been misrepresented in the political writings of thefe times, merely for the opportunity of making fuch objections. The words are thefe, "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." There is fo effential a difference between these two questions, that it is evident, an honeft man might fairly and confiftently have voted for the one, and against the other. The Minority faw this diftinction; and fo far were they from making the propofition, which thefe writers impute to them, that they framed their motion upon the cafe before them; confined it to a feditious libel; and had both too much fenfe and too fincere a regard for public tranquillity, to ftir captiously so delicate a question of government as that which they are now, with fo little candour, charged with having actually agitated.

Having thus abfolutely mis-stated the question, the fame author proceeds to prove, that the Minority did not act from aby fuch liberal motives. To do this, he sets out with affuming, that the L. C. J. of the C-P- had, in the caufe of Wilkes against Wood, determined the feizure of papers, under fuch warrant, in fuch cafes, to have been illegal. He then affumes, That bills of exceptions prefented in appeal have ever fince been actually depending before the whole bench of judges; and, at laft, roundly afferts, that, in this fituation, it was the duty of the Minority to have waited the iffue of that appeal.

We have seen this writer's exactnefs in ftating the Motion; let us now enquire, if he is more accurate in his detail of the proceedings in Court.

That the question of the legality of the warrant is not now fub judice, nor has ever yet been in a course of legal determination, is proved from all the bills of exceptions, either actually ten

dered or prepared; and that the only queftion depending upon these bills is, Whether the Secretary of State be a Juftice of the Peace, within the equity of the act of 24 George II.* which is a point very material in the defence of the messengers acting under orders, but has no connection with the question upon the legality of the warrant itself.

In the action brought by Wilkes against Wood, after Mr. Wood had pleaded as the messengers had done, and refted his whole defence on the general issue, the court was moved, that the defendant might be permitted to justify under the warrant, in order to bring the matter fully and fairly before the Court; which the Court, for that only reafon, allowed. But when the caufe came to be tried, Mr. Wood, to the furprize of the C. J. deferted his justification; declined the opportunity of bringing the validity of the warrant into debate; and reforted to the old objection, namely, that the Secretary of State was a Juftice of the Peace, and therefore ought to have been made a party defendant in the fuit. In confequence of which, the bill of exceptions offered, ftill turned upon the fame single point, and the question of the legality of the warrant was a fecond time avoided.

In the cause, in which Leach the printer was plaintiff, the messengers pleaded the general iffue, and, at the fame time, a special justification, stating the warrant of Lord Halifax, and the acts which they had done to have been in obedience to, and in the execution of that warrant. At the trial, they entered at large into the proof of the facts alledged in their fpecial juftification, which led the Chief Justice, in ftating the evidence to the jury, to declare it as his clear opinion, that if the facts of the juftification had been proved, the warrant, under which the meffengers had acted, and juftified, was illegal. But as the jury by their verdict were of opinion, that the defendants had failed

ed in their proof, no bill of exceptions could lie upon the question of the validity of the warrant, as no facts were found by the jury, upon which the law could arife, or the exceptions be fupported.

After this candid and exact reprefentation of the proceedings in court, it is evident, that the only question now in legal iffue is, Whether a Secre.ary of State be a Justice of Peace.

But it may be asked, Will not this great question be brought to issue, in the caufe now depending between Mr. Wilkes and Lord Halifax ?

That it may, is certain; that it will, I think, is doubtful. Who knows how much longer a farther use of the advantages of Privilege on one fide, and Distress on the other, may continue to retard the course of this trial! * And is fuch a contingency as this to be cited in proof of a pofitive affertion, that the question itself was actually in iffue, when the motion was depending in the Houfe of Commons? Will any man have the affurance to argue, that the House could not, confiftently with their duty or dignity,have refused to acquiefce under fuch an unconftitutional and illegal exercise of an uncontrouled power in office, on the diftant and precarious fuggeftion only, that it was poffible in fome future action, to be poftponed, in fome degree, at the will of the party accused, this great national point might come to iffue? Yet thus do the advocates of the prefent ministry, and the defenders of this question, humiliate the two Houses of Parliament.

But, it seems, whatever was the apparent conduct of the Minority, they could not be fincere; because, after lofing this question, they refused a bill moved by Sir John Philipps, to regulate

Wilkes, Efq; against the Earl of Halifax, and the three meilengers, who executed the general warrant.

the practice of Secretaries of State in iffuing warrants; which bill, it is alledg; ed, the leaders of the Minority opposedand, upon the evidence of that oppofition, they are now arraigned for infin. cerity.

But can it be seriously believed, that Sir John Philipps, or the ministry, expected to be fupported by the Minority, in bringing in a bill to regulate what they had afferted neither did nor ought to exist? No: for if they acted uniformly, they must neceflarily confine themselves to the fingle cafe before them. By what other conduct could they hope to execute their profeffed plan of providing at once for private liberty and public fafety; but by condemning the wanton ufe of an ufurped power, and. by leaving it uncenfured in extreme cafes, which it is impoffible to describe and diftinguish before they happen?

This reafoning is the more conclufive, because no danger can follow from leaving the law on this footing; for fhould a Secretary of State, upon intelligence of any crime formidable to the commonwealth, be under a neceffity of iffuing fuch a warrant as is now complained; and should his messengers, in pursuit of the offenders, take up an innocent man; if either prejudice or ig norance fhould influence the determination of a jury, would not the officers, thus fuffering for the public, be relieved by the interpofition of parliament? What has paffed, in the matter now depending, proves this incontestibly warrant itself has been generally held illegal. The offence against the state was no higher than publishing a libel no circumstances to make a general warrant neceffary; the proceedings on it ag gravated by wantonnefs, negligence and oppreffion; and, nevertheless, it has not Ddd 2

The

yet

yet incurred the cenfure of parliament. Where then would be the difficulty of defence, in a cale which had circumftances of real juftification to alledge, or in which a warrant, not strictly legal, could be fhewn to have been neceflary, er the danger imminent?

Another reafon to prove the Minority not fincere, is, their proceeding by motion. But it is difficult to comprehend the force of this fingular objection. Perhaps these writers do not know, that nothing is more ufual or regular, in both Houses, than to take up matters of administration separately in either; to exprefs their fente by a general refolution, and upon that refolution to bring in a bill. If this be real ignorance of the fubject, and not contrived to mislead the public, "by hardiness in propagating falle facts," perhaps they will forgive a ftranger, if he should, for their fatif faction, fupply them with that knowledge their friends had fo unfairly concealed.

In the cafe of L. C. J. Keeling*, in the reign of Charles II. upon the information of a private member, of illegal acts in his treatment of juries, the House ordered him to attend at the bar, and finding the chief justice defending himself by precedents, the practice of the courts, and the opinion of the judges, they accepted those authorities in excufe of the judge, whom they accordingly discharged; but they "Refolved, that the precedents and practices of fining juries is illegal."

Here, the Commons proceeded upon the information of a private member ftating a public grievance; they proceeded by Refolution; they decided a gainst precedents and practice, and the opinion of the judges; yet they thought it not inconsistent to condemn the thing, and acquit the person.

In 1680, C. J. Scraggs, having iffued general warrants, impowering officers and their affiftants, to take into cuftody all perfons, whom they fhould fufpect of writing and publishing feditious libels, &c. the Commons interpofed, and,

by Refolution, declared the faid war rants to be arbitrary and illegal; and thereby taught that defpotic and corrupt judge, who, in his age, perhaps, affected to regard the Refolutions of either House of Parliament no more than the Refolutions of a parcel of drunken porters, that the juft refentment of parliament will, in all cafes, fooner or later, overtake the enemies, and vindicate the conftitution of these kingdoms.

More inftances might be urged in juftification of the interpofition of the Commons in cafes of this nature; but more are unnecessary.

It is not unpleasant to obferve, how earnestly the writers upon this subject labour to make the case of Mr. Wilkes pafs for the cause of oppofition; but the manner of the expulfion, the conduct of the Minority, and the evidence of time, all confute the calumny; infomuch that one should think the ministers themfelves would advise these writers not to hang upon a topic which they have long ago called in, and at first perhaps urged fo warmly, more from an officious, and, I am confident, a vain hope of foothing the mind of one man, by an attack upon his nearest relations, than with any ferious expectation of being able to make the late Minority pafs, either in this age, or in the judgment of pofterity, for the factious fuite of any man.

I have now gone through the feveral affertions of thefe judicious advocates, who, guided by an intemperance fimilar to that which lately urged their patrons to advife the difmiffion of Gen. Conway, have in this instance, as their patrons did in the other, revived a just and general difcontent, which might elfe, probably, have fubfided in this inconftant country.

Yet to conclude here, would not be adequate to the caufe. The fame public, which has seen the 220 calumniated members charged with fo many things which they never did, and with defigns which they never formed, fhould now be fulty and fairly informed of their

actual

actual conduct, and their real views, in moving the question of the legality of the warrants.

Let those then learn, if there be any yet fenfible to the feelings, and open to the call of national liberty, that it appearing, in the courfe of the proceedings against Wilkes, that a fubject had been taken into cuftody by a general warrant of apprehenfion, his papers feized, and his perfon kept in clofeft cuftody, upon the charge of a feditious libel, the public inftantly took the alarm, and the illegality of fuch warrants and fuch cuftody, in fuch an offence, became univerfally the topic of difcourfe, and ground of apprehenfion and complaint. When therefore the proceedings against Mr. Wilkes were finished, when the honour of the Crown, and the dignity of Parliament, traduced and injured by the licentious paper complained of, were both vindicated and satisfied, and not till after the expulfion, two gentlemen of diftinguished worth stepped forth, expreffed their opinion of the illegality of the proceedings of Lord Halifax, and took that method, which to them feemed the best, of bringing the great question, on which they thought the effence of private and personal liberty depended, to an amicable debate, and candid difcuffion. The House adopted the idea; the administration acquiefced; a day was named; the miniftry called for various papers, and volumes of records; and when the hour of debate came on, Sir William Mere dith moved, "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.”

It is faid, that in the debate, neither the Minifter himself, nor the Attorney General, defended the legality of the warrant. The M. of G-y, and many others who voted for adjourning the debate, expressly declared their detefta tion of the practice, and their sense of the neceflity of preventing a measure fo dangerous to liberty; and the whole

defence of that day confifted in arguing upon the impropriety of deciding in Parliament, a queftion then depending in a Court of Judicature. They, who maintained the propriety and necessity of the motion, endeavoured to shew the fallacy of this reafoning, and dwelt upon the importance of the question, the violence of the proceeding, the power of Parliament exercifed in fimilar cafes, and the reproach of leaving the liberty of the fubject, in a case of such notoriety, fufpended by a court of law, upon the pretence of Bills of Exceptions, which, when examined, would be found to turn upon other points, and where the decifion, in this matter of univerfal intereft, might be long kept in fufpence, at the will even of the very party accused, Upon a motion being made for adjourn ing the debate for four months, the numbers were found to be 234 for the queftion; and 220 against it; by which this great conftitutional Question, per haps the most important that ever animated the spirit of a free people, has been put, as it is now phrafed, into a due courfe of trial at law in confequence of which candid reference, every method has been taken to delay the fuit, and to avoid decision.

:

Thus this great Question took its rile, thus the Minority moved it, the Miniftry avoided it, the Houfe referred it, the fervants of the Crown have profecuted it in the courts below, and in this tuation our most effential liberty, our undoubted birth-right, stands, I beg pardon, hangs at this hour. For at this inftant of time, Lord Halifax, from a perfeverance (which fome would celebrate for true fpirit) may issue out another general warrant, upon the pretence of the laft libel, the Budget; by that warrant he may order, as he be fore did, fix meffengers, his official intruments, without knowledge to guide, or property to restrain them, to enquire for the author, and to feize on any perfon, whom they may think proper, and his papers; and what law remains in allowed force at this inftant to deter

them