THE Spirit and eloquence which are HE fpirit and eloquence which are

the Minority have drawn forth an answer, that is written in a language of Plaufibility, Refinement, and Addrefs: But, let the rank and útuation of its Author be what they will, he has laid Himself open to the cenfure or approbation of the Public; and, muft therefore, pardon the freedom with which I fhall presume to remark on his perfonal candour, as well as enquire into the truth of his affertions and the fairness of his argument.

Before I proceed, it may not be improper, to bring our attention to the ground on which the refolution, that was the fubject of debate latt feffions, and is ftill the great object of difcuffion, was first

moved.

Mr. Wilkes, then a member of parliament, complained of a breach of privilege, in the violent and unlawful manner in which his houfe had been broke open, his perfon and papers feized; but being expelled, before his complaint was heard, it could not be profecuted in his own name and perfon: But a violation of the privilege of parliament, being an offence against parliament itfelf, not confined to the perfon on whom it is committed, though it ceafed to be the caufe of Mr. Wilkes, it continued to be the cause of the house of commons: As fuch, the complaint was moved ;- as fuch the houfe received it.

In contending for the privilege of parliament, the writer of thefe theets defires, that he may be understood to mean, not that infolent abuse of privilege which has made its name odious, and its existence intolerable, by which members of parliament have ufurped a power of making themfelves judges of their own caufts, and January, 1765.

avengers of their own quarrels ;-by which the courfe of law and juftice have been obstructed, just debts whith-held from many unhappy creditors, and property detained from its true inheritor.

He begs leave, to mark out a diftinction between the privilege and prerogativs of parliament; defining the one to be the exercife of a tyrannous and oppreffive jurifdiction over the rest of the fubjects: The other to confift in that of protection, which fecures the reprefentatives of the people from the power of the crown. On keeping this privilege facred and inviolate, the freedom of parliament, and of confequence fequence the being of our constitution,

By a late refolution of both houses it was declared, "That there is no privilege in cafe of a feditious libel." This refolution fubjects a member of parliament to the fame procefs of law, that every other fubject is liable to, in the cafe of a libel. But if a member of parliament for writing a libel has been treated in a manner that the law does not warrant, there still muft be a breach of privilege. Wherever the law has been violated in the perfon of a member of parliament, privilege has been violated alfo.-King Charles 1lt, accufed five members of parliament of high treafon; and, because there is no privilege in the cafe of treafon, he thought he had a right to feize upon their perfons,-feal up their papers, and ufe them as traitors.-But, without a legal and well-grounded charge of treason, the house would not fubmit to the feizure of the perfons and papers of their members: They voted, therefore (before the king came in perfon to demand thein) "The fealing up of the latter, and the attempt to feize the former, an high breach of privilege."

I fhall not compare Mr. Wilkes himself to any of thofe great patriots; yet, fo far their cafes are alike, that the charge of treason was as merely fictitious in one inftance as in the other.

It was thought neceffary, therefore, to form the refolution in the shape that it appeared on two accounts:

In the first place, it was proper to declare the illegality of the manner of pro ceeding against Mr. Wilkes, there being no privilege as to the matter of a libel. And,

Their fecond care was, "That in afferting the privilege of parliament, they

B

might

might provide for the liberty of the fubject in general.

In purfuance of thefe principles the refolution was thus moved by Sir. Wm. Meredith, Bt. and feconded by Sir Geo. Saville, Bt.

"That a general warrant for apprehending and feizing the authors, printers and publishers of a feditious libel, together with their papers, is not warranted by

law."

This was moved as leading to another confequential to it; "That fuch warrant, if executed, is a violation of the rights of the fubject; and in cafe of a member of this houfe, is a breach of the privilege of this houfe."

fender of the minority of mifreprefenting the question himself, after charging the gazetteer with the fault. The truth is this;—The gazetteer has formed a question of his own, effentially different from any that was propofed in the house.The defender of the minority has stated the question exactly as it was moved and feconded by Sir W. M. and Sir G. S. This is the fole object of his attention and defence. Had he taken upon him to justify the queftion, as it was altered by one of the majority, to ferve the purposes of the leaders of the majority, he ought to have changed the title and tenor of his performance. It would then have been à defence of the majority.

In the courfe of the debate, indeed, it became neceffary to defend the firft refolution in its feparate state, on its own bafis. -On the fame ground it has been the fashion to write.-The gazetteer of the 23d of May, fuppreffes all mention of privilege. The defender of the minerity is likewife pleafed to drop the confideration of privilege, and juttify the refolution only as it afferts the right of the house of commons to decide on the legality of a queftion, that affects the liberty of the fubject.-On this principle he has written for the information of all ranks of people, with that fpirit and eloquence with which he pleaded their caufe in parliament. And however, his public merit may be decried by minifters, and the fervants of those minifters, who crouch under the fuperiority of his talents; yet his country will rejoice in feeing his brilliant faculties employed in the fupport of freedom and the conftitution; after the example of his illuftrious ancestor, who joined his virtuous labours with the ancellor of a noble duke, whofe lofs every honelt heart is now lamenting, in fixing the fceptre, on a bafis of liberty, in the hands of the royal houfe that now poffefs it; and on the fame principle let us pray they ever may poffefs it.

The ministerial writer accufes the de

ing and feizing the authors, printers and publishers of a feditious [and treasonable] libel, together with their papers, is not warranted by law." [altho' fuch warrant has been iffued according to the usage of office, and hath been frequently produced to, and fo far as appears to this house, the validity thereof, hath never been debated in the court of king's bench, but the parties thereupon have frequently been bailed by the faid court.]

At first, one is at a lofs to guess for what end this long paragraph was added to the queftion; but the defender of the majority informs us, "That the circumftance of admitting to bail, perfons apprehended under fuch warrants, is of fuch importance to the queftion of the legality of the warrants, that in the opinion of an old and experienced lawyer, who will ever be efteemed an honour to the profeffion, it implies no less than an imputation of perjury to have fuppofed fuch practice to have prevailed in the court of king's bench, unless the legality of the warrants had at the fame time been acknowledged by the court."

I don't know who the ancient lawyer is, whom the writer fpeaks of; but (with deference to his character and age) he seems to have forgotten (if he ever knew) the practice of the courts, in which questions of this fort ufually are agitated. For

when

when a prifoner is brought before them in order to be bailed, the court will remand or bail, according to their ideas of the offence named in the warrant of commitment, without officiously fcrutinizing either the form of the warrant, or the authority by which it is issued.—When Mr. Wilkes was brought by Habeas Corpus before the court of common pleas, he was not discharged on account of the illegality of the warrant: The warrant was not then before the court: But when he tried his action for the falfe imprifonment, then the legality of the warrant was debated,then was its illegality declared. If then the purpose of this part of the amendments was to establish an opinion of the legality of the warrant, it has failed to answer even that bad purpofe. For furely it can answer no good purpofe to justify fuch a warrant in any cafe but treafon.

The other addition of the word [treafonable,] was made (it is given out) in order to give the public a true Idea of the cafe upon which the question was agitated: For the warrant of Lord Halifax was not for a feditious, but for a feditious and treasonable libel.-But how does the imputation of treason give a true idea of a tafe in which, in fact, there was no treafon? A libel is one crime, treafon is another. When once a writing becomes treafon, it ceases to be a libel,-it is treaJon-Mr. Wilkes was tried for being the author and publisher of a libel: He was convicted of a libel, not of treason. Had he committed treason, one cannot fuppofe there would have been a failure of justice in profecuting him to the extent of his crime. The North Briton, however, was described in the warrant "to be a feditious and treasonable libel." But is an epithet inferted in a warrant to alter the nature of a crime? God forbid! At that rate an unhappy victim might be judged,-not after the nature of his crime, but according to the number and weight of accufations with which an attorney general may be pleased to load him.

I will not, at this time, point out the fatal confequences of establishing a power of conftruing and extending treafon;

I will not now rehearfe all the execrable deeds of tyranny, which, under this very power and doctrine of conftructive treafon, have been perpetrated in nations that were once as fice as Great Britain is; but

I fhall be bold to affert, that as the charge of treafon, implied in the warrant of Lord Halifax, was falfe, to the adding of it to the question must give the public a falfe idea of the cafe *.

The defender of the majority has imputed every ridiculous and bad motive to thofe gentlemen who moved and supported the quction.-May, I then be forgiven, if I allow myfelf to guefs (and I afk pardon if I am wrong) the reafon why the word treasonable was contended for Undoubtedly it gives an idea of extent to the propofition that was never meant; an appearance of interfering with an neceffary power of government. For, as all treasonable papers may in fome fenfe come under the defcription of treasonable libels, a cautious minifter might think himself precluded from iffuing his warrant to seize fuch papers as actually contain trealon, and for the detection or prevention of treafon ought to be fearched after and feized.

There were a few then perhaps (and a few were worth adding to fo flender a majority) that would have confented to the queftion, as it first food, who detached themself from it, when it became fo enlarged. By this fineffe, among others, the fortune of the motion was decided.

The defender of the majority, I prefume, therefore, did not think it incumbent upon him to write in praife of an expedient that feems contrived to pervert his own and the good intention of his friends; and to deprive the public of a declaration of parliament that would at least have been a guide to all future minifters in the exercise of a very dangerous difcretionary power.

The intention of thefe amendments (it is faid) did not escape the penetration of

The Earl of Briftol having exhibited a charge of treafon against the Earl of Clarendon; alleged, that he had endeavoured to alienate the affections of his majesty's fubjects, by venting opprobricus. fcandals against his majefty's perfon; and, that he had traduced both houfes of par-. liament: The judges were ordered to give their opinions; Whether there be any treafor in the charge or no? They unanimouly agreed in their opinion, that, if the matters alleged in the faid charge were admitted to be true, altho' alleged to be traitorously done, yet, their is no treajon in it. Lord's journals, 3d July, 1663. B &

gen.