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This spirit and mode of government would cement again that union which is shattered, if it is not quite broken-would restore again that spirit of obedience, which the loss of authority on the one hand, and the loss of affection on the other, hath interrupted-would re-establish the authority as well as force of "civil government," which has almost lost its force by losing its authority. Exert the spirit of policy, that you may not ruin the colonies and yourselves by exerting force.

Mr. Alderman Trecothick declared to the House, that when taxes on America were in agitation by the late Mr. Charles Townshend, the merchants all told him the effects they would have in North America, that they offered to pay the said taxes here in England, but it was unfortunately resolved to tax America, and the consequences would be fatal to this country. The Address to the King was lodging a sword over the heads of the North Americans, which might drive them to immediate despair. He concluded with moving to recommit the Address.

ing subsidies, imposts, and duties-but | pears upon the face of it, to be an explaexercise this, as you have always hitherto natory and retrospective law; the predone, with prudence and moderation, and amble says, "doubts having arisen." directed by the spirit of commercial What doubts, Sir, could have arisen, how wisdom. treasons committed in the colonies could be tried long before the colonies existed or were thought of? I differ, Sir, from those gentlemen who treated this as a tyrannical act, as it was one of the least exceptionable acts of a tyrannical reign, as it was calculated to give those privileges to Englishmen, which the present application of it would deprive the Americans of: I mean the advantages of a trial by jury; but, Sir, it happens fortunately for the Americans, that there is not a single act in the whole statute book that bears more strongly, from collateral circumstances, the marks of an occasional act; it was, Sir, enacted at the same time with the act for settling the succession, and several other laws, at a parliament called, previous and preparatory to the king's going upon an expedition to France, in which he conquered Bologne, and some other places. It may be necessary to remind the House, that all treasons committed by persons abroad, were, by the 1st of Henry 4, c. 14, to be tried before the constable and marshal. Now sir Humphry, duke of Bucks, the last high constable, was beheaded 23 years before this time; so that without this act there would have been an absolute failure of justice, had any treason been committed whilst the king was abroad; but, Sir, should it be thought right to adhere to the letter rather than the spirit of the law, and to apply it to purposes which could not be foreseen at the time it was enacted; is it expedient, is it politic now to put it in execution? Let us for a moment consider the situation of these men, torn from the acclamations of an applauding country (for popularity is become a crime every where in America, as well as England) to the mockery of a trial by jury, for so I call it, divested of all its advantages. How can they avail themselves of the right to challenge jurymen, whose character and connections are unknown to them? How are they to avail themselves of counsel, whose abilities and fame they are strangers to? By what process are they to compel the appearance of witnesses from the other side of the Atlantic? But, Sir, should they, with all these disadvantages, escape, and indeed I do not see how it can happen otherwise, for the act of the 35th of Henry 8, is for treasons committed out of the realm, and

Mr. Grey Cooper assured the House, that it was not meant to put the act in execution, but only to shew to America, what government could do if pushed to it.

Captain Constantine John Phipps* said, I will now, Sir, say something of the legality and expediency of this measure. The act, Sir, of the 35th of Henry 8, ap

* Afterwards lord Mulgrave. He was born in 1746. He early embraced the naval profession, and by the influence of friends was made post captain iu 1765. In 1768 he was elected member for Lincoln, and distinguished himself in parliament by his bold and manly conduct in the several popular questions which then agitated the House, especially the Middlesex election and the libel laws. His abili. ties as a sailor were employed in a voyage of observation and discovery towards the North Pole in 1773, and he set sail with captain Lutwidge in two ships, and at his return published an interesting Narrative of his remarks and observations in 4to. He was also author of a Letter from a Member of Parliament to one of his constituents, on the late proceedings of the House of Commons in the Middlesex elections. He succeeded to the Irish honours of his father in 1775, and in 1790 was created an English peer. He died in 1792.

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sary; let not parliament interfere; let them not insult our understanding, by calling upon us to recommend a measure, which it appears by all the papers on your table, they have already taken without your advice. I know the Americans wish for the smallest thread to hang parliamentary confidence on; let them, at least, have this slender hope, that if it shall hereafter appear that this is a power either illegally assumed, or wantonly exerted, parliament has not by this hasty step precluded itself from punishing the authors of it. Where is the idea of ministerial responsibility, unless it be that they are to take extraordinary steps on critical occasions; liable, however, to the severest censures if they do not afterwards prove, that the boldness of the measure was equalled by the urgency of the occasion? Let me for a moment address myself to the administration: it does not need their great penetration to see, for even I can see, the many inconveniences that must attend this measure; and if they feel as I do, and God forbid they should not! for the liberties of their fellow-subjects, they will not persist in so ill advised a measure: but should they remain deaf to the cries of the people, callous to the sensa tions of free men; it is our duty to stand between the victim and the altar, and to prevent the sacrifice of helpless freedom at the shrine of wanton ministerial tyranny. A trial by jury in its utmost extent is too inherent a right, too sacred a privilege, to be trifled with, and explained away by any forced constructions upon an obsolete statute. Our ancestors thought it so indispensible, that they granted the medietas lingua to merchant strangers, and Welch borderers. I hope, Sir, we shall not plead in vain, in this enlightened age, in this free parliament, for that right for our American fellow-subjects, which the wisdom and generosity of our ancestors granted to transitory aliens, and new conquered borderers. It is, Sir, by the whole tenor of our laws, their inheritance as Englishmen-it is, I thank God, by the spirit of our constitution their birth-right as men.

the 25th of Edward 3, makes levying war within the realm treason; so that whether America is in or out of the realm, it cannot be within the letter of both these acts, and I hope there is no latent, obsolete statute, teeming with constructive treason, to be brought forth against these men. Should they, I say, Sir, after all, be acquitted, what reparation can be made to an ingenuous mind for so foul an imputation as disloyalty? What reparation can be made to men dragged from the endearments of domestic life, brought from the land of liberty, flowing with milk and honey, to drink at the bitter fountain of oppression? Will they return less possessed of the confidence of their fellowsubjects, and less inclined to abuse it? Will they return less convinced of the inconveniences of a dependent state, or less solicitous to shake off the yoke from this new outrage? Let us for a moment consider the state of the country, till they can have some account of what is become of these patriots, as they will think them; will they not think that all those, who shall render themselves obnoxious to government by standing forth in opposition to its measures, and by supporting the rights of the people, are, like Tarquin's poppies, to be cut off for overtopping the rest? Will they not think these men are brought over here to be murdered? I know the expression is strong-I shudder when I use it but we must make much stronger suppositions before we can possibly agree to this measure; we must-rather than believe that one man, a governor, heated by dispute, piqued by opposition, can be mistaken, or have misrepresented this people, believe that they, though every one of their remonstrances have brought assurances of loyalty and complaints of misrepresentation, have been guilty of the two greatest crimes that Englishmen and Christians can be guilty of by flying in the face of their king, by rebellion, and setting their God at defiance by perjury. Will it not be thought, on the other side of the Atlantic, at least as likely, that 12 men may be found here at the devotion of a ministry, capable of perjury and murder, as it can be thought here, that 12 men cannot be found there incapable of perjury and treason? Measures such as these are more calculated to raise the rebellion, they are pretended to be pointed at, than to quell it, did it exist. But, Sir, if such is the unhappy temper and complexion of the times, that this step is thought neces

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King, his Majesty returned this Answer:

"My Lords and Gentlemen, "The sincere satisfaction you express in the measures which I have already taken, and the strong assurances you give of supporting me in those which may be still necessary to maintain the just legislative authority, and the due execution of the laws, in my province of Massachusets Bay, give me great pleasure.

"I shall not fail to give those orders which you recommend, as the most effectual method of bringing the authors of the late unhappy disorders in that province to condign punishment."

Proceedings in the Lords on Mr. Wilkes's Appeal upon a Writ of Error.] December 21. Mr. Wilkes's Appeal from the Judgment of the Court of King's bench was ordered to be heard on the 16th of January ensuing. The following is a state of the case:

JOHN WILKES, esq. Plaintiff in Error,

and

Our Sovereign Lord the KING, Defendant. Upon two Judgments in the Court of King's Bench, on two Informations for Libels, viz. One Information for publishing a Libel, entitled, The North Briton, No. 45: and the other for publishing a Libel, entitled, An Essay on Woman.

The Case of the Plaintiff in Error.

Hilary term, 3 Geo. 3. Sir Fletcher Norton, knight, then Solicitor General of his present Majesty, did, by virtue of such, his office, exhibit the aforesaid in formations against the said John Wilkes, in the court of King's-bench, for publishing the compositions, or libels, in those informations mentioned, as containing matters to the purport' and effect, in the said informations respectively specified to which information the said John Wilkes pleaded Not Guilty, and issues were thereupon joined.

The said John Wilkes did not plead, nor was called upon to plead de novo, and the trials were had upon the records so altered and amended, and the said John Wilkes upon his defence at the said trials was convicted. He was afterwards outlawed upon such convictions, but both the outlawries have been since reversed for error. On Wednesday the 27th day of April last, the said John Wilkes, upon the writ of Capias Utlagatum, was committed from the custody of the sheriff of Middle. sex, who apprehended him, to the marshal of the King's-bench, and remained in his custody in the King's-bench prison from that time until the 18th day of June in

Trinity term, 8 Geo. 3. When the Court of King's-bench pronounced the following Judgment against him, upon the information for publishing the North Briton, and the verdict thereon, viz. "That the said John Wilkes, for his offence, do pay a fine to our sovereign lord the King, of 500/. of lawful money of Great Britain, and that he be imprisoned in the custody of the aforesaid marshal for the space of ten calendar months then next ensuing; and the said John Wilkes, present here in court, is committed by the Court here, to the custody of the aforesaid marshal, to be by him kept in safe custody, in execution of the judgment aforesaid, and until he shall have paid the said fine."

And the Court, on the same day, immediately afterwards, pronounced against the said John Wilkes, the following Judgment upon the other information, and the verdict thereon, viz. "The said John Wilkes having been convicted of certain other trespasses, contempts, and misdemeanors, for printing and publishing a certain other libel, entitled, The North Briton, No. 45; for which the said John Wilkes hath this day been sentenced, and ordered by the Court here to pay a fine to our sovereign lord the King, of 500l. and to be imprisoned in the custody of the aforesaid marshal, for the space of ten calendar months. It is considered by the The records of Nisi Prius, transcribed Court here, that the said John Wilkes, from the court rolls, were sent under the for his trespasses, contempts, and misdeseal of the Court, to the right hon. Wil-meanors, in printing and publishing the liam lord Mansfield, his Majesty's chief said obscene and impious libel, entitled, justice of the said court, assigned to try An Essay on Woman, and other impious those issues, and afterwards and before the libels in the aforesaid information specitrial, both the records were altered and fied, whereof he is impeached and conamended, by charging the said composi-victed, do pay a further fine to our sovetions or libels to contain matters to the tenor' and effect, in the same informations respectively specified, instead of purport' and effect.

reign lord the King of 500%. of lawful money of Great Britain, and that the said John Wilkes be further imprisoned, in the

The FIRST ERROR Is assigned by the plaintiff in error, as decisive upon both the judgments, viz. That it does not appear by the said records, that the said sir Fletcher Norton, knight, by whom the said informations against the said John Wilkes were exhibited, had any lawful power, warrant, or authority, according to the law of the land, to exhibit the said informations in the records aforesaid specified; and, therefore, that the said informations are not sufficient informations in law, whereon to convict the said John Wilkes of the offences in and by the same informations charged upon him, and to ground the aforesaid judgments against him.

custody of the said marshal, for the space of twelve calendar months, to be computed from and after the determination of his aforesaid imprisonment, for printing and publishing the said other libel, entitled, The North Briton, No. 45. And it is further considered by the Court here, that the said John Wilkes do give security for his good behaviour, for the space of seven years, to be computed from and after the end and expiration of the said twelve calendar months, to be computed as aforesaid; to wit, himself, the said John Wilkes, in the sum of of 1,000l. with two sufficient sureties in 500l. each; and the said John Wilkes present here in court, is committed by the Court here to the custody of the said marshal, to be by him kept in safe custody, in execution of the judgment given by the Court here, and until he shall have paid the said fine, and given such security as aforesaid."

The plaintiff in error hath brought two writs of error in parliament, in order to reverse the judgments given by the Court of King's-bench, and hath assigned for error, on both these judgments, that there was a variance between the records and the original informations filed against him, in this, that the original informations charged him with having published the several libels aforesaid, as containing matters to the purport' and effect, in those informations specified: whereas in the records he is charged with having published the same libels, as containing matters to the tenor' and effect, in the same informations specified.

And thereupon he prayed two writs of Certiorari, which were granted. And by the return thereto, it appears, that the original informations aforesaid, are sent to our sovereign lord the King, in this present parliament, as fully and entirely as the same are filed, entered, and remain in the custody of the said lord chief justice of the court of King's-bench; and thereby, it also appears, that the said records, and the same original informations, are consistent, and that there is no variance between them: wherefore on the part of the plaintiff in error, it is apprehended that he is precluded from making any objection, with respect to the propriety of the aforesaid amendments and trials, under the above circumstances, that being a question proper to be agitated in the court of King's-bench only, which has decided upon it, and not the subject matter of a writ of errors.

[ VOL. XVI. ]

Whereupon the plaintiff in error humbly hopes, that the judgments of the Court of King's-bench will be deemed erroneous, and will be reversed, for the following (among other)

REASONS:

I. Because the said informations are exhibited and filed by the said sir Fletcher Norton, as his Majesty's solicitor general, ex officio, when, by virtue of such his office, he had no general authority so to do.

II. Because it does not appear, that he had any special authority so to do.

Much doubt has been formerly entertained, by those who were most eminently distinguished for their knowledge of the criminal laws of this country, whether any criminal informations were lawful. The constructions of Magna Charta, cap. 29, some ancient statutes, and books of the law, declare and agree, That no man can be charged, but by indictment or presentment.-In the case of the King and Birchett and others, 1 and 2 William and Mary, reported in 5th Mod. 463, and there called Prynne's case, sir Francis Winnington averred, that lord chief justice Hale had often said, "That if ever informations came in dispute, they could not stand, but must necessarily fall to the ground."-It is admitted, however, that the court of King's-bench in that case held, that informations lay at common law.

The present question therefore will be, Who are the officers known to the law, and described in the law books, as the persons with whom only this right of exhibiting informations ex officio rested?—It may be clearly collected, from the authority of the legislature, and the law books, that these officers were only the king's attorney general, and the king's coroner, [2 L]

to which latter is always added, in such | record-and fol. 122, he says, the way of cases, the title of attorney also-No act apprizing the Court is, by dedit curiæ of parliament, no law book, mentions any hic intelligi et informari,' before any proother officer, as having this power in any cess which is done by a sworn officercase, or under any circumstances.-From Filed of record. the king's coroner this power was taken away by the statute 4 and 5 William and Mary, cap. 18, and was then left in the attorney general only.-Serjeant Hawkins in his second volume of Pleas of the Crown, fol. 268, observing upon that statute's taking away this power from the king's coroner and attorney only, says, from whence it follows, that informations exhibited by the attorney general remain as they were at common law.

Such informations can only be exhibited in the court of King's-bench, of which court the king's attorney general and the king's coroner and attorney, commonly called the master of the Crown-office, are officers upon record, and have their known seats and places there as such.

Sir Bartholomew Shower, in his reports fol. 114, in the same case above mentioned, in 5 Mod. argues and observes, upon the statute 31 Elizabeth, cap. 5, and its proviso in sect. 3, providing "That that act shall not extend to any such officers of record as have, in respect of their offices, theretofore lawfully used to exhibit informations," that it is the judgment of parliament, that there were officers to exhibit them, and those that are meant must be the attorney and his deputy the coroner, for I know, says he, no other.-It may be thought that sir Bartholomew Shower is inaccurate in calling the coroner deputy to the attorney, because the coroner has a superior seat in the court of King's-bench to the attorney.-But sir Bartholomew Shower must be understood to speak of the coroner, as deputy only in this instance, he not having equal power with the attorney over the information when exhibited; for the coroner cannot put a stop to it even though he should have the king's warrant under his sign manual for the purpose; and yet the attorney general can, by virtue of his office, stop it at once by a noli prosequi, which appears by the case of the King v. Benson, 1 Vent. 33. Sir Bartholomew Shower, fol. 120, says further, That in case of malicious prosecution, no action lies against the attorney or coroner, any more than against a grand juror or prosecutor: and the reason given for it is, because they are upon their oaths, and so, says he, they (meaning the attorney and coroner) are here as officers upon

If it be contended, that during the vacancy of the office of attorney general, his authority, in this respect, devolves upon the solicitor general; it is answered, that no law book, or judicial determination, warrant that argument. It is admitted that there are some modern instances in the rolls of the Crown-office, of informations filed by the solicitor general, ex officio, some of which describe the vacancy of the office of attorney general, as if that was the circumstance from which the solicitor general derived his authority, and raised to himself this power. But as the others are silent about such vacancy, they must prove a general original authority, or nothing; because if a special authority is to give the title, it must, by the rules of law, be set forth in the record, for nothing out of the record can warrant the judgment upon the record.-There does not appear to be one instance of a litigation, or judicial opinion, concerning such informations filed by the solicitor general.

It appears upon the records, that the attorney general became the prosecutor of the present informations, before the judgments were given. But no adoption afterwards, by the attorney general, of these illegitimate offspring can sanctify their birth.--If the informations were bad when they were filed, no subsequent act whatsoever could make them good.

Wherefore, as the legislature have not substituted, nor meant to substitute the solicitor general, or any other person or persons, in the room of the coroner, from whom they took this power, or in the place of the attorney general, during the vacancy of that office, as it was always in the power of the king to supply that vacancy at any moment he pleased; as the legislature have left the attorney general the only known officer in law, authorised to exhibit criminal informations ex officio; as the solicitor general is no sworn officer of the court of King's-bench, either filed of record, or otherwise; as all the lawbooks are consistently silent, about any power lodged in him for such purpose; as this power has of late time only been usurped by the solicitor general in some modern instances, and those too varying in their form, as if he did not know on what ground he claimed or exercised the power;

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