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The North

Briton.

THE NORTH BRITON.'

or country proved a bar to the character of a patriot. The favourites of the people seem to be chosen with as little regard to merit as the favourites of the court; but in the one case they are commonly selected by caprice; in the other, they are almost always the accidental representatives of a grievance or a principle.

Wilkes' journal, which originated with the administration of Lord Bute, was happily entitled "The North Briton,' and from its boldness and personality soon obtained a large circulation. It is surpassed in ability and equalled in virulence by the political press of the present day; but at a time when the characters of public men deservedly stood lowest in public estimation, they were protected, not unadvisedly perhaps, from the assaults of the press by a stringent law of libel. While a latitude of invective, which the parliamentary decorum of the present time would not tolerate, was permitted and even encouraged by applause in the Great Council of the nation, the law of privilege, as well as the law of the land, was strictly enforced against a printer who should venture to divulge the proceedings of either House Criticism on of Parliament. It had been the practice since the

the royal speech.

Revolution, and it is now acknowledged as an important constitutional right, to treat the Speech from the Throne, on the opening of Parliament, as the manifesto of the minister; and in that point of view, it had from time to time been censured by Pitt, and other leaders of party, with the ordinary

A GENERAL WARRANT.

license of debate.

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But when Wilkes presumed to use this freedom in his paper, though in à degree which would have seemed temperate and even tame had he spoken to the same purport in his place in Parliament, it was thought necessary to repress such insolence with the whole weight of the law. A warrant was issued from the office of the Secretary of State to seize-not any person named --but 'the authors, printers, and publishers, of the seditious libel, entitled the North Briton, No. 45.' Under this warrant, forty-nine persons were arrested and detained in custody for several days; but as it was found that none of them could be brought within the description in the warrant, they were discharged. Several of the individuals who had been so seized, brought actions for false imprison- Validity of general ment against the messengers; and in one of these warrants. actions, in which a verdict was entered for the plaintiff under the direction of the Lord Chief Justice of the Common Pleas, the two important questions as to the claim of a Secretary of State to the protection given by statute to justices of the peace acting in that capacity, and as to the legality of a warrant which did not specify any individual by name, were raised by a Bill of Exceptions to the ruling of the presiding judge, and thus came upon appeal before the Court of King's Bench. The case was argued on behalf of the plaintiff in error (the defendant in the action) by the SolicitorGeneral De Grey; and on behalf of the plaintiff below, by Dunning, one of the greatest Banc lawyers ever known in Westminster Hall. He

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ARGUMENTS USED

shewed that a Secretary of State was not a conservator of the peace within the meaning of any act of Parliament, and had no authority to issue a warrant for the seizure of persons and papers except in the case of high treason; that even if he had such authority, the warrant under which the defendant justified, was altogether invalid. He argued if author, printer, and publisher,' without naming any particular person, be sufficient in such a warrant as this, it would be equally so to issue a warrant generally 'to take up the robber or murderer of such a one.' This is no description of the person, but only of the offence; it is making the officer to be judge of the matter in the place of the person who issues the warrant. Such a power would be extremely mischievous, and might be productive of great oppression. He concluded by citing the principal text-writers on Crown Law to shew that there must be an accusation; that the person to be apprehended must be named, and that the officer is not to be left to arrest whom he thinks fit.'

The counsel for the Crown seems to have made little more than a colourable show of maintaining the efficacy of the warrant, either as intrinsically good, or as emanating from competent authority. He relied rather upon an inferior, but much more tenable position, that the officer, the defendant on the record, was at all events bound to act in obedience to his warrant, and was, therefore, justified in what he had done. An act of the last reign had given

BEFORE THE COURT.

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159

the King's

protection to officers 'for anything done in obedience to any warrant,' notwithstanding any defect of jurisdiction in the justice by whom it was issued. And it might well have been argued that the officer was not to concern himself with a question as to the legal sufficiency of the instrument which he was ordered to enforce; still less to raise a doubt as to the title of the great functionary from whom, in this instance, the authority proceeded. The Court of King's Bench, however, intimated a Decision of strong opinion against the Crown upon the impor- Bench. tant constitutional questions which had been raised, and directed the case to stand over for further argument; but when the case came on again, the Attorney General Yorke prudently declined any further agitation of the questions, and submitted to the judgment of the Court upon the bye-point that the defendants had not acted in 'obedience' to the warrant, inasmuch as the plaintiff did not come within the description of 'author, printer, or publisher,' therein mentioned.

k

These proceedings were not brought to a close until the end of the year 1765, long after the administration under which they were instituted, had ceased to exist. It would be unfair, however, to charge the government over which Grenville presided with any design of invading the liberty of the subject by issuing this general warrant; since it was an unquestionable fact, and, indeed, it

k 3 Burrow's Reports, p. 1760.

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The question really left undecided.

QUESTION RAISED ON THE PART OF THE CROWN.

had been expressly found by the Bill of Exceptions that 'several of the like warrants had been granted at different times, from the time of the Revolution to the present time, by the principal secretaries of state, and had been executed by the messengers in ordinary for the time being.' Such a warrant might, therefore, have been issued in the ordinary course from the office of the Home Departinent, without any sinister design, but as there could be no question as to its illegality, it was the duty of the crown lawyers to have withdrawn it, and made amends to the parties against whom it had been enforced, as soon as their attention was directed to the defect which rendered it a nullity. Nor was this illegal practice a mere topic for declamation. Such a power, as had been argued by Dunning, might be productive of great oppression; and in this case had actually led to the apprehension and detention of a great number of persons who never could have been molested, had the process been confined to certain individuals against whom a probable cause of complaint could have been made

out.

The question of the validity of general warrants, though deliberately raised by the crown lawyers in their Bill of Exceptions, was not decided, in consequence of the case being determined on another point. But no warrant of this description has since been issued; and no writer has since attempted to defend such a warrant.

The proceedings against Wilkes himself were