his power to do. He appears in court, and submits to the laws of his country. He has shewn errors of weight, in the outlawry; and has used all methous to obtain a writ of error to be allowed; and prays to be admitted to bail by the Court, as he must have been by the sheriff, if he had been taken upon a Capias Utlagatum. Mr. Davenport, on the same side, spoke to the same effect. Mr. Attorney General explained the fact, That case was an outlawry for non-appearance; I have a note of it, of my own taking. And there is a report of it in Fortescue Aland 37, and another in 8 Mod. 177, very bad in the 1st edition, but much mended in the late edition of that book. Burrow. and the reason of his declining to grant the fiat | which he stands convicted; and to arraigu an for a writ of error. He said, that upon the ap-order made by me. plication made to him on the part of the defendant, he directed an attendance: which was accordingly had. That he thought the errors specified to him, to be a sufficient foundation for a fiat, in case the party had been in custody; but he could not find any precedent for an attorney-general's granting a fiat when the party was not in custody. The writ of error was not tendered to him, he said, till last | night: and the Court was to sit this morning. He was ready to listen to any method that could have been shewn to be proper: but none was proposed. He added, that he thought Mr. Wilkes could not be intitled to his writ of error, till he should be in custody. He observed, that this was not an outlawry for nonappearance; but an outlawry upon and after conviction. Lord Mansfield. Here are two motions made, upon the defendant's appearing personally in court: one, for committing him; the other, for bailing him. I am of opinion against both these motions. He ought to be brought in regularly, upon a return of the Capias by the sheriff. I have no doubt but that we might take notice of him, upon his voluntary appearance as the person outlawed; and commit or bail him: but we are not absolutely bound to do it, without some reason to excuse the going out of the regular course.+ If the defendant could shew that the attorney general refused to take him up and bring him into court, in order to prevent his having this advantage; or if the attorney general bad in fact used all methods to take him up, and be had concealed himself and absconded, and afterwards had come in thus voluntarily, in order to surprize; upon either of these, or any other extraordinary ground, we should be bound to interpose, and overlook the impropriety of the defendant's coming, instead of being brought into court. But the real cause of this irregularity is the strongest argument, why we should not give way to a new mode, liable to misconstruction, and carrying a bad appearance. It is notorious, that the defendant has appeared very publicly why was he not apprehended? The outlawry must certainly be disposed of, before you can come at any thing else: the judgment upon the convictions cannot, at present, be proceeded upon. I could wish this gentleman had been better advised than to have come thus prematurely, with a written speech to justify the crimes of Qu. the stat. 4 and 5 W. and M. c. 18. +"If we see one against whom there is a judgment of this Court walk in Westminsterhall, we may send out an officer to take him up if the plaintiff desires it, without a writ of execution." Per Holt, 7 Mod. 52. I am very happy in having this opportunity of explaining my conduct in making the amendment that has been mentioned. If I was wrong, I should think it more honourable to acknowledge and rectify any error that I should have committed, than to justify and defend it. The application to me was, to amend the word purport' into tenor.' Mr. Hughes, the clerk in court for the defendant, agreed it to be amendable. 1 recollected a case of the like kind, of an amendment of an information just before trial: and, looking for it, I found a collection of such cases. After reading one or two, Mr. Philips, attorney and agent for the defendant, was perfectly satisfied, and desired me not to give myself any further trouble; but said he could not consent to it.' I said, ‘I did not want a consent:' I thought myself bound to order the amendment; and did so. * Great clamour was raised by Wilkes's partisans against lord Mansfield for causing this amendment to be made. The transaction was mentioned with much acrimony in the "Letter concerning Libels, Warrants, Seizure of Papers," &c. which caused the attorney general (sir Fletcher Norton), to move the Court of King's-bench for an attachment against Mr. Almon, the publisher of that letter. It appears, that the matter was argued upon a rule to shew cause why a writ of attachment should not be issued; the proceedings, however, were discontinued. Mr. Justice Wilmot had prepared a learned opinion on the punishment of contempt by attachment, which is published in the "Notes of his Opinions and Judgments," &c. p. 243. In Another Letter to Mr. Almon' is the following passage: "Let us recollect what a noise the alteration of a record, after issue joined, produced; it being unusual. After discussion and search of precedents, it was found to be sufficiently warranted both by law and practice. It may be done by any judge at his house, the very minute before trial without the defendant's consent. However, nothing but a solemn decision on the point would have appeased all discontent about it. The notion that a defendant might have so far trusted to some flaw in the pleadings, which he was well advised would be fatal, as to forego the bringing of testimony in his behalf, notwithstanding he really could have done so, was the ground of people's alarm. The making of a defence on the merits necessary, just as the cause is called on, which was unnecessary before, made the world conceive an honest defendant might be convicted sometimes by surprize, and that such an alteration of the record could not therefore be just, and consequently not legal. They had heard that it bad grounded a complaint to parliament in king William's time, against a judge (one Holloway I think). But it is now settled, and therefore nu had made some such orders before; aud I have made several such orders since; even in Quo Warranto informations. In this case, it made no alteration in the defendant's defence. His counsel never objected to it, nor took any notice of it. I think it right and usual, and as of course; not but that I am open to conviction, and ready to hear what can be said to shew that it was wrong. Mr. Justice Yates. If this amendment was wrong, it will still be open to the consideration of the Court; although the proper opportunity of objecting to it was at the trial. In the case of the King against Charlesworth, an information for forging a warrant of attorney to acknowledge satisfaction upon a judgment,' was amended, without costs (the prosecutor having been admitted a pauper), and without giving the defendant leave to plead de novo. 2 Stra. 871. As to the two present opposite motions, one for committing, the other for bailing the defendant; the same answer serves for both: the Court can take no notice of any thing but what comes judicially before them.' We cannot take cognizance of this matter, in the method in which it now comes before us: we cannot take judicial notice that this is the person convicted or outlawed.' Mr. Browne's case in Dyer 192, is clear and strong, as to the outlawry. And as to committing him upon the convictions, that can't be done whilst the outlawry is subsisting the outlawry must first be disposed of, before we proceed upon the convictions. The judgment of outlawry suspends all proceedings upon them. The judgments on the convictions would probably be fine and imprisonment. But it would be manifest oppression to set a fine upon him, when all his effects stand forfeited to the king already and he is already liable to imprisonment upon the outlawry; from which he can never be freed whilst that stands in force. There cannot be two different judg ments for the same offence: there cannot be judgment of outlawry, and judgment for the misdemeanour likewise. In the case of the King and Queen against Tippin, 1 W. and M. Salk. 494, the defendant was outlawed upon an information for a misdemeanour, and fined 5,000l. It was moved, on his behalf, that he could not be fined upon the outlawry; because, in misdemeanour, the outlawry does not enure as a conviction for the offence, (as it does in cases of treason and felony,) but as a conviction of the contempt for not answering; which contempt is punished by the forfeiture of his goods and chattels : and if he might be fined now, he torious, and nobody in particular can be injured by such practice hereafter; Mr. Wilkes no more than Dr. Shebbeare. The occasion, too, frequently adds to the suspicion, and none is so likely to minister ground of offence as the case of a writer against administration." must be fined again, upon the principal judgment. And the first was held to be irregular: for the outlawry in these cases is not a conviction; as appears by Fleta 42. Quamvis 'quis pro contumacia et fuga utlagetur, non propter hoc convictus est de facto principali.' And there is a case in Bro. Abr. title Utla gary,' pl. 26, where a man was outlawed of felony, and taken by a Capias Utlagatum, and detained in the King's-bench; and divers bills were brought against him in custody of the marshal: and the Court would not suffer it. For, his body, lands, and goods are the king's; and therefore the plaintiff cannot have the effect of his suit against him before the outlawry: but if he obtains a pardon, the plaintiff shall be answered. If the defendant in the present case had come in by process, his identity would have appeared. If he had come in by record, he might have applied to be bailed, either upon the statute of 4, 5 W. and M. c. 18, (if that statute can be shewn to be applicable to an outlawry on a misdemeanour), or under the plenary power of the Court upon the circumstances of his case. But that statute seems only applicable to civil cases. I mention this, only for the consideration of the counsel, when it shall come before the Court. By the 5th section, the sheriff may take security of the ♦ defendant taken upon a Capias Utlagatum, in cases where bail is required, in double the sum for which bail is required.' But how can the sheriff, under the directions of this statute, take bail in double the sum, in a criminal case? How can the sheriff know what the fine will be? Or why should the sum of the fine be doubled? The statute seems to relate only to civil cases, and to mean double the debt.' The defendant ought, in my opinion, to have come hither in a regular way: but as the matter now stands, upon this voluntary appearance, without return of process or any matter of record whatsoever, the Court can neither commit him nor bail him. Mr. Justice Aston. I think there is but one question: and I shall keep to that. It is, "whether he shall be committed." The attorney-general prays us to commit a man as an outlaw, against whom he himself would not issue process of outlawry; though there do not appear to be any particular circumstances to prevent his issuing such process. The officers of the crown might have exercised their power by proper process; and then he would have been in custody. But they have not chosen to do so: and he remains as much at his liberty, as he was before he came into court. The motion to commit him seems unnecessary: and 1 shall not, at present, take notice of any other question; he not being at all in custody. * "I suspect this word 'first' to be an error of the press; and that it should be 'fine."" Burrow. |