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held, and ought not to hold in the cafe of any criminal profecution whatsoever; by which, all the records of parliament, all history, all the authorities of the graveft and fobereft judges are entirely refcinded; and the fundamental principles of the constitution, with regard to the independence of parliament, torn up and buried under the ruins of our moft established rights.

We are at a lofs to conceive with what view fuch a facrifice fhould be propofed, unless to amplify, in effect, the jurifdiction of the inferior, by annihilating the ancient immunities of this fuperior court.

The very question itself, proposed to us from the Commons, and now agreed to by the Lords, from the letter and fpirit of it contradicts this affertion; for, whilft it only narrows privilege in criminal matters, it establishes the principle. The law of privilege, touching imprisonment of the perfons of Lords of Parliament, as stated by the two standing orders, declares generally, That no Lord of Parliament, fitting the parliament, or within the ufual times of privilege of parliament, is to be imprifoned or restrained without fentence or order of the House, unless it be for treafon or felony, or for refufing to give fecurity for the peace, and refufal to pay obedience to a writ of Habeas Corpus.

The first of these orders was made after long confideration, upon a dispute with the king, when the precedents of both Houses had been fully inspected, commented upon, reported, and entered in the journals, and after the king's council had been heard. It was made in fober times, and by a House of Peers, not only loyal, but devoted to the crown; and it was made by the unanimous confent of all, not one diffenting. These circumstances of folemnity, deliberation, and unanimity, are fo fingular and extraordinary, that the like are scarce to be found in any instance among the records of parliament.

When the two cafes of furety for the peace and Habeas Corpus, come to be A confidered, it will be found that

they both breathe the fame fpirit, and grow out of the fame principle.

The offences that call for furety and Habeas Corpus, are both cafes of prefent continuing violence, the proceedings in both have the fame end, viz. to reprefs the force and to difarm the offender..

The proceeding ftops in both when that end is attained; the offence is not profecuted nor punished in either; the neceffity is equal in both, and if privilege was allowed in either, fo long as the neceffity lafts, a Lord of Parliament would enjoy a mightier prerogative than the crown itself is intitled to. Lastly, they both leave the profecution of all misdemeanours still under privilege, and do not derogate from that great fundamental, that none fhall be arrested in the courfe of prosecution for any crime under treason and felony.

These two orders comprise the whole law of privilege, and are both of them ftanding orders, and confequently the fixed laws of the House, by which we are all bound, until they are duly repealed.

The refolution of the other House now agreed to, is a direct contradiction to the rule of parliamentary privilege, laid down in the aforesaid standing orders, both in letter and spirit. Before the reafons are stated it will be proper to premise two obfervations:

First, That in all cafes where security of the peace may be required, the Lord cannot be committed till that fecurity is refufed, and confequently the magiftrate will be guilty of a breach of privilege if he commits the offender without demanding that security.

Secondly, Altho' the security should be refused, yet, if the party is committed generally, the magiftrate is guilty of a breach of privilege, because the party refusing ought only to be committed till he has found fureties; whereas, by a general commitment, he is held fast, even tho' he should give fureties, and can only be discharged by giving bail for his appearance.

This being premised, the first objec tion is to the generality of this refolu

tion, which, as it is penned, denies the privilege to the fuppofed libeller, not only where he refuses to give fureties, but likewife throughout the whole profecution, from the beginning to the end; fo that, although he fhould fubmit to be bound, he may, notwithstanding, be afterwards arrested, tried, convicted, and punished, fitting the parliament, and without leave of the house, wherein the law of privilege is fundamentally misunderstood, by which no commitment whatsoever is tolerated, bụt that only which is made upon the refusal of the fureties, or in the other excepted cafes of treason or felony, and the Habeas Corpus.

If privilege will not hold throughout in the case of a feditious libel, it must be because that offence is fuch a breach of the peace, for which fureties may be demanded; and if it be fo, it will readily be admitted, that the cafe comes within the exception, "Provided always, that fureties have been refufed, and that the party is committed only till he fhall give fureties."

But first, this offence is not a breach of the peace; it does not fall within any definition of a breach of the peace, given by any of the good writers upon that fubject; all which breaches, from menace to actual wounding, either alone or with a multitude, are described to be acts of violence against the perfon,goods, or poffeffions, putting the fubject in fear by blows, threats, or geftures. Nor is this cafe of the libeller ever enumerated in any of these writers among the breaches of peace; on the contrary, it is always defcribed as an act tending to excite, provoke, or produce breaches of the peace; and although a secretary of ftate may be pleased to add the enflaming epithets of treasonable, traiterous, or feditious, to a particular paper, yet no words are strong enough to alter the nature of things. To fay then, that a libel, poffibly productive of fuch a confequence, is the very confequence fo produced, is, in other words, to declare, that the cause and the effect are the fame thing.

Secondly, But if a libel could poffibly, by any abuse of language, or has any where been called inadvertently, a breach of the peace, there is not the leaft colour to fay, that the libeller can be bound to give fureties for the peace, for the following reafons:

Because none can be fo bound, unless he be taken in the actual commitment of a breach of the peace, ftriking or putting fome one or more of his majesty's fubjects in fear:

Because there is no authority, or even ambiguous hint in any law-book, that he may be so bound:

Because no libeller, in fact, was ever fo bound:

Becaufe no crown-lawyer, in the most defpotic times, ever infifted he should be fo bound, even in days when the press fwarmed with the most invenomed and virulent libels, and when the profecutions raged with fuch uncommon fury against this fpecies of offenders; when the law of libels was ransacked every term; when lofs of ears, perpetual imprifonment, banishment, and fines of ten and twenty thousand pounds, were the common judgments in the star chamber, and when the crown had affumed an uncontroulable authority over the prefs.

Thirdly, This resolution does not only infringe the privilege of parliament, but points to the restraint of the personal liberty of every common fubject in thefe realms, feeing that it does, in effect, affirm, that all men, without exception, may be bound to the peace for this offence.

By this doctrine, every man's liberty, privileged as well as unprivileged, is furrendered into the hands of a fecretary of ftate: he is by this means empowered, in the first inftance, to pronounce the paper to be a feditious libel, a matter of fuch difficulty, that fome have pretended, it is too high to be intrusted to a special jury, of the first rank and condition; be is to understand and decide by himself, the meaning of every inuendo; be is to determine the tendency thereof, and brand it with his own epiEe a thets &

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thets; he is to adjudge the party guilty, and make him author or publisher as he fees good; and lastly, he is to give sentence by committing the party. -All these authorities are given to one fingle magistrate, unaffifted by council, evidence, or jury, in a cafe where the law fays, no action will lie against him, because he acts in the capacity of a judge. From what has been obferved, it appears to us that the exception of a feditious libel from privilege, is neither founded on ufage or written precedents, and therefore this resolution is of the first impreffion; nay, it is not only a new law, narrowing the known and antient rule, but it is likewife a law ex poft facto, pendente lite, et ex parte now firft declared to meet with the circumftances of a particular cafe; and it must be farther confidered, that this house is thus called upon to give a fanction to the determinations of the other, who have not condescended to confer with us upon this point, till they had pre-judged it themselves.

This method of relaxing the rule of privilege, cafe by cafe, is pregnant with this farther inconvenience, that it renders the rule precarious and uncertain. Who can foretel where the house will stop, when they have by one infringement of their own ftanding orders, made a precedent, whereon future in fringements may, with equal reason, be founded? How fhall the fubject be able to proceed with fafety in this perilous bufinefs? How can the judges decide on these or the like queftions, if privilege is no longer to be found in records and journals, and ftanding orders? Upon any occafion privilege may be enlarged, and no court will venture, for the future, without trembling, either to recognize or to deny it.

We manifeftly fee this effect of excluding, by a general refolution, one bailable offence from privilege to-day, that it will be a precedent for doing fo by another, upon fome future occafion, till, instead of privilege holding in every cafe not excepted, it will, at laft, come to hold in none, but fuch as are exprefsly faved.

When the cafe of the Habeas Corpus is relied upon, as a precedent to enforce the declaration, the argument only fhews, that the mischief afore-mentioned has taken place already, fince one alteration, tho' a very just one, not at all applicable to the present question, is produced to justify another that is unwarrantable.

But it is strongly objected, that if privilege be allowed in this cafe, a lord of parliament might endanger the conftitution by a continual attack of fucceffive libels; and if fuch a perfon fhould be fuffered to escape, under the shelter of privilege, with perpetual impunity, all government would be overturned, and therefore it is inexpedient to allow the privilege now, when the time of privilege, by prorogations, is continued for ever without an interval.

This objection fhall be answered in two ways. 1, If inexpediency is to deftroy perfonal privilege in this case of a feditious libel, it is at least as inexpedient, that other great misdemeanors should stand under the like protection of privilege; neither is it expedient, that the fmaller offences should be exempt from profecution in the person of a lord of parliament; fo that if this argument of inexpediency is to prevail, it must prevail throughout, and subvert the whole law of privilege in criminal matters; in which method of reasoning there is this 'fault, that the argument proves too much.

If this inconvenience be indeed grievous, the fault is not in the law of privilege, but in the change of times, and in the management of prorogations by the fervants of the crown, which are fo contrived, as not to leave an hour open for juftice. Let the objection nevertheless be allowed in its utmost extent, and then compare the inexpediency of not immediately profecuting on one fide, with the inexpediency of ftripping the parliament of all protection from privilege on the other. Unhappy as the option is, the public would rather with to fee the profecution for crimes fufpended, than the parliament

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totally unprivileged, although, notwithstanding this pretended inconvenience is fo warmly magnified on the prefent occafion, we are not apprized that any fuch inconvenience has been felt, though the privilege has been enjoyed time immemorial.

But the fecond and beft answer, because it removes all pretence of grievance, is this, that this houfe, upon complaint made, has the power (which it will exert in favour of justice) to deliver up the offender to profecution.

It is a difhonourable and an undeferved imputation upon the lords, to fuppose, even in argument, that they would nourish an impious criminal in their bofoms, against the call of offended juftice, and the demand of their country. It is true, however, and it is hoped that this house will always fee (as every magistrate ought that does not betray his truft) that their member is properly charged; but when that ground is once laid, they would be ashamed to protect the offender one moment: furely this truft (which has never yet been abused) is not too great to be repofed in the high court of parliament; while it is lodged there, the public justice is in fafe hands, and the privilege untouched; whereas, on the contrary, if for the fake of coming at the criminal at once, without this application to the house, perfonal privilege is taken away, not only the offender, but the whole parliament, at the fame time, is delivered up

to the crown.

It is not to be conceived, that our ancestors, when they framed the law of privilege, would have left the cafe of a feditious libel (as it is called) the only unprivileged mifdemeanor. Whatever else they had given up to the crown, they would have guarded the cafe of fuppofed libels, above all others with privilege, as being moft likely to be abused by outrageous and vindictive prosecutions.

But this great privilege had a much deeper reach, it was wifely planned, and hath hitherto, thro' all times, been refolutely maintained.

It was not made to fcreen criminals, but to preferve the very being and life of parliament; for when our ancestors confidered, that the law had lodged the great powers of arreft, indictment, and information, in the crown, they faw the parliament would be undone, if, during the time of privilege, the royal process fhould be admitted in any misdemeanor whatsoever; therefore they excepted none. Where the abuse of power would be fatal, the power ought never to be given, because redress comes too late.

A parliament under perpetual terror of imprisonment, can neither be free, nor bold, nor honeft; and if this privilege was once removed, the most important queftion might be irrecoverably loft, or carried by a fudden irruption of meffengers, let loofe against the members half an hour before the debate.

Laftly, as it has already been observed, the cafe of fuppofed libels is, of all others, the most dangerous and alarming to be left open to prosecution during the time of privilege.

If the severity of the law, touching libels, as it hath fometimes been laid down, be duly weighed, it must strike both houfes of parliament with terror and dismay.

The repetition of a libel, the delivery of it unread to another, is faid to be a publication: nay, the bare possesfion of it has been deemed criminal, unlefs it is immediately destroyed or carried to a magiftrate.

Every lord of parliament then, who hath done this, who is falfly accused, nay, who is, tho' without any information, named in the fecretary of state's warrant, has loft his privilege by this refolution, and lies at the mercy of that enemy to learning and liberty, the meffenger of the prefs.

For thefe, and many other forcible reafons, we hold it highly unbecoming the dignity, gravity, and wisdom of the houfe of peers, as well as their justice, thus judicially to explain away and diminish the privilege of their perions, founded in the wildom of ages, declar

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Obferved our lands, (for I then liv. ed in a wet clay country) after having borne three crops of corn, which is the common method of husbandry in thofe parts, produced good quantities of grafs for two or three years, after which the ground began to fadden, and then the produce diminished, and rushes grew in abundance.

This led me to think, that whatever would contribute to keep the particles difunited would be of great fervice: and further, I imagined, that clay or foil burnt would never re-unite; which proved a fact: moreover, that the falt it gained by paffing through the fire would enrich the land, which appeared from its produce when denfhired; tho' I never approved of that husbandry, as the foil was thereby diminished, which is already too thin in that country. This determined me to attempt burning clay, which I did in the manner following.

1 caused a labourer to dig as much clay as made a number of walls of nine inches high, and of the fame thickness, and the fame diftance from each other, in a parallel direction, as would make

about a fquare of three yards: thefe vacancies, being like tunnels of brickkilns, I filled with brushwood, and on that threw fome cinders, or fmall-coal of which I had fufficient quantities, then, living nigh fome collieries; after which I covered the whole fquare with clay about three inches thick, leaving the ends of the tunnels open, which I then lighted on the windward-fide: as foon as the fire had got fufficient head, I ftopt the mouths of them; and when I perceived the covering was almost burnt through, I had a fmall fprinkling of cinders, or small-coal, thrown on the heap, and then another covering of clay of the fame thickness; and thus I went on, till my fire was feven or eight feet high.

When I found my fire was very well kindled, which was commonly about the time I put my fecond coat on, I ufed to enlarge the base of the fire, by continuing the tunnels, and by adding new ones to the fides, (which were filled and covered as the others, and then lighted) till I made my fire about seven yards fquare; for I foon found it never burnt well in the middle if it was fo large at first.

Care should be taken the labourer does not put on too thick a coat at once, as it will be apt to fmother the fire : befides, by confining the heat in too much, the clay was apt to run and vitrefy, which was then of little use.

As foon as the heap was fufficiently cool (for the fooner it is laid on the land the better) I put about ten large cartloads on a ftatute acre, and found it an admirable manure for either meadow, pafture, or corn: for the latter it will not last more than three crops, though longer for the two former and with this I have made prodigious improvements; but I dont believe it will anfwer for a fandy foil, as it will render it ftill lighter.

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This manure I burnt all times of the year, though flower in the winter than fummer, but always faftelt in windy weather.

This, I fancy, may be burnt with brush

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